Costly mix-up'

P.B. Sawant. He was a former Chairman of the Press Council of India. - SHIV KUMAR PUSHPAKAR

The higher courts' refusal to stay the Rs.100 crore damages awarded to Justice P.B. Sawant in a defamation case shocks the media.

ON November 14, the Supreme Court Bench of Justices G.S. Singhvi and Sudhansu Jyoti Mukhopadhyaya declined to stay the Bombay High Court's interim direction of September 28 to the television channel Times Now to deposit with the High Court registry Rs.20 crore (in six weeks) and furnish a bank guarantee of a nationalised bank for Rs.80 crore (in 10 weeks) in connection with a defamation case.

The High Court Bench of Justices Nishita Mhatre and B.H. Marlapalle had issued the directive while hearing the channel's appeal against the Pune district court's decree in the case filed by Justice Parshuram Babaram Sawant, former judge of the Supreme Court and former Chairman of the Press Council of India, for the erroneous telecast of his photograph as a scam-accused.

On September 10, 2008, at 6-30 p.m., the channel erroneously showed the picture of Justice P.B. Sawant as that of Justice P.K. Samantha, a retired judge of the Calcutta High Court, who was then allegedly involved in the provident fund scam. The channel claims it corrected its mistake within 15 seconds by stopping the re-telecast of Justice Sawant's picture after being alerted over phone by Justice Sawant's former secretary. But the channel took no effort to tender an apology immediately. Its failure to do so, Justice Sawant alleged, had seriously damaged his reputation. After retirement from the Supreme Court, Justice Sawant had served as Chairman of the Press Council of India for six years and also as president of the International Press Council for six years.

On September 15, 2008, he wrote to the channel calling upon it to apologise publicly and pay damages of Rs.50 crore. The channel replied stating that it had carried a corrigendum on September 23, 2008, and that it was an unintentional error.

Justice Sawant wrote to the channel on September 27, 2008, describing the apology as belated and insincere and demanded a compensation of Rs.100 crore. Thereafter, the channel sought a meeting with Justice Sawant but failed to follow it up.

Subsequently, Justice Sawant, a resident of Pune, filed the defamation suit for damages and compensation at the Pune district court. During the trial, Times Global Broadcasting Co. Ltd, which runs Times Now (defendant), challenged the veracity of the facts alleged by Justice Sawant (the plaintiff). The channel also denied the allegation of defamation stating that it had not received any queries from the public regarding the wrong telecast of Justice Sawant's picture for a short duration.

Asked by the trial court how the mix-up' happened, the channel explained that its database contained numerous photographs, images, videos and so on, and the required content was picked up on the basis of tags associated with each component of the database. The channel pointed out that because of a similarity in the names of the plaintiff and Justice P.K. Samantha, and in the nature of their description (judges) and the tags associated with each component of the database, the automated application picked up the plaintiff's photograph instead of Justice Samantha's.

The channel suggested that perhaps the person who operated the computer, while giving the command, wrongly typed the surname of the plaintiff in place of Justice P.K. Samantha and this led to the wrong photograph being picked up automatically in the system.

Justice Sawant contended that the channel flashed his photograph along with his name while telecasting the story on the provident fund scam. The channel denied this. The trial court recorded thus: How the defendants have displayed the photograph without name as that of plaintiff is not explained by them.

The corrigendum carried by the channel on September 23, 2008, read as follows:

On the 10th September 2008, Times Now erroneously showed Justice P.B. Sawant as an accused in the P.F. scam case. Justice Sawant is a man of high regard and esteem.

The trial court noted that the channel scrolled this corrigendum only after receiving a notice from Justice Sawant and that it did not tender a public apology immediately. Further, the trial court concluded, the viewers of the channel believed at least for two weeks that Justice Sawant was an accused in the provident fund scam case. This belief in the public is nothing but an injury to the reputation of the plaintiff, the trial court judge, V.K. Deshmukh, said in her judgment delivered on April 26, 2011.

Further, considering the sequence of events, she blamed the channel for failing to redress Justice Sawant's grievance by taking corrective measures. The judge also asked why the channel had not issued a public apology except scrolling of a corrigendum, which did not amount to an apology.

The judge reasoned that the defence of absence of mens rea was not available to the channel because it failed to take immediate action to tender a public apology. Examining the law on defamation, the judge said proof of actual loss of reputation of Justice Sawant was not necessary. It was sufficient to establish that the defamatory telecast would damage his reputation. Describing the right to reputation as an absolute personal right, the judge said it was capable of growth and real existence as an arm or a leg. Injury to reputation, therefore, was a personal injury, that is, an injury to an absolute personal right. Quoting the Latin maxim Ubi Jus Ibi Remedium (where there is a right there exists a remedy), she said since the right to reputation was an absolute personal right, the remedy to protect and preserve the same had to exist.

Considering the size and influence of the channel, the effect of the wrongful publication of Justice Sawant's photograph was extremely damaging to his reputation without the need to prove anything further, she concluded. The channel had allowed the defamatory telecast to remain uncorrected for 13 days and in any case for a period of five days after the receipt of the first letter of the plaintiff. This clearly showed that the attitude of the defendants was extremely casual, callous and cavalier, she said in her judgment. Further, the defendants had no intention of arriving at a compromise with the plaintiff and all (that) the defendants wanted the plaintiff [to do] was to chase the defendants, she stated.

The judge declined Justice Sawant's claim for interest at 12 per cent per annum on the damages awarded, saying he had not given any reasons why he was entitled to interest.

Times Now argued before the High Court that the decree could be stayed without furnishing any security or without directing the deposit of any amount. It submitted that the telecast of Justice Sawant's photograph per se did not cause damage to his reputation, integrity, standing or character.

The channel contended that if it had to deposit the entire decreed amount or furnish security for the amount, its right to appeal would be defeated and the appeal would remain pending for years together. The High Court, however, did not find these arguments convincing.

The Supreme Court's refusal to interfere with the High Court's order has dismayed several professional bodies of journalists. The Chairman of the Press Council of India, Justice Markandey Katju, found the award disproportionate. He also termed as incorrect the orders of both the higher courts and urged for their reconsideration.

The International Press Institute termed the award disproportionately high and warned that such large damages could place such an economic burden on media outlets that their survival is seriously threatened as a consequence. The Indian Broadcasting Foundation (IBF) expressed concern that such decisions would cripple the functioning of the media and jeopardise the media business.

The News Broadcasters Association (NBA) said: If innocent errors committed by media are visited with such dire consequences, and if media companies are compelled to pay such disproportionately exorbitant damages despite the issuance of a public apology, it would effectively cripple the functioning of the media.

Any curb of media independence, whether direct or indirect, is a serious threat to the democratic process itself and must not be countenanced. If stipulations such as these become the norm, news media will be targeted at every instance, thereby affecting the very survival and existence of the news industry as a whole, the NBA statement said.

Defamation constitutes a criminal offence under Section 499 of the Indian Penal Code. Under this provision, the plaintiff must prove that the defamatory publication intended to harm his reputation. The civil law of defamation is not codified, and rests on common law. Therefore, in a civil suit for damages the court applies the corresponding rules of English common law insofar as they are consistent with the principles of justice, equity and good conscience.

As Justice Sawant has filed a civil suit for damages, the High Court has to determine on the basis of facts whether the channel's telecast of his photograph per se was defamatory and whether it has promptly and sincerely taken the required corrective and remedial steps. These findings will help the High Court decide whether the damages awarded by the trial court are exorbitant and disproportionate to the nature of the tort, as many perceive it to be.