pre-trial injunctions against news publications can have serious consequences for freedom of speech- Supreme Court of India

The Supreme Court has stated that courts should not grant ex-parte injunctions against the publication of a news article, except in exceptional cases, as it may have severe ramifications for the right to freedom of speech of the author and the public’s right to know. They have also said that injunctions against the publication of material should be granted only after a full-fledged trial, and not before.

The court said that an injunction should not be granted without establishing that the content sought to be restricted is “malicious” or “palpably false.” They further added that granting interim injunctions before the trial commences, in a cavalier manner, results in the stifling of public debate. According to the court, ex-parte injunctions should not be granted except in exceptional cases where the defence advanced by the respondent would undoubtedly fail at trial.

The top court was hearing a plea filed by Bloomberg against the March 14 order of the Delhi High Court, which dismissed its appeal against the trial court order. The court clarified that the above segment of the judgment and order may not be construed as a comment on the merits of the present case and the purpose of the above segment is to provide the broad parameters to be kept in mind while hearing the application for an interim injunction.

Reacting to the apex court order, a Bloomberg News spokesperson said, “We are very encouraged by today’s decision from the Supreme Court of India, and we continue to stand by this story.” The court said an interim injunction, before the trial commences, often acts as a “death sentence” to the material sought to be published well before the allegations have been proven. The impact of the injunction on the constitutionally protected right of free speech further warrants intervention, the court added.

Justice Shalinder Kaur of the high court had said there was no ground to interfere with the ex-parte interim order passed by the Additional District Judge (ADJ) on the lawsuit by Zee Entertainment Enterprises Limited over the article published on February 21, and ordered Bloomberg to comply with the direction in three days. On March 1, the ADJ had directed Bloomberg to take down the allegedly defamatory article within a week, saying Zee had established a “prima facie case for passing ad-interim ex-parte orders of injunction.”

The appellant contended before the high court that the lawsuit was intended to intimidate and silence their right to free and fair speech. It was also claimed that the ADJ did not give the portal an opportunity to place before it several other articles published prior in time and was denied the right to establish their case.

The bench, also comprising Justices J B Pardiwala and Manoj Misra, said while granting liberty to Zee to approach the trial court afresh with its prayer seeking injunction that the error committed by the trial judge had been perpetuated by the high court, and that the order of the trial judge does not discuss the prima facie strength of the plaintiff’s case, nor does it deal with the balance of convenience or the irreparable hardship that is caused. The trial judge needed to have analyzed why such an ex parte injunction was essential, after setting out the factual basis and the contentions of the respondent made before the trial judge.