2022 (7) TMI 1611 - HC - Indian Laws

Copyright, broadcast, defamation suit a commercial dispute u/s 2(1)(c); no interim injunction under Order XXXIX Rules 1-2 CPC

HC held that a suit alleging copyright and broadcast rights infringement coupled with defamation and commercial disparagement constitutes a 'commercial ... Suit relates to a commercial dispute or not - copyright/broadcast right infringement together with defamation and commercial disparagement - Section 2(1)(c) of the Commercial Courts Act, 2015 - HELD THAT:- The right to free speech and expression has been enshrined in our Constitution as a Fundamental Right. The right to free expression has therefore been stoutly protected by the courts. No doubt, the right to free speech is not unbridled nor is it recognized as absolute. It is subject to reasonable restrictions, which includes the right to reputation, as has been recognized in several judgments, particularly, Subramanium Swamy [2016 (5) TMI 1478 - SUPREME COURT]. In Secy., Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal [1995 (2) TMI 406 - SUPREME COURT], the right to freedom of speech and expression has been found to include the right to acquire information and disseminate it and includes the right to disseminate ideas. Quite clearly, the right to broadcast programmes would be included in the right to free speech and expression. As observed by the Supreme Court in Subramanium Swamy [2016 (5) TMI 1478 - SUPREME COURT] reputation is an integral part of the dignity of an individual and if reputation is damaged, society as well as the individual would be the loser. The old Bonnard Principle which set the high thresh-hold for grant of injunction restraining publications on the ground of defamation and harm to the reputation, has been watered-down by the courts, as noticed above. The right to free speech is an important right, but reputation is an equally important right. The courts, over a period of time, have pronounced that reputation is an internal and central facet of right to life, as protected under Article 21 of the Constitution. Thus, a balance would have to be struck between the two rights, one under Article 19(1)(a) and the other under Article 21 of the Constitution. The defendants No. 1 to 9, in the present case, have however asserted another right and that is the unrestricted 'right to comment'. This right to comment on the content created by others is claimed by them as an exercise in public interest. It was the submission of the learned senior counsel for the defendants No.1 to 9 that since the media had unbridled power on account of the impact of its broadcast and reach, and since unlike the print media, there was no regulation of the T.V. channels and also the social-media, an unrestricted right to comment on each other's content would steer the media into communicating and disseminating information correctly, without bias. It is the case of the plaintiff that the programmes of the defendants No. 1 to 9 actually use words that portray the plaintiff in very poor light that they are engaging anchors who could 'create a riot' or 'their business model was below par', since the defendants No. 1 to 9 did not seek advertisement and so on. This is countered by the defendants No.1 to 9 saying that they were justified in their comment. It is trite that while determining whether the broadcast or the telecast contained defamatory or disparaging content, it would be necessary to examine the intent and the absence of malice as also the overall effect of the programme commented upon, not just on the subscribers/loyal viewers of the television or the social-media channels, but its impact on a reasonable person, who is generally interested in viewing such programmes. Or to put it succinctly, it is a question to be determined by the trial judge, whether or not the comments and programmes are 'fair comment' or not and that determination can be only after the conclusion of the trial. It cannot be denied that a 'prima facie case' is disclosed. But disclosure of a prima facie case alone will not entitle a plaintiff to interim injunction. The other two requirements of 'balance of convenience' and 'irreparable loss and injury' will need to be established before such injunction can be granted. Since 'justification' and 'fair dealing' have been pleaded as defence, and such defence is based on facts, the defendants No. 1 to 9 have to be given an opportunity to prove justification during trial. Furthermore, the extent of infringement or fair use for fair comment and criticism would also be a matter of trial as each video would have to be considered to determine whether the excerpts are significant to be outright copying, or constitute fair use without infringement. The application under Order XXXIX Rules 1 and 2 CPC stands dismissed. 1. ISSUES PRESENTED AND CONSIDERED 1.1 Whether the suit, involving claims of copyright/broadcast right infringement together with defamation and commercial disparagement, qualifies as a 'commercial dispute' under Section 2(1)(c) of the Commercial Courts Act, 2015. 1.2 Whether the plaintiff made out a case for interim injunction under Order XXXIX Rules 1 & 2 CPC restraining defendants from using plaintiff's broadcast content, on the ground of copyright/broadcast reproduction right infringement, in view of the 'fair dealing' exceptions under Sections 39 and 52 of the Copyright Act. 1.3 Whether interim injunction could be granted on the plaintiff's claim of defamation and commercial disparagement arising from the impugned videos, articles and posts, having regard to the competing rights to free speech and reputation, and the defences of truth, fair comment, satire and public interest. 1.4 Whether the requirements of 'prima facie case', 'irreparable loss and injury' and 'balance of convenience' (including the stricter standard for interim mandatory injunctions) were satisfied for directing removal/take-down of the impugned existing and future content. 1.5 Whether the plaintiff was entitled to exemption from pre-institution mediation under Section 12A of the Commercial Courts Act and to leave for filing additional documents (including transcripts and screenshots) under Section 151 CPC, Order VII Rules 10 & 14 CPC and Order XI Rule 1 CPC as amended. 2. ISSUE-WISE DETAILED ANALYSIS 2.1 Characterisation of the suit as a 'commercial dispute' Legal framework 2.1.1 The Court analysed Section 2(1)(c) of the Commercial Courts Act, 2015, including clause (xvii) (intellectual property rights relating to copyright) and Explanation (a), in light of precedents including Jagmohan Behl and Ambalal Sarabhai. Interpretation and reasoning 2.1.2 The Court held that Section 2(1)(c) is not an exhaustive enumeration of disputes; the expression 'arising out of' indicates that the source of the dispute must fall within the listed clauses, but the types of relief and ancillary issues are not confined to those clauses. 2.1.3 Explanation (a) was construed, following Jagmohan Behl and Ambalal Sarabhai, as clarifying that a dispute otherwise falling under Section 2(1)(c)(vii) remains commercial even if it also involves certain forms of relief in respect of immovable property actually and exclusively used in trade or commerce. The Explanation was not read as limiting the joinder of other forms of relief (such as defamation) in disputes arising under other clauses. 2.1.4 Examining the plaint, the Court found that the core grievance is alleged violation of the plaintiff's intellectual property/broadcast rights in its content (broadcast on television and social-media), accompanied by allegedly defamatory and disparaging comments. The same acts-uploading and dissemination of videos and posts-were said to constitute both copyright/broadcast infringement and defamation/commercial disparagement. 2.1.5 The Court held that the suit is not a standalone defamation action but one where alleged defamation and commercial disparagement arise out of, and are intertwined with, the alleged infringement of copyright/broadcast rights. Reliefs could not be artificially split between different fora without offending Order II Rules 1 and 2 CPC and risking conflicting decisions. 2.1.6 Relying on the phrase 'arising out of' and prior authority (including Jasper Infotech), the Court held that disputes and reliefs closely connected with and arising from the asserted intellectual property rights would fall within the ambit of 'commercial dispute'. Conclusions 2.1.7 The dispute is a 'commercial dispute' within Section 2(1)(c)(xvii) as it arises out of alleged infringement of copyright/broadcast rights, with defamation and commercial disparagement being consequences of the same underlying acts. 2.1.8 The commercial court has jurisdiction to try the suit and there is no ground to return the plaint on the basis that it is a non-commercial/'composite' suit. 2.2 Copyright/broadcast reproduction right and 'fair dealing' - entitlement to interim injunction Legal framework 2.2.1 The Court referred to Sections 13, 14, 2(dd), 2(m)(iv), 37, 39 and 52 of the Copyright Act, 1957. 2.2.2 Section 37 confers a special 'broadcast reproduction right' on broadcasting organisations; Section 39 sets out acts not infringing such rights (including 'fair dealing' use of excerpts for reporting current events or bona fide review). Section 52(1)(a) exempts fair dealing for private use, criticism/review, and reporting of current events and current affairs. Interpretation and reasoning 2.2.3 The Court held that the plaintiff's claim is more appropriately characterised as enforcement of broadcast reproduction rights (Chapter VIII), rather than relying primarily on the 'cinematographic film' category, though both fall within the statutory copyright framework. 2.2.4 It was undisputed that the plaintiff's news and feature programmes are broadcasts and that the defendants' programmes on social-media are also 'communication to the public', making both broadcasters with corresponding rights and obligations. 2.2.5 The Court accepted that the first broadcaster of a programme has exclusive reproduction rights, and that reproduction or re-broadcast of that content normally requires a licence, subject only to the statutory exceptions under Sections 39 and 52. 2.2.6 The defendants invoked 'fair dealing' under Section 39(b) and Section 52(1)(a)(ii)-(iii), asserting that only excerpts of the plaintiff's broadcasts were used, for bona fide review, criticism and reporting of current events, with substantial commentary, transformative input and public interest motives. 2.2.7 The Court examined the jurisprudence on 'fair dealing' and 'fair comment', including Hubbard, Slim, Super Cassettes (Hamar Television) and Super Cassettes (Chintamani Rao), and distilled that: * 'Fair dealing' cannot be rigidly defined; it turns on degree and overall impression; * Relevant factors include: extent and length of extracts; ratio of copied material to original commentary; purpose of use (criticism/review vs. rival exploitation); presence of intellectual/creative input; absence of malice; public interest; and whether the copying is blatant; * Commercial use does not by itself negate fair dealing; transformative use may support it. 2.2.8 The Court held that, as a matter of principle, comment and criticism regarding the content and style of a news broadcaster's reporting of current events falls within the statutory categories of 'criticism or review' and 'reporting of current events/current affairs' under Sections 39 and 52. However, whether the defendants' actual use qualifies as fair dealing is a pure question of fact. 2.2.9 The Court noted that the defendants claim their programmes overlay the plaintiff's clips with independent commentary (e.g., 'TV Newsance', 'NL Tippani'), amounting to transformative use and critique of bias, but the plaintiff alleges extensive unlicensed reproduction where defendants' own content is minimal. Reconciling these rival assertions requires examination of each impugned video, its duration, context, and proportion of plaintiff's content. Conclusions 2.2.10 The plaintiff has a statutory broadcast reproduction right and has shown unlicensed use of its content, disclosing a prima facie case of infringement. 2.2.11 However, the defendants have raised a serious and plausible factual defence of fair dealing/fair comment under Sections 39 and 52, which cannot be adjudicated without evidence and detailed scrutiny of each impugned programme. 2.2.12 In view of this contested factual matrix and the breadth of the fair dealing defence, no interim injunction restraining the defendants' use of the plaintiff's broadcast content can be granted at this stage. 2.3 Defamation and commercial disparagement - interim relief and competing rights Legal framework 2.3.1 The Court considered the constitutional right to freedom of speech and expression under Article 19(1)(a) and reasonable restrictions under Article 19(2), alongside the right to reputation as a facet of Article 21, with reference to precedents including Subramanian Swamy, Sakal Papers, Secretary, Ministry of I&B v. Cricket Association of Bengal, Khushwant Singh, R. Rajagopal, and others. 2.3.2 For disparagement in a commercial context, the Court relied on principles from Tata Press, PepsiCo, Dabur, Reckitt Benckiser and Fiitjee, as to when criticism of a competitor's product or services crosses into actionable disparagement. Interpretation and reasoning - defamation/commercial disparagement 2.3.3 The Court accepted that reputation is an integral component of Article 21 and that 'commercial disparagement' occurs when a market player derides or discredits a rival's goods, services or business through untrue or misleading statements intended to influence public perception. 2.3.4 It was undisputed that the parties operate in overlapping spaces (electronic and social-media news), and are competitors to that extent. 2.3.5 Drawing from comparative advertising cases, the Court held that while self-promotion and even some 'knocking' of competitors is permitted, an advertiser or commentator cannot denigrate or falsely portray a rival's products or services as poor. The same logical boundaries apply when copyright/fair dealing is invoked: criticism must not cross into defamation or commercial disparagement. 2.3.6 The defendants claimed defences of 'truth', 'fair comment', public interest and satire, asserting that their programmes expose bias and deficiencies in mainstream coverage and act in the nature of a media watchdog. 2.3.7 The Court rejected the defendants' claim to an informal 'regulatory' role over other media, holding that content-related grievances are already addressable through existing statutory and platform-based mechanisms, and that no media entity can self-appoint as a regulator of others. 2.3.8 Nonetheless, the Court recognised that the right to comment on and critique others' media content-including harsh and strong criticism-is itself a facet of Article 19(1)(a). A plurality of perspectives and styles in news reporting and commentary is in public interest, subject to the limitations of Article 19(2) (including protection of reputation and privacy and prohibitions on false or malicious content). 2.3.9 Factual assessment of impugned content at interim stage 2.3.10 The Court examined representative extracts pleaded by the plaintiff. It noted that expressions such as 'shit standards', 'shit playing', 'shit reporters', 'shit show', and suggestions that a particular anchor was hired for her 'potential to start a riot', are on their face derogatory and tend to portray the plaintiff's programmes and personnel in a very poor light. Descriptions of the plaintiff's advertisement-supported revenue model as inherently inferior, contrasted with the defendants' subscription model as the only guarantee of unbiased reporting, were viewed as suggestive of commercial disparagement. 2.3.11 At the same time, other comments appeared closer to criticism or opinion on editorial choices and perceived bias in coverage. Determining whether each statement is defamatory or disparaging, or protected as fair comment/honest opinion, requires a contextual assessment of the entire video/post, its tone, intent, and impact on a reasonable viewer, which can only be made at trial. 2.3.12 Defences of truth, fair comment and satire 2.3.13 The Court noted that while 'truth'/justification is an absolute defence to defamation/disparagement, here the plea of truth was generic and not clearly tied to specific factual assertions about events, coverage, or the plaintiff's alleged bias; the impugned content prima facie appears more in the nature of opinion than verifiable factual assertion. Whether it nevertheless falls within the scope of honest opinion/fair comment is a matter for trial. 2.3.14 The Court accepted that satire is a protected mode of expression under Article 19(1)(a). However, satire must be self-evident as such and, by its nature, is not ordinarily compatible with copyright infringement or malicious defamation. The defendants, having characterised their programmes as satire, must at trial explain which portions are satirical, which are comment, and how they are devoid of malice. Whether the impugned content is satire or malicious disparagement is a factual question not determinable at the interim stage. Conclusions on defamation/disparagement and interim relief 2.3.15 The plaintiff has disclosed a prima facie case that some expressions and characterisations used in the defendants' content are ex facie derogatory and potentially disparaging of its channels, anchors and business model. 2.3.16 However, robust defences of justification, fair comment, public interest and satire have been raised; the classification of each impugned statement depends on full contextual evaluation of each video/article/post, which is not possible without trial. 2.3.17 In such circumstances, the Court declined to grant an interlocutory injunction restraining continuation or dissemination of the impugned content on the basis of defamation or commercial disparagement. 2.4 Application of principles for interim and mandatory injunction Legal framework 2.4.1 The Court applied the settled triad of interim relief: existence of a prima facie case, irreparable loss and injury, and balance of convenience, as restated in Wander Ltd. v. Antox India (P) Ltd. 2.4.2 For interim mandatory injunctions (e.g., take-down/removal of existing content), the Court followed the stricter standards in Dorab Cawasji Warden, requiring a strong case at a higher threshold than mere prima facie case, necessity to prevent serious and irreparable injury, and a favourable balance of convenience. 2.4.3 The Court also relied on Khushwant Singh and R. Rajagopal in holding that injunctions in futuro, restraining publication of unidentified future content, are generally impermissible. Interpretation and reasoning 2.4.4 On prima facie case: The Court held that the plaintiff had shown unlicensed reproduction of its broadcasts and the use of certain derogatory expressions, thereby establishing a prima facie case of both potential copyright/broadcast infringement and possible defamation/disparagement. 2.4.5 On irreparable injury: The plaintiff had quantified its damages claim (Rs. 2,00,00,100/-), indicating that monetary compensation would be an available remedy if it ultimately succeeded. The impugned content had been online since at least 2018, and no pressing urgency or imminent fresh harm of an exceptional nature was demonstrated. 2.4.6 On balance of convenience: * If the defendants ultimately succeed in proving fair dealing, justification, fair comment or satire, an interim injunction (especially a mandatory take-down) would unjustifiably curtail their Article 19(1)(a) rights and cause substantial prejudice. * Conversely, if the plaintiff succeeds at trial, its injury can be recompensed by damages and appropriate final reliefs, including possible directions concerning continued availability of content. 2.4.7 Given the existence of serious triable defences and the need to examine each video/post individually, the Court found that the balance of convenience currently lies in favour of allowing the defendants' content to remain accessible pending trial. 2.4.8 As to mandatory injunction (take-down of existing content), the Court held that the plaintiff had not established exceptional circumstances satisfying Dorab Cawasji Warden. The continuing availability of a limited number of videos/posts that have been online for several years did not, on the facts, constitute irreparable or non-compensable injury of such gravity as to justify mandatory relief at this stage. 2.4.9 The Court also noted that, in view of Abhishek Verma, intermediaries (such as platforms) are only secondarily involved; the primary onus to respond or remove is on the content-originating defendants, to be addressed depending on final adjudication. Conclusions 2.4.10 While a prima facie case in favour of the plaintiff exists, the requirements of irreparable injury and favourable balance of convenience are not satisfied; the higher threshold for interim mandatory injunction is also not met. 2.4.11 The application for interim injunction under Order XXXIX Rules 1 & 2 CPC is dismissed; no direction is issued either for take-down of existing content or for restraining future publication. 2.5 Procedural applications - additional documents and pre-institution mediation Interpretation and reasoning 2.5.1 The Court allowed the plaintiff's applications seeking leave to file additional documents (including transcripts of impugned videos and screenshots of allegedly infringing/defamatory posts) on the ground that: * the suit had been filed urgently for injunction; * the videos were already before the Court; * the transcripts/screenshots would aid appreciation of content; and * their correctness could be challenged by the defendants at trial, as comparison at this stage was not feasible. 2.5.2 The Court granted exemption from pre-institution mediation under Section 12A of the Commercial Courts Act, considering that: * the suit was filed as a commercial suit; and * urgent reliefs of injunction against alleged copyright infringement were sought. Conclusions 2.5.3 Applications for filing additional documents were allowed, with the materials taken on record subject to defendants' liberty to dispute their correctness during trial. 2.5.4 Exemption from pre-institution mediation was granted in view of the urgent nature of the injunctive relief sought. 2.5.5 The interim injunction application under Order XXXIX Rules 1 & 2 CPC was dismissed, with an express clarification that no finding in the order shall be treated as a final opinion on the merits, which remain to be determined after trial.