After sending a takedown request for a photograph last Thursday, as reported byLegally India at the time, Karanjawala & Co, the law firm representing former Supreme Court judge Swatanter Kumar in a defamation case against three media companies, declined to specify which parts of Legally India’s coverage relating to the case should be removed.
The firm relied on a Delhi high court injunction of 16 January relating to allegedly defamatory articles and broadcasts published by three media companies about allegations against its client.
Karanjawala had last Thursday (23 January) requested Legally India to remove a pixellated and anonymised photo of Kumar that Legally India had published with its original report of the order.
In its latest email to Legally India on Friday (24 January), the law firm stressed that “the order is unambiguous and does not need any further interpretation or explanation. We call upon you to comply with the order in its true intent and spirit, forthwith and remove all photographs and offending material with regard to our client from your website/tweeter page etc.”.
Legally India responded to Karanjawala earlier this morning (27 January), asserting, amongst other points, that the parts of the order prohibiting publication of Kumar’s photograph, should apply only to the three defendant media companies named in the order.
The correspondence has been reproduced below, following Legally India’s request on 23 and 24 January for Karanjawala to highlight objectionable passages in a PDF of the article in question. Legally India also asked whether, according to Karanjawala, the entire order was binding on third parties.
Karanjawala reply to Legally India, of Friday 24 January 2014 at 19:41
1. In response to your offer contained in email dated 23.01.2014 sent at 1858 hours and email dated 24.01.2014 sent at 0156 hours calling upon our client to provide edits and mark up the articles in question, we state that given the nature of your website and the competence of your editorial board to comprehend fully the true scope, meaning and import of orders passed by the Hon’ble Courts, you would not carry any material which is contrary to the letter and spirit of the order. In this view, we do not find it appropriate to accept your offer to conduct any exercise to mark up the offending articles.
2. However, for your ready reference, the relevant paragraphs of the order dated 16.01.2014 are reproduced herein and you are called upon to ensure fair reporting in conformity with the orders of the court.
64. Accordingly, the defendants, their agents, assigns or any of them acting on their behalf and/or any other person, entity, in print or electronic media or internet are:
a) Restrained from further publishing the write ups as mentioned in page Nos.6, 7, 10 of the documents file or publishing any article or write up and telecast which highlights the allegations against the plaintiff in the form of headlines connecting or associating plaintiff with those allegations, particularly, without disclosing in the headlines of article that they are mere allegations against the plaintiff or any other similar nature of articles, write up and telecast.
b) The directions made in para (a) restrains the defendants from publication either in print media or in electronic form or in any manner publishing the said news in televised form. The defendants shall delete the offending content as mentioned in para (a) from internet or other electronic media and shall take necessary steps within 24 hours from today.
c) The defendants are further restrained from publishing the photographs of the plaintiff either in print media or electronic media or Internet or on TV channels which may suggest connection of the plaintiff with the said allegations made by defendant No.5 and remove his photographs from internet or all other electronic media as well as upload defamatory articles.” [Emphasis supplied]
3. In respect to your question of the applicability of the order on persons other than those impleaded as Defendant, the order of the Hon’ble High Court is unambiguous inasmuch as the Hon’ble Court has categorically stated that the interim order, as mentioned in paragraph 64(a), (b) and (c) is also passed against any other person, entity, in print or electronic media or internet.
The fact that the interim order is applicable to any other person or entity, in print or electronic media or internet, including entities such as yourself, has also been reported by you in the article “Delhi HC permits ‘fair’ reporting on Swatanter Kumar sex harass allegations (but no more pictures for Arnab) after 11 seniors’ full-court press”. Paragraph 63 of the order dated 16.01.2014 is reproduced herein below:
“63. In view of the aforementioned discussion, I find that the plaintiff has been able to make out a strong prima facie case on the basis of the disclosure of the material available on record especially copies of newspapers at page Nos.6, 8, 10 of the documents and the CDs which clearly show that the defendants have published the write ups and telecasted by highlighting the allegations on the front page in order to create sensation amongst public and made it apparent by creating the impression that the plaintiff in all probability is involved in such incident. The balance of the convenience is also in favour of the plaintiff as the degree of the prejudice is far more excessive than that of the defendants. The irreparable loss shall ensue to the plaintiff at this stage and not to the defendants if such publications and telecast of TV news of such nature on similar lines are not postponed. The interim order is also passed against any other person, entity, in print or electronic media or internet in view of the settled law in the case of ESPN Software India Private Limited vs. M/s Tudu Enterprises and Others in CS(OS) No.384/2011 dated 18th February, 2011 and Indian Performing Right Society Ltd. Vs. Badal Dhar Chowdhry and Ors., 2010 (43) PTC 332 (Del.). [Emphasis supplied]
4. It has also now come to the attention of our Client that the order and its applicability to any other person, entity, in print or electronic media or internet was within your express knowledge since the day of the judgement itself. This is evident from the tweets posted on your tweeter page. It has come to our attention that a statement – “Basically the injunction says 3 media houses (but no others) will have to add ‘allegedly’ in every Swatanter # InternJudge headline”was posted on your page and was available for viewing on 16.01.2014 at 22:35. At 22:52 on the same day, paragraph 64 of the order dated 16.01.2014 was specifically brought to your attention. Upon the same having been brought to your attention, another tweet was available for viewing that stated –“right you are, missed that…. Will tweet correction….”. The time line reflects that after the said tweet , the paragraph in question was re tweeted on your page, followed by a correction tweet at 23:03 stating :- “According to the order, “everyone” will have to add “allegedly” to headlines in the Swatanter Kumar # InternJudge stories”.
5. In light of the fact that the operative part of the judgment had been brought to your attention on 16.01.2014 (especially with regard to the use of the name of our Client in the headlines, photographs of our Client etc), you are called upon to ensure that the judgement of the Hon’ble High Court is complied with in its true essence and spirit. It is a fact that the Hon’ble High Court has permitted entities such as yourself to do fair reporting while observing:-
The observations made in this order are prima facie in nature and will not preclude the defendants to report the Court cases and happenings as facts which are covered ambit of fair reporting on the basis of true, correct and verified information.
6. We are certain that that being a website primarily reporting affairs of the legal fraternity, you will certainly be aware of the consequences that a breach of the said injunction may invite. We are certain that you shall ensure that no breach of the judgement is committed.
7. We also bring to your notice that in the article posted by you on 23.01.2014 at 20.08 hours infact you informed the reader the “heavily pixellated stock photo “ published in the report dated 16.01.2014, on the orders passed by the Hon’ble Court, was indeed of our client. This in itself is contrary to the letter and spirit of the said order.
8. The order is unambiguous and does not need any further interpretation or explanation. We call upon you to comply with the order in its true intent and spirit, forthwith and remove all photographs and offending material with regard to our client from your website/tweeter page etc.
KARANJAWALA AND COMPANY
Legally India’s reply to Karanjawala of Monday, 27 January 2014 at 02:44
In response to your email sent on Friday 24 January 2014 at 19:41, please find our response to your points below.
1. To avoid vagueness, we would again ask you to specify which parts of our article (“Delhi HC permits ‘fair’ reporting on Swatanter Kumar sex harass allegations (but no more pictures for Arnab) after 11 seniors’ full-court press” of 17 January 2014 (the “Article”)) you would claim are in violation of the Delhi High Court order of 16 January 2014 (the “Order”). We believe that this is not an unreasonable request if the Order does indeed apply to parts of the Article, as you seem to claim it does.
2. We would strongly disagree with your interpretation that paragraphs 64(b) and 64(c) of the Order are binding on anyone other than the defendants named in the Order.
However, we would agree with your interpretation of paragraph 64(a) of the Order, which stated:
“the defendants, their agents, assigns or any of them acting on their behalf and/or any other person, entity, in print or electronic media or internet are: a) Restrained from from further publishing the write ups as mentioned in page Nos.6, 7, 10 of the documents file or publishing any article or write up and telecast which highlights the allegations against the plaintiff in the form of headlines connecting or associating plaintiff with those allegations, particularly, without disclosing in the headlines of article that they are mere allegations against the plaintiff or any other similar nature of articles, write up and telecast.” [emphasis ours]
We would assert that all articles published on Legally India in relation to your client, both before and after the date of the Order, have fully complied with this injunction of paragraph 64(a). For your reference, please read the articles collated athttp://www.legallyindia.com/tag/swatanter-kumar carrying the following headlines and/or lead paragraphs referencing the sexual harassment allegations:
“Delhi HC permits ‘fair’ reporting on Swatanter Kumar sex harass allegations […]”
“Swatanter Kumar ex-intern PIL admitted: Former SC judge Swatanter Kumar’s ex-intern from NUJS Kolkata who had made sexual harassment allegations against him yesterday”
“Former SC judge and National Green Tribunal head Swatanter Kumar – who was accused of sexual harassment by an ex-intern from NUJS Kolkata according to Friday’s media reports – sent a legal notice to three media houses demanding an apology from them within”
“Ex-NUJS intern claims harassment by Swatanter Kumar while he was SC judge: Another graduate of NUJS Kolkata has alleged that she was sexually harassed by a then-sitting Supreme Court judge in 2011”
We would contend that every article published on Legally India has complied with the letter and spirit of the Order by using widely accepted journalistic conventions used in contentious stories of allegations, such as “allege”, “accuse” and “claim”.
While we agree that paragraph 64(a) of the Order expressly places a duty on everyone, including the defendants, paragraphs 64(b) and (c) very clearly only apply to the defendants.
You will note that every operative element of paragraphs 64(b) and (c) expressly mentions “the defendants”. In particular:
“b) The directions made in para (a) restrains the defendants from publication either in print media or in electronic form or in any manner publishing the said news in televised form. The defendants shall delete the offending content as mentioned in para (a) from internet or other electronic media and shall take necessary steps within 24 hours from today.
c) The defendants are further restrained from publishing the photographs of the plaintiff either in print media or electronic media or Internet or on TV channels which may suggest connection of the plaintiff with the said allegations made by defendant No.5 and remove his photographs from internet or all other electronic media as well as upload defamatory articles.” [emphasis ours]
The drafting of paragraphs 64(b) and (c) leaves no doubt that the intention of Justice Manmohan Singh in the Order was to restrain the defendants alone, as otherwise he must have expressly mentioned third parties again in those two paragraphs.
Any other reading would be unnatural and go against the general legal principle that so-called “John Doe” injunctions need to expressly specify that they are binding on third parties.
It is also important to note that the Article merely reported on the Order and the ongoing defamation court proceedings that were instituted by your client, and not on the substance of the allegations against him.
You will no doubt be aware that a Supreme Court constitutional bench headed by Justice SH Kapadia in September 2012, in the case of Sahara India Real Estate Corp. Ltd. & Ors. Vs. Securities & Exchange Board of India & anr, expressly declined to uphold blanket restrictions on media coverage of ongoing court cases, stating that such restrictions would need to be imposed on a case by case basis where reporting would cause a “real and substantial risk of prejudice to the proper administration of justice” ( http://www.sci.nic.in/outtoday/media%20coverage%20judgment.pdf )
In our opinion, under no possible interpretation, would the content of the Article or the publication of your client’s photograph alongside the Article create any such risk.
Any other interpretation of the Order would amount to, in effect, introducing so-called English law “super injunctions” into Indian jurisprudence by the back door.
3. It appears as though you are misreading the Article published on Legally India as support for your claim that the entirety of the “interim order is applicable to any other person or entity, in print or electronic media or internet, including entities such as yourself”.
Quoting the Article’s headline and the first two paragraphs:
“Delhi HC permits ‘fair’ reporting on Swatanter Kumar sex harass allegations (but no more pictures for Arnab) after 11 seniors’ full-court press
The Delhi high court yesterday restrained anyone from publishing or broadcasting the detailed sexual harassment allegationsagainst Swatanter Kumar, without stating prominently that they are “mere allegations”, as a battery of counsel appeared for the former Supreme Court judge in the court yesterday.
Justice Manmohan Singh also ordered the defendants – The Indian Express, Times Now and CNN-IBN – to remove certain articles and items from its archives, and restrained them from publishing Kumar’s photograph in connection to the story. CNN-IBN’s online sister publication FirstPost, has already removed images of Kumar from its website.” [emphasis ours]
The above summary of the Order is in line with our understanding that is set out in more detail in paragraph 2. above.
4. The Twitter posts you cite indeed reflect an initial, unintentional misreading of paragraph 64(a) of the order as only applying to the defendants. After that error was realised, we promptly deleted the erroneous Tweet and sent out a correction on Twitter within less than half an hour, according to the time line in your email.
The corrected Tweet in question, as you rightly point out, stated: “According to the order, ‘everyone’ will have to add ‘allegedly’ to headlines in the Swatanter Kumar # InternJudge stories”, reflecting the effect of the injunction in paragraph 64(a) of the order (our more detailed understanding is set out in paragraph 2. of this email, above). However, no Tweet made any reference to paragraphs 64(b) and (c) binding “everyone”.
The Article, which was published the following day, once we’ve had a chance to read the Order more carefully, summarised the Order along the same lines. The Article also clearly stated that paragraphs 64(b) and (c) only applied to the defendants (see the excerpts in paragraph 3. above).
Your claim that we had “express knowledge” that paragraphs (b) and (c) were binding on third parties, let alone that we believed in such an unreasonable interpretation, is false and is against all evidence.
5. We agree that we were aware of the limited restrictions contained in the Order and we always did and will continue to ensure that all our reporting in relation to the Order and your client remains fair.
6. We are aware of the restrictions the Order imposes on reporting, as outlined above, and will continue to ensure that we will not breach the Order, according to our understanding of it as outlined above and to the best of our ability.
7. You are correct that we have never denied that the pixellated photo published with the Article (the “Photo”) was originally a photograph of your client, before it was heavily pixellated and his identity was obscured.
If, for argument’s sake and contrary to our understanding of the Order as outlined in this email above, the injunction of 64(b) and (c) were binding on persons other than the defendants, the Photo was [digitally] manipulated and reasonably obscured to eliminate obvious identifying marks of your client.
We contend that it would have been impossible for anyone to identify your client from the Photo, except arguably if that person was already closely familiar with the original unaltered photograph of your client. To such persons, who already know what your client looks like, an injunction on publishing a photo, obscured or otherwise, is meaningless without an injunction also preventing the naming of your client.
Furthermore, the identity of your client in relation to the allegation was never in question, and the Order did not choose to restrict reporting of your client’s name. If someone were to want to see a photo of what your client looked like, they would be able to find it within seconds on any search engine.
You might, for example, like to look into an image search of the Google search engine for “Swatanter Kumar sex harassment allegation”, which returns more than 80,000 results and what must be dozens of images of your client, hosted on various websites:
Ironically, Legally India has not used your client’s photo at all in any articles that covered the harassment allegations, except for the pixellated Photo published with the Article covering the Order.
In light of the above, please confirm whether you have also sent notices to any other media organisations or internet intermediaries to remove those photographs of your client, none of which appear to have been obscured.
8. In your email of Friday, you requested removal of “all photographs” and “offending material” from our website and Twitter feed, without specifying what material would be “offending”.
You also expressed faith in the “competence of [Legally India’s] editorial board” to “comprehend fully the true scope, meaning and import” and to act in accordance with the “letter and spirit” of the Order. You therefore declined to mark up the Article and left it for us to decide to remove what we found to be in violation of the Order.
The facts and interpretations outlined in this email represent the honest understanding of the Order by Legally India‘s editor and our advisers, and we therefore feel that no material or photographs published on Legally India were or are in violation of the Order’s letter and spirit.
We will therefore neither remove any content nor consider ourselves bound by paragraphs 64(b) and (c) of the Order.
If you disagree with this assessment, we would request a response from you within 24 hours, failing which we will assume that you agree with our interpretation of the Order.