A couple of months back, there was an appalling controversy over television presenter Mayanti Langar, wife of cricketer Suart Binny, being trolled on twitter and other social media platforms for the cricketing performance of her husband. The extent to which people would go to abuse someone who is not even the direct subject of their ire is something that strikes at the root of what society has turned into today, led by a group of people who get immense satisfaction in making fun of celebrities.
Following this event, The Times of India ran a cover story on its supplement dealing with the issue of women cricket anchors being subjected to ridicule and abuse for how they look and how they present themselves. A famous anchor talked about how the news the next day would be on the dress she wore rather than the work she did. Another presenter mentioned that she used to wonder why people just commented on the way she looked and not on the interviews she took (either good or bad).There were also misgivings that a single mistake on their part would be hyped up while a mistake made by the men would be let off as just a slip of the tongue.
Public policy issue
While there is a tendency to look at this problem from purely a moral angle- on what is right and wrong, we can put on different caps to analyze this issue.
If we look at it from a policy perspective, we enter into the hotly debated topic of defining what is free speech and how If should or should not be constrained for public benefit.
Liberals freely quote Article 19(1) of the Indian Constitution that gives the citizens the right to freedom of speech and expression but conveniently forget the ‘vague’ 2nd clause of the same Article that places reasonable restrictions on various grounds, including those of morality and decency. Since the definition of ‘reasonable’ is debatable, there have been several defamation and, in what seems to be the popular trend these days, sedition cases foisted on people who might have different ideologies.
The Tamil Nadu government alone has used it to their full advantage, slapping 200+ defamation cases against journalists and political opponents. The Supreme Court, rapped the TN government for restricting forms of dissent and said “If somebody criticizes the policy of the government, if the person criticized is a public figure, he has to face it instead of using the state machinery to choke criticism”.
But what about the others, who don’t have the public machinery to back them up?
Defamation as a criminal offense
In India, defamation can be either a civil or a criminal offence, with the complainant given the option to choose either or both.
Section 499 of the IPC defines defamation, saying that it can either be based on something published or spoken either with intent to damage reputation or with knowledge of reputational harm that might arise out of the aforementioned statements. Section 500 talks about the punishment, with imprisonment up to 2 years, with or without fine.
Recently, in May 2016, the Supreme Court, after hearing pleas from public figures like Subramanian Swamy, Rahul Gandhi and Arvind Kejriwal (there is something indeed that these leaders across political parties and ideologies agree on!) refused to quash the criminal defamation law saying “Right to free speech is not absolute. It does not mean freedom to hurt another’s reputation which is protected under Article 21 of the Constitution”.
Does this mean that every scratching comment on actors and presenters could, potentially, lead to a defamation suit?
Exceptions to the rule
There are certain exceptions to Section 499, which allows the harm to reputation, in some instances.
The sixth exception says “Merits of public performance.—It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.”
Which leads us the very pertinent question- what exactly was the role of the journalists/reporters and what constitutes their “performance”?
Would the media company employing the presenters, be able to prove that the only reason the presenters were selected was based on their cricket knowledge and that their role was just to pass on their knowledge to the public? Is there any way to prove or disprove that the way they look and dress are part of their ‘performance’? Or, would it really make a difference if the presenters were selected based on the same metrics that were commented on, in what can be loosely categorized as bad taste, by members of the general public? This is an issue that several actors and other celebrities might face day-in and day-out, especially with the increased use of memes and trolls on social media platforms to poke fun, sometimes without valid reasons.
Section 66A of the IT Act
Section 66A of the IT Act provides power to arrest a person for allegedly posting offensive content on websites. The Act came in the news after 2 youngsters in Maharashtra were arrested after ‘posting’ and ‘liking’ comments on facebook that a political party took offense to.
In March 2015, the Supreme Court ruled that the Act was ‘draconian’ and called it unconstitutional as it compromises free speech. The Bench said, “It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right,”.
In this judgement, the Bench also stressed that the liberty of thought and expression was ordained by the Constitution and unless a clear degree of increment was present, ‘allegedly objectionable’ posts or discussions should not be curbed by anyone, clearly upholding the right to free speech.
Looking at the constitutional provisions and the judgements discussed above, it does look like people can mostly get away with statements that in normal parlance would be considered offensive and definitely unparliamentary (incidentally, you cannot be prosecuted for statements made in parliament!), even though defamation is still a criminal offense.
Women victims have an extra provision for protection through Section 509, which deals with ‘Word, gesture or act intended to insult the modesty of a woman’.
A big problem with the way our laws are defined is that certain terms like reasonable/performance/decency/grossly offensive etc. are vague and open to interpretation. In today’s context, where everyone seems to have an opinion and shares it with the world on social media, it is very difficult to differentiate between what constitutes free speech and what is clearly defamation. It would really be interesting to see what would be the outcome if these television presenters did indeed file a defamation case!
Ramdas is a member of LSD. He is still confused with the thin lines separating business, media and the law. Any comments on the topic will be much appreciated.