The recent order dated 22nd March 2024[1] (hereinafter referred to as “Judgement”) passed by the Hon’ble Supreme Court of India in the case titled “Bloomberg Television Production Services India Private Limited & Ors. vs. Zee Entertainment Enterprises Limited”, highlights the intricate considerations necessary when granting ex-parte interim reliefs in defamation suits, particularly concerning media platforms and journalists. The Judgement was rendered against an ex-parte ad interim order passed by the Ld. Trial Court, which was subsequently upheld by the Hon’ble High Court of Delhi[2] (hereinafter referred to as “Impugned Order”). The Impugned Order directed the Appellants before the Apex Court – a media platform, its editor, and journalists – to remove an alleged defamatory article concerning the Respondent. Further, the Impugned Order restrained the Appellants from publishing any content related to the Respondent until the next date of hearing before the Ld. Trial Court.

The Apex Court’s Judgment in overturning the Impugned Order noted that the Ld. Trial Court erred in addressing the established three-fold test required for granting interim reliefs: establishing (i) a prima facie case, (ii) a balance of convenience, and (iii) irreparable loss or harm. This three-fold test constitutes well-established jurisprudence regarding the grant of interim reliefs. The Apex Court, in its ruling, emphasized that the Ld. Trial Court's ex-parte ad-interim injunction, issued without considering the merits of the plaint, amounted to unjustified censorship of the author’s freedom of speech and public’s right to know, which was unacceptable.[3] The Apex Court observed that the said three-fold test cannot be mechanically applied and has to be established with reasons in the interim order.

The Apex Court further stated that while the power to grant interim injunctions is indeed an exercise of discretionary power of the court issuing such relief, the appellate court (in this case, the Hon’ble High Court) should typically refrain from overturning the grant of interim relief. However, it is a settled principle of law that the appellate court should intervene in cases wherein the arbitrary, capricious, or perverse exercise of discretion is evident from an unreasoned order, or when the court has disregarded established legal principles governing the grant of interlocutory injunctions. The Apex Court observed that Hon'ble High Court's intervention would have been justified and necessary because the Impugned Order not only lacked reasoned justification but also infringed upon the constitutionally protected right of free speech of the Appellants.

The Hon’ble Apex Court while overruling the Impugned Order made the following observations which ought to be considered by the courts while granting interim reliefs especially in defamation suits: -

• Establishing the Three-Fold Test: The Hon’ble Apex Court reiterated the well-established three-fold test which needs to be satisfied for granting interim relief: (i) establishing prima facie case, (ii) balance of convenience in favour of the plaintiff, and (iii) irreparable loss / injury being caused to the plaintiff if such relief is not granted. However, while relying on an earlier precedent of the Apex Court in Delhi Development Authority v. Skipper Construction Co. (P) Ltd.,[4] the Hon’ble Court cautioned against mechanical application of this test, emphasizing the need for detailed reasoning and analysis specific to the facts each case. The Apex Court in its Judgement noted that: “A cursory reproduction of the submissions and precedents before the court is not sufficient. The court must explain how the test is satisfied and how the precedents cited apply to the facts of the case.” The Apex Court observed that the Ld. Trial Court erred by mechanically passing the non-speaking Impugned Order without recording any reasons for establishing the Three-Fold test. Such practice of mechanical application of the three-fold test, while granting interim injunctions could potentially have vast ramifications on the litigants.

• Additional Factors for Consideration: Apart from the three-fold test, the Apex Court highlighted the additional factors that should be considered while granting an ex-parte ad interim injunction as laid down in paragraph 36 by the three-judge bench of the Apex Court in the Morgan Stanley Mutual Fund case,[5] emphasizing good faith, limited duration of injunctions, and consideration of public interest in free speech. That for the ease of reference the additional considerations laid down in Morgan Stanley Mutual Fund case are reproduced herein below:-

“36. As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are—

(a) whether irreparable or serious mischief will ensue to the plaintiff;

(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;

(c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;

(d) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;

(e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application.

(f) even if granted, the ex parte injunction would be for a limited period of time.

(g) General principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court.”

The Apex Court clarified that the inadequately reasoned Impugned Order resulted in an unnecessary restriction on the author's right to freedom of speech and the public’s right to information.

• Balancing Free Speech and Reputation, using Bonnard Standard: In defamation suits involving media platforms and journalists, the Apex Court stressed the importance of balancing he constitutionally protected freedom of speech with the right to reputation and privacy. The Apex Court noted in its Judgement that: “The constitutional mandate of protecting journalistic expression cannot be understated, and courts must tread cautiously while granting pre-trial interim injunctions.” The Hon’ble Apex Court played reliance on the ‘Bonnard standard’ as laid down by the Court of Appeal (England and Wales) in Bonnard v. Perryman.[6] As per the Bonnard Standard, the court should exercise exceptional caution and refrain from interfering with free speech through injunctions in defamation cases unless it is unequivocally established that the alleged libel is untrue, emphasizing the importance of unfettered free speech and the need for cautious handling of interim injunctions in pre-trial stages. The Bonnard Standard was reiterated and reaffirmed by the Court of Appeal (England and Wales) in the case of Fraser v. Evans.[7]

• SLAPP Suit: The Apex Court acknowledged the concept of 'SLAPP Suits', which refers to Strategic Litigation Against Public Participation, where powerful entities use litigation to silence media or civil society, hindering public awareness and engagement; leading to infringement of author’s constitutionally protected freedom of speech and public’s right to know. The pre-trial interim injunctions, especially ex-parte injunctions, in defamation cases can effectively suppress information, akin to a 'death sentence' for the material, before allegations are proven. The Apex Court held that the courts should consider the risk of prolonged litigation stifling free speech and public participation when granting such injunctions. The Apex Court acknowledged and emphasized the need to prevent such litigation from stifling free speech and public participation.

The Judgment underscores critical nuances involved in granting interim reliefs in defamation suits, particularly concerning media platforms and journalists. The Judgment highlights key considerations such as the three-fold test for granting interim relief, the importance of detailed reasoning in judicial decisions, and the need to balance free speech with the right to reputation and privacy. The Apex Court also emphasized the need for judicial scrutiny of the interim injunctions by the appellate courts, especially when such injunction has been granted vide a non-speaking order or by mechanical application of the three-fold test without assessing the merits of each case before granting injunctions. Further, the Apex Court cautioned against granting ex-parte injunctions except in exceptional cases where the defence is likely to fail at trial. Additionally, the Apex Court's acknowledgment of 'SLAPP Suits' and the potential stifling of free speech through prolonged litigation underscores the imperative for courts to exercise caution and preserve the public's right to information. The Impugned Order highlighted the potential harm to free speech and public debate caused by unreasoned censorship through injunctions.

Author: Aviral Tripathi

Footnotes

[1] [Special Leave to Appeal (C) No.6696/2024].

[2] Order dated 14.03.2024 in FAO No.79/2024.

[3] “Without even cursorily dwelling on the merits of the plaint, the ad-interim injunction granted by the trial Judge amounts to unreasoned censorship which cannot be countenanced.” Para 11 of the Judgement.

[4] (1996) 4 SCC 622, para 38.

[5] (1994) 4 SCC 225

[6] (1891) 95 All ER 965.

[7] [1969] 1 Q.B. 349.