EXCLUSIVE: THE LAWHIVE UPDATES by Saveena Sachar Bedi – OTT & Online news; POSH Act, Defamation; TV News channel controversies

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In this issue of THE LAWHIVE UPDATES from LegalBrief, Advocate Saveena Bedi Sachar walks you through some important recent issues and developments like OTT and Online News portals being brought under MIB regulation, the TV News channels controversies and events. Saveena also takes a look at two important areas every professional must be mindful of – Defamation, and the POSH Act.

Each consolidated update of important news pertaining to legal matters across the Media & Entertainment, IP, Cyber Space and other related spaces, along with important notifications and more is curated and put together for the readers of MediaBrief.com by Saveena Bedi Sachar, who is Founder and Managing Partner of reputed legal firm Lawhive Associates.

She also practices before the Supreme Court of India, Bombay High Court and several other courts, Forums and Tribunals. She has  worked for several years heading the legal function in leading Indian and Multinational companies viz. Walt Disney, UTV, Star TV, INX Media (9X, 9XM and NewsX), AC Nielsen, Ogilvy and Mather (O&M) and Music Broadcast Private Limited (Radio City 91.1FM ).

Her law firm, Lawhive Associates, which she founded in 2012, is has today transitioned from a traditional-Media-and-Entertainment practice to a leading full-service law firm that handles civil and criminal matters including corporate advisory, international arbitrations, dispute resolution, bankruptcy and liquidation matters, family law, real estate, information technology and private client advisory.

To help you sync up with the most important developments in the legal space, here are THE LAWHIVE UPDATES put together for the readers of MediaBrief by thought-leading Advocate Saveena Sachar Bedi.

Cabinet secretariat notification brings ott, digital news content under the Ministry Of Information & Broadcasting

A gazette notification [S.O. 4040(E)] dated November 9, 2020 has brought online news platforms and content providers under the ambit of the Ministry of Information and Broadcasting (MIB).

According to this notification, the Govt. of India (Allocation of Business) Rules, 1961 has been amended to include Films and Audio-Visual programmes made available by online content providers and News & current affairs content on online platforms as well. These rules may be called the Govt. of India (Allocation of Business) Three Hundred and Fifty Seventh Amendment Rules, 2020.

This will give the government control over Over The Top (OTT) platforms or video streaming service providers such as Netflix, Amazon Prime and others, which were unregulated till now.

The government regulations may also apply to news on Social Media platforms such as Facebook, Twitter and Instagram.

This step is taken to bring an enabling regulatory environment so that all digital players adhere to the laws of the land.

Although it’s a significant step but the challenge now will be to distinguish between streaming platforms that curate content and platforms that host user-generated content as they deemed ‘intermediaries’ under the IT Act and do not have active control over the content available on such platforms.

The IT Act also recognizes this distinction between different platforms. It will be intriguing to see whether the same distinction will be made under the I&B Ministry Rule’s or not.

The notification amended the Government of India (Allocation of Business) Rules, 1961 by inserting two new entries – 22A and 22B – to the Second Schedule of the Rules. The two new entries are as follows:

  1. Films and Audio Visual programmes made available by online content providers
  2. News and Current Affairs on online platforms.

A bird’s eye view of Defamation Law and Suits in India

A publication, without justification or lawful justification, which is intended to injure the reputation of person by exposing him or her to hatred, contempt or mockery, will be Defamation. Defamation may be committed in two ways viz.,

  1. By Speech known as SLANDER or
  2. By writing and its equivalent modes known as LIBEL.

However, some types of false statements are considered so damaging that they are deemed defamatory on their face and called as “Defamation per se”. This is in contrast to “Defamation per quod” where the false statement is not inherently defamatory and has to be evaluated in the context of additional facts.

Recently, Actress Richa Chadha had filed a defamation suit against one  Payal Ghosh who also claims to be an actress, for defaming Richa Chadha while making allegations of sexual misconduct against filmmaker Anurag Kashyap. Bombay High Court noted that the statements of Payal Ghosh in relation to Richa Chadha were defamation per se,i.e., derogatory on the face of it and ad interim reliefs were granted by the Hon’ble Bombay High Court resulting in an unconditional apology from Payal Ghosh to Richa Chadda and also a John Doe/ Ashok Kumar order which meant that even unknown publications would need to  take down such defamatory material  modes and platforms of publication.

Traditionally, there are four general classifications of untrue statements likely to be harmful to one’s reputation and therefore actionable as injury claims, which are

  1. Indications that a person was involved in criminal activity
  2. Indications that a person had a “loathsome,” contagious or infectious disease
  3. Indications that a person was unchaste or engaged in sexual misconduct
  4. Indications that a person was involved in behavior incompatible with the proper conduct of his business, trade or profession

If a Plaintiff or person defamed does not fall under any aforementioned classifications, then he/she is needed to prove their damages. Plaintiff must show as to how he/she was the real target of said attack. A true innuendo is an innuendo by which plaintiff alleges a special defamatory meaning of words distinct from their ordinary meaning and arising by virtue of extrinsic facts or matters known to the recipients.

Damages with regard to Defamation

Depending on the circumstances of the case, the subsequent damages could also be awarded in these claims: –

  • General damages: The compensation for the past and future damage sustained to name within the community, towards mental or emotional anguish and private humiliation.
  • Special damages: The compensation for specific economic loss caused by the defamation. This may embrace things like loss of profits and loss of employment.
  • Nominal damages: A nominal sum that may be awarded once defamation has occurred however, no serious damage to name was done.
  • Punitive or exemplary damages: Extra sums meant to penalize or set an example once the defendant’s actions were deemed to be willful or malicious.

Stage of Interim Relief in Defamation 

Recently, Bombay High Court granted Interim Relief to actress Amyra Dastur in relation to defamatory statements made against her by makeup director Luviena Lodh who claims to be an actress and observed that the defendant has been causing damage to the plaintiff by persistently and continuously making defamatory and libelous statements on social media as well as electronic media.

A successful application for an injunction relies on more than the claimant being entitled to injunctive relief in principle because his personality or privacy rights have been infringed. If Court finds any such libelous and defamatory statements on any platform that has caused harm and damage to the reputation of the plaintiff in the eyes of public and in the society at large and the proceeding is on-going then Interim Relief can be granted under the Civil Procedure Code to restrain the defendant from making, publishing, republishing any further defamatory statements.

A snapshot of the posh Act and frivolous complaints

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) was enacted as a comprehensive legislation to provide a safe, secure and enabling environment, free from sexual harassment to every woman.

The Government also subsequently notified the rules under the POSH Act titled the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“POSH Rules”).

The POSH Act along with the rules has been enacted with the object of protecting and preventing women against sexual harassment at workplace and also to ensure effective redressal of complaints of sexual harassment.

While the statute aims at providing every woman a safe and secure working environment, free from all forms of harassment irrespective of her age or employment status, however unfortunately in recent times it has at times been witnessed that the very Act enacted for the safety of women has at times been used by women employees as a weapon to accomplish their personal vengeance against their male colleagues and employers, which is dangerous as this act could endanger the future of women themselves since the same results in the Hon’ble Courts passing orders protecting the ‘Terrorized and Victimized Men’ which orders can then be used as precedents.

At times it is challenging to determine whether the complaint was malicious on the basis of lack of proofs. This at times leads to many false complainants get away without any punishment even if their accusations prove to be wrong after investigation.

What determines an act of Sexual Harassment

Sexual Harassment includes such unwelcome sexually determined behavior whether directly or by implication as:

  1. Physical contact and advances
  2. A demand or request for sexual favours;
  3. Sexually coloured remarks;
  4. Showing pornography;
  5. Any other unwelcome physical, verbal or nonverbal conduct of sexual nature.

Where any of aforementioned acts are committed in circumstances under which the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary or honorarium or voluntary service, whether in government, public or private enterprise, such conduct can be humiliating and may constitute a health and safety problem, it amounts to sexual harassment in the workplace.

Salient points of the POSH Act

  • The POSH Act protects only women and is not a gender-neutral legislation. Therefore, the safeguards under the POSH Act are not applicable to ‘men victim’s’.
  • It is pertinent to note that offences under POSH Act are non-cognizable ,i.e., which means one cannot be arrested without a warrant.
  • The POSH Act is wide enough to cover both direct and implied sexual conduct which may involve physical, verbal or even written conduct. The key distinguishing feature is that the conduct is unwanted and unwelcome by the recipient. It includes quid pro quo sexual harassment, a form of sexual blackmail.
  • As per section 2(a) of the POSH Act, an ‘Aggrieved Woman’ in relation to a workplace, is a woman of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment. Given that the definition does not necessitate the woman to be an employee, even a customer/client who may be sexually harassed at a workplace can claim protection under the POSH Act. Nowhere is there any mention of a term as ‘aggrieved man’ or ‘aggrieved person’ by which one can speculate that even a man can be subject to sexual violence and needs to be protected under such acts which once made should not be exclusively kept for the redressal of women.
  • The POSH Act applies to both the organized and unorganized sectors. It applies to government bodies, private and public sector organizations, non-governmental organizations, organizations carrying out commercial, vocational, educational, entertainment, industrial, financial activities, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals and also applies to a dwelling place or a house.
  • Section 16 of the POSH Act, ‘Prohibition of publication or making known contents of complaint and inquiry proceedings’ Notwithstanding anything contained in the Right to Information Act, 2005 (22 of 2005), the contents of the complaint made under section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner: Provided that information may be disseminated regarding the justice secured to any victim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses.
  • Section 18 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and Rule 11 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 gives the respondent the ‘right to appeal’ against the recommendations or findings of the investigating team of the internal complaints committee. ‘This is a provision that can act as a deterrent to any false complaints and prevent the misuse of power granted to the internal complaints committee’.

False or Malicious Complaints

In order to ensure that the protections envisaged under the POSH Act are not misused, provisions for action against “false or malicious” complainants have been included in Section 14 of the POSH Act. Section 14 read with Rule 10 of the POSH Rules deals with the punishment for filing false or malicious complaints by the complainant or any other person who is involved in the conspiracy of filing a false or malicious complaint or producing false or misleading documents or evidence. Section 14 of the POSH Act clarifies that the mere incapability to substantiate a complaint or failure to provide adequate proof does not invite action.

TV News channels and the recent controversies

The case of alleged rigging of Television Rating Points (“TRP”) registered in the recent past by the Mumbai police, in which around 11 persons have been arrested and several journalists of Republic TV, including its editor-in-chief Arnab Goswami, have been questioned.

Earlier in October, the Mumbai Police Commissioner Mr. Singh claimed discovery of a racket which was allegedly ramping up viewership of their channels and claimed that the owners of well known TV channels were involved in it.

The police even arrested the owners of two channels out of the three channels that allegations were levied against. Mr. Goswami stated that there was never a case against his channel and that the police were indulging in a “desperate witch hunt” at the instance of their political masters.

With the two sides engaged in an all-out war, both the Apex Court and the Bombay High Court have urged the parties involved to conduct themselves properly.

  • On 9th October, summons was issued to the CFO of the Republic Media Network in relation to investigation in FIR CR No. 143 of 2020; in lieu of which, on the next date Republic TV in order to challenge the summons issued to the network in relation to the TRP scam claimed to have been unearthed by Mumbai Police, moved the Supreme Court.
  • On 11th October, the Chief Executive Officer of Republic Media Network, Mr. Vikas Khanchandani, appeared before the Mumbai police for questioning.
  • Subsequently, on 14th October, its Executive Editor Mr. Niranjan Narayanaswamy and Senior Executive Editor Mr. Abhishek Kapoor recorded their statements before the Crime Branch of Mumbai Police.
  • The matter was taken up by the Apex Court on 15th However, the Court declined to entertain it as the petitioner had recourse to other remedies under law, Justice Chandrachudhad reportedly been quoted as having said, “Your office is at Worli. Worli to Flora Fountain (where Bombay high court is situated) is closer. We should have faith in our High Courts.”
  • On 17th October, the Republic TV media group moved to Bombay High Court challenging FIR no. 843 of 2020 filed by the Mumbai Police in which Republic TV had been charged under Sections 409 (criminal breach of trust by public servant, or by banker, merchant or agent), 420 (cheating and dishonestly inducing delivery of property), 120B (punishment of criminal conspiracy), and 34 (common intention) of the Indian Penal Code. The petitioners also urged that the case be transferred to the Central Bureau of Investigation (CBI) from the Crime Branch of the Mumbai Police.
  • On 19th October when the case was listed, the Court was informed by the Maharashtra Government that neither Mr. Goswami nor Republic TV has yet been arraigned as an accused in the FIR.
  • Appearing for Mr. Goswami, a senior advocate sought interim protection from arrest. However, the Court said it could not pass such an order as Mr. Goswami had not been named as an accused; it is pertinent to note here that an apprehension of arrest is a key factor in obtaining any such protection from the Hon’ble Court. The Hon’ble Court recorded Maharashtra government’s submission that in case Mr. Goswami is made an accused, he will first be issued summons by Mumbai Police while the Hon’ble Court also recorded Mr. Goswami’s argument that he will co-operate with the probe in case summons is issued.
  • On 20 October, ExACP, Iqbal Shaikh of the Mumbai Police also filed a case against Mr. Arnab Goswami and Republic TV accusing them of “running a smear campaign against the Mumbai Police”. The former cop also asked for Rs 5 lakh compensation for causing him “mental agony” and “loss of reputation”.

BARC’s charge on Republic TV for misrepresenting private and confidential information:  Meanwhile, on 18th October, BARC India has issued a charge on Republic TV for misrepresenting its private and confidential communication, in a reply to an email of the Chief Executive Officer of the Republic TV, BARC thanked the network for their ‘faith in the internal mechanisms of BARC’ and said that ‘if there was any disciplinary action initiated against ARG Outlier Media (Republic’s owner), then BARC India would have communicated the same to you along with necessary documents for your response.”

This response was disclosed by the channel on national television.

Republic TV on 19th October through a News Release had said that it would sue the Mumbai Police Commissioner for Rs 200 crore for allegedly damaging its reputation by linking it to the Television Rating Points scam. The channel further added that it would file a contempt petition against Special Executive Magistrate and an Assistance Police Commissioner “on account of the fact that he initiated chapter proceedings with respect to the FIRs [first information reports] that have been suspended by the Bombay High Court,”.

Further, new provisions from the IPC have been incorporated by the Police in relation to the TRP ‘Scam’, Section 174 (Non-attendance in obedience to an order from public servant), Section 179 (Refusing to answer public servant authorized to question), Section 201 (Causing disappearance of evidence of offence, or giving false information, to screen offender— if a capital offence) and Section 204 (Destruction of document to prevent its production as evidence); as two new channels have been suspected for illicitly spiking up TRP rates. According to the officials, while one is a news channel, Fakt Marathi, and the other one is an entertainment channel, Box Cinema.

Hansa Report

A report was prepared by Hansa Group along with the Vigilance Team of Broadcast Audience Research Council (BARC) in order to file a police complaint in the TRP scam case. On October 10, Arnab Goswami on his show, repeatedly telecasted a document constantly referring to it as the ‘Hansa Report’ though this document was kept confidential. Hansa Group aggrieved by the conduct of the channel brought a suit in the City Civil and Sessions Court which however rejected Hansa Group’s request to restrain Republic TV from referring to their ‘internal report’, the court opined the report was already in public domain.

The Hansa Research Group has filed a writ petition before the Bombay High Court alleging pressure and intimidation tactics being used by Assistant Police Inspector Sachin Vaze and his team of Crime Branch, Mumbai police to make false statements against Republic TV and sought a transfer of investigation to CBI or state CID. As per news reports the petitioners have alleged in their fresh petition that Mr. Sachin Vazeand his team are threatening them with arrest in order to pressurize them to make false statements against Republic TV. Petitioners have questioned the “illegal and highly objectionable” conduct of Sachin Vaze and team, resorting to ‘illegal methods’ in treating the petitioners with great bias and prejudice, contrary to provisions laid down in the Code of Criminal Procedure.

The Mumbai police’s crime branch probing the TRP manipulation scam on Tuesday arrested Ghanshyam Dilipkumar Singh (44) the distribution head of Republic TV, on charges of paying a monthly sum to artificially increase viewership figures of the channel. A metropolitan magistrate remanded him in police custody till November 13.

Abetment to suicide case of 2018

Arnab Goswami was arrested on 4th of November, from his residence by the Raigad police in connection to the 2018 abetment to suicide case of interior designer Anvay Naik who was found dead with his mother Late Kumud Naik at their residence.

Anvay Naik had named Arnab Goswami and two other people in his suicide note regarding failure of not paying their dues for the work undertaken by Anvay Naik’s company. The case as per news reports was reopened after two years and was earlier supposedly closed by the police officials last year, as they were unable to find evidence against the accused including Arnab Goswami; it was averred by Mr. Goswami that he faced violence, while the police were taking him.

Mr. Goswami moved the High Court, alleging  that the police does not have the authority to suo moto re-open a case without procuring a judicial order. The division bench heard statements given by senior advocates, representing Arnab Goswami on 5th and 6th November.

The two primary arguments were:

  1. Whether the Case has an illicit Political Agenda
  2. Whether the Case under Section 306 (Abetment to Suicide) of Indian Penal Code can be made, if allegations are admitted.

The 2018 case arose after one Mrs, Akshata Naik, wife of the Late Shri Anvay Naik, registered an FIR against Arnab Goswami and two others, who were all accused of abetting the suicide of the Late Shri Anvay Naik who was found dead with his mother in their house in Kavir Village in Alibaug. Mr. Goswami in his petition to the Hon’ble Court sought the following:

  • A writ of habeas corpus directing the Alibaug Police to produce him in court claiming that his arrest and detention was illegal as Naik’s case was closed
  • Directions to quash the FIR of 2018
  • Quash the memo based on which he was arrested
  • His immediate release from the illegal detention and wrongful custody.

Arnab Goswami wanted to seek regular bail under Section 439 of Criminal Procedure Code. The Counsels stated that the High Court had the authority and the jurisdiction to grant bail under Article 226. After hearing arguments for six hours, the Hon’ble Bombay High Court had reserved the orders on the applications filed by Arnab Goswami and the other two accused however the interim bail was later rejected.  Arnab Goswami moved towards the Hon’ble Supreme Court challenging the dismissal of the interim bail by the Hon’ble Bombay High Court.

The Hon’ble Apex Court granted Bail to Mr. Goswami on 11th November, 2020. The Vacation Bench of Hon’ble Justices Shri. DY Chandrachud and Ms. Indira Banerjee passed the order in an appeal preferred by Mr. Goswami.  During the course of the hearing, Justice Chandrachud observed, “If we don’t interfere in this case today, we will walk on a path of destruction. If left to me, I won’t watch the channel and you may differ in ideology, but constitutional courts will have to protect such freedoms…”

Your thoughts, please