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HC refuses to gag media on Shilpa Shetty’s plea but also upholds right to privacy
Justice Patel ordered the removal of three videos uploaded on YouTube, which referred to Shetty’s moral standing and the quality of her parenting.
Mumbai
The line between freedom of press and the right to privacy will have to be balanced, the Bombay high court said on Friday, refusing to pass a blanket media gag order on a defamation petition by actor Shilpa Shetty, whose husband Raj Kundra is in judicial custody in a case related to alleged production and streaming of pornographic content on online apps.
Justice Gautam Patel was hearing a ₹25-crore defamation suit filed by Shetty against media personnel and media houses.
Shetty sought to restrain the media from publishing any ”incorrect, false, malicious and defamatory” content against her and her family in connection with the July 19 arrest of her husband for allegedly producing and streaming pornographic content on apps. Kundra, 45 is currently in judicial custody.
“I believe some of the issues this suit raises will amount to scrutiny because it is not possible to say at this stage that all statements of all defendants are defamatory in nature,” justice Gautam S Patel said.
“There is a judicial limit on what is good or bad journalism as this comes very close to freedom of press...the line between freedom of press & right to privacy will have to be balanced”.,” he added.
Senior advocate Dr Birendra Saraf and Dr Abhinav Chandrachud appeared for Shetty and argued that videos uploaded by some publishers were, per se, defamatory.
The bench asked them to point out specific instances of individuals uploading defamatory content for ‘salacious’ purpose or mischief. Saraf drew the attention of the bench to the fact that Google, YouTube, Twitter and Instagram had not taken down the content uploaded by individuals and publications, though they were defamatory.
But the judge didn’t agree.
“Your (Shetty’s) case that Google, YouTube, Twitter etc. shall exercise control over editorial content is dangerous. The plaint is like if you (media) are not going to say nice things about me, do not say anything at all. You choose a life in the public eye, your life will come under the microscope. What you are asking me to do can have a chilling effect on freedom of press,” he said.
Justice Patel ordered the removal of three videos uploaded on YouTube, which referred to Shetty’s moral standing and the quality of her parenting. The court found that they were “malicious and with not even a slightest attempt to investigate into the truth of the matter”.
“That part is protected by her right of privacy under the wide protection recognised by the freedom of press to be balanced with right of privacy. It is possible that freedom of speech may have to be narrowly tailored. But it is not possible to ignore the constitutional pinning of privacy nor to say that if a person is a public figure, that person is deemed to have sacrificed his right to privacy,” the bench said.
But justice Patel noted that some other articles mentioned in the suit did not seem to be defamatory. “It cannot be like if you (media) are not going to write or say anything nice about me (Shetty) then do not say anything at all. How can this be?” the judge asked.
“The material here seems to be prima facie drawn from an understanding of what investigating teams have said or indicated. The report is not of Shetty’s guilt or innocence, but of what an investigative agency suspects. I am not inclined to pass an order on this,” he said.
He added that no part of the order should be construed as a gag on the media. “I am making no order, but this is not refusal of interim or ad interim relief.”
The HC directed all defendants in the suit to file their affidavits and posted the matter for further hearing on September 20.
With agency inputs
