Certain members of the Telangana Chamber of Events Industry (TCEI) received a 9 para defamation notice from PPL for few comments made by them on Facebook. The TCEI is a non-government organization, which aims at developing the Events industry in the State of Telangana. The TCEI comprises of sub sectors such as events, light/sound/video, event caterers, event venues etc. It therefore also uses sound recordings for various events that it organizes. PPL, on the other hand, is a ‘company’ (actually a copyright collecting society). Members of PPL (who are the authors/owners of copyright in various sound recordings) authorize PPL to license and administer their copyrights in these sound recordings to third parties.
The Notice from PPL doesn’t really ‘cut to the chase’. The first six paras are dedicated to self praise and at times the notice comes off as a copyright infringement notice more than a defamation notice! Finally (suddenly realizing that this is a ‘defamation’ accusation) in para 7 the notice states that “you have been posting highly defamatory statements [two comments], on social media website “Facebook””. These two comments are dealt with unceremoniously in two short paras: the first comment called PPL a ‘con job’. The person making the next comment said that he knew PPL has looted many and should be tried by law. PPL claims that these statements are false and claims that PPL is “most transparent” and has not “collected any royalty by unlawful means”. The notice then asks TCEI to cease and desist from making defamatory statements. And also asks TCEI to pay TEN crores as damages for defamation (isn’t this similar to ‘looting’!?!).
PPL and IPRS have been embroiled in several controversies with respect to royalty collection and distribution and have recently been trying their best to wriggle away from government scrutiny – all this, despite, them being “most transparent”! PPL has been in the news for – opacity in dealing with foreign sound recordings (here), denying ring tone royalties (here), evading governmental inquiry into their affairs (here and here), only to name a few. Given this chequered background, it seems bold for them to go around handing over “defamation notices” as if they were greeting cards! Though these statements may have ‘offended’ PPL, everything that ‘offends’ is not ‘defamatory’.
Before going into the substantive aspects of whether these statements amount to defamation or not it becomes important to check whether a ‘company’ can even sue for defamation? A recent case by the Delhi High court (ONGC v. Maryada, 2012) discusses the standing of a corporation in defamation cases. The court holds “In general a corporation may sue for a tort [….]The only qualifications are (ii) in case of defamation, it must be shown that the defamatory matter is of such nature that its tendency is to cause actual damage to the corporation in respect of its property or business.[..] But where there is no actual damage, nor any tendency to produce such damage, no action will lie at the suit for the corporation”. The court even said that “So it has been held that a municipal corporation cannot sue for libel charging it with corruption and bribery in the administration of municipal affair”. Clearly, the standard for defaming a company seems higher than defamation of an individual. While an individual just has to prove damage to ‘reputation’, a company needs to prove ‘actual damage’ to ‘business’ or ‘property’. This shows that there is a distinction between damage to ‘reputation’ of a company (which may not amount to defamation) and actual damage to business or property (only this qualifies for defamation). It seems unclear how two comments on Facebook can wreak havoc to the mighty PPL’s business or property.
Even on the substantive aspects, the case of Kokan v Bennett Coleman (2011, Bombay High court) has laid down a test to determine whether a comment is a ‘fair comment’ (a defence to defamation). In order to be a justified defense, “The reader must be able to distinguish facts from the comment. The comment can be based on an inference from the facts and a fair minded reader must be able to discern whether the inference logically follows or not.” Moreover, the court also noted “once this is shown, even if the comment was not true, but was made in good faith, the defence will be justified.” Both the statements are plainly comments/personal views of the person making the statement. The two comments are inferences made from a certain fact situation. Surely, a reasonable and fair minded reader can discern whether they are true or not based on the given facts. Therefore, since these are just fair comments, even if the comments are not true, they are may not be ‘defamatory’.
Even if these claims were false and were not fair comments, wouldn’t it have been more effective to set the record straight immediately by replying with the ‘truth’ on Facebook, instead of sending a menacing notice via 24 hour courier? Various aspects of this notice and surrounding situation, brings out the larger problem of subterranean censorship. The notice spends most words on describing ‘who ‘PPL’ is’, coupled with the demand for 10 crores, (with only two short paras on the real cause of action) seems to suggest that PPL is trying to send out a “don’t mess with us” warning.
Courts have started acknowledging the growing practise of SLAPP suits and have started coming down hard on such practises (see here). Courts have also become wary of granting interim injunctions in cases of defamation (Naveen Jindal v. Zee) “Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with granting of interim injunctions.”
While the evil of subterranean censorship will take organized effort to overcome, here is a gem of a phrase from the Delhi High Court (here), which seems like good advice to public figures (and the heart of the message is applicable to big companies as well) who are constantly insecure about their image and as a consequence interfere with fundamental rights of others “if the plaintiff is so sensitive and thin skinned then he ought not to have taken a rough and tough path…”