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PPL’s defamation notice: More subterranean censorship?


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…”

 

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Aparajita Lath

Aparajita graduated from the WB National University of Juridical Sciences, Kolkata. She was formerly an editor of the NUJS Law Review. She is a lawyer based in Bangalore. All views expressed by her on the blog are her personal views.

9 comments.

  1. AvatarKjs Gurna

    I think PPL has written to the copyright board to not to register them as a copyright Society. Thus they are no longer a government recognized Copyright society.

    Reply
  2. AvatarAparajita Lath Post author

    Dear Ravi and Ashok,
    Thank you and also the civil suit for groundless threats is really good news!

    Reply
  3. AvatarKinjal Bhattacharya

    Hi,

    I run an artist and event management agency named E365 Media Solutions based out of Kolkata. I had previously always supported PPL and IPRS from the understanding that they ‘work for the benefit of the music industry and the musicians’ and that this will generate more royalty for all artists and also pump money into the music industry that is already screwed up by piracy.

    But unfortunately PPL and IPRS started being extortionists, and sending legal notices to colleges and clients every now and then, sabotaging events by involving the local police station, demanding more money from events randomly at their own whimses, and having ‘under table’ settings with various agents- hence having no transparency in operations and billing. There happened an instance when I got down 4 foreign metal bands and IPRS demanded Rs. 2.52lac as license fees. When I asked them to show their copyright documents of these international bands, they threatened me with a legal notice from a Supreme Court lawyer. I sent documents from the band in which they gave declarations that they don’t have any IPRS membership globally, their lawyer suddenly became silent.

    Henceforth, my relationship with PPL and IPRS have never been good. Managing almost 50 bands, and hence 300 musicians- none of them ever getting any royalty from any record label or copyright society, I realised that PPL and IPRS have both been extorting money from us, and my assumptions were confirmed when friends from big record labels talked about not getting paid by PPL and IPRS regularly. All of a sudden, a representative of Winflex Communications, the authorized agent of Novex Communications, knocked on my office door and informed that I have to get their license too to play music of YRF, Shemaroo, UTV, etc. Their published rate is 1lac rupees per song for a ticketed event!

    In the midst of all this, I was very happy when I read about PPL and IPRS losing their copyright society licenses, and I simply shared the photographs from a Bangalore based DJ’s post. Within a week, PPL sent me a 10 crore defamation notice claiming my post has tarnished their goodwill and bla bla bla. I understand that this is an attempt to silence me and similar people. I have a very strong network of event managers in my social profile and they have all taken my post seriously because all of them are disgusted with PPL and IPRS staff too.

    I consulted with my friend Ashish Arun, a passout of NUJS Kolkata, and also came to know Mr. Neeraj Thakur of Telengana and his RTI applications against PPL and IPRS. I personally spoke to Mr. Thakur who told me about Professor Basheer, and Ashish also mentioned about him. I humbly request Prof. Basheer and his team of copyright experts to guide me and several other innocent musicians/ event professionals who are being victimized by these kind of atrocities. What should I do about the legal ‘threat’? And how do I tackle their nuisances in my future events? PPL, IPRS, Novex, in future TSeries, Venkatesh all will individually ask for license money. The record labels supposedly get only 35000 per year from PPL/ IPRS. The artists never get any royalty in most cases. How do they dare collect public money and how do they dare threaten us in court? What stand should we take?

    Kinjal Bhattacharya,
    E365 Media Solutions.
    [email protected]
    9836066135

    Reply
  4. AvatarGautam Bhatia

    Aparajitha,

    Thanks for pointing out the Jindal case. I just read it, and found para 26 particularly interesting, where the judge distinguishes the Swatanter Kumar judgment:

    “26. I am cognizant of the fact that it is not unusual in a given case where a pre-publication restraint order has been passed by this court although both the parties have not cited the judgment of Swatanter Kumar vs. The Indian Express Ltd. & Others passed by this court in C.S. (OS) No.102/2014 on 16.1.2014 in which a pre-publication restraint order was passed against reporting his name or photograph and without giving his side of the story but the facts of that case were slightly different than the facts of the present case. In the said case, the plaintiff was a former Judge of the Supreme Court and present holder of a position of Chairman of an important tribunal. Further, by virtue of his holding of a past office and the present one, he was under an obligation not to have publically refuted the allegations made against him which is unlike in the case of a person who has been a sitting MP on two occasions and is aspiring to get elected for the third time where he *has ample opportunity to address the public, hold a press conference, give his side of the story* despite the fact that the guidelines of the NBSA also laid down that in such cases where they are reporting about the accusations, televising agency must give the views by the aggrieved party also. Therefore, so far as the judgment of former judge Mr. Justice Kumar is concerned, that is totally distinguishable from the facts of the present case.”

    Essentially, he’s arguing that one reason why public figures have to meet a higher threshold in defamation suits is because of their ease of access to the infrastructure of speech, and their ability to amplify their voices in order to respond. It’s an argument that’s part of free speech/defamation doctrine in other jurisdictions, but not so much in India. Hopefully it will become one going forward.

    Reply

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