Tharoor vs Arnab: Calling Out Defamation or Assault on Free Press?

Clearly, Tharoor was not arguing that the press does not have a right to report on the matter at all.

(Photo Courtesy: Rhythum Seth/The Quint)

Regardless of the merits of the ongoing case between Shashi Tharoor and Arnab Goswami, the fame and reputations of both protagonists, and the manner in which the saga is playing out, the case has a broader significance for Indian journalism.

In one corner, we have the freedom of the press to investigate and inform the public about things they would not normally have access to.

In the other, we have the idea that when doing so, journalists must behave responsibly, not throw out baseless accusations as fact and sensationalise things in such a manner as to distort their true meaning. It is perhaps inevitable that Arnab, whom nobody could accuse of being subtle, is at the centre of this important debate, and that a famous politician is also involved, with press credibility being questioned by politicians around the world.

Drawing the Battle Lines

On Friday, 26 May 2017, Congress MP Shashi Tharoor filed a civil defamation case in the Delhi High Court against Arnab Goswami, Republic TV and Arg Outlier Media Asianet News Private Limited (Republic TV’s parent company). The suit alleges that Goswami and Republic TV made defamatory statements about Tharoor during their alleged exposé broadcast from 8 May to 13 May regarding the death of Sunanda Pushkar, Tharoor’s wife.

Tharoor sought an injunction against Republic TV making any further broadcasts on the matter till the Delhi Police completed its investigation, as well as for damages of Rs 2 crore in the main suit.

Goswami’s response to this development was the first indication that the matter was going to be treated as more than just a defamation suit, stating that:

My response is that it is a matter of great concern that Tharoor wants to block a TV channel from finding out the truth about who killed his wife.

Arnab Goswami

Also Read: Tharoor Sues Arnab for Defamation Over Republic’s Sunanda ‘Exposé’

Round 1 in Court

The Delhi High Court held its first hearing on the matter on Tuesday, 30 May 2017, and while we didn’t learn very much about the merits of the case, the broader issues at play were in full evidence. Republic TV, in a manner that would make Amit Shah or Lynton Crosby proud, spun the day’s proceedings as a “big win” for them, claiming that their “right to report” on the matter had been upheld.

Was There a Threat to Republic’s Right to Report?

As can be seen from Goswami’s original response to the suit and Republic’s tweets after the first hearing, Republic is treating the suit as an attempt by Tharoor to block reporters from getting to the truth of Pushkar’s death, and providing this information to the public. If true, this would be, to put it in simple terms, a very bad thing. A politician trying to impede investigations into his own potential wrongdoings? Everyone knows that screams corruption and guilt.

Luckily for Tharoor, this is not quite true. To understand this, we have to understand the two components of Tharoor’s case:

1. The main case is one of civil defamation in which Tharoor is claiming damage to his reputation from the manner in which Republic TV has presented its coverage. This case rests on the fact that the Delhi police has still not completed its investigation into Pushkar’s death, and has still not framed charges against anyone for murder.

Despite this, Goswami and Republic have over the course of their coverage branded Tharoor a murderer, and insinuated that Tharoor is lying when he says he does not know what happened to his late wife. This component of the case rests on Tharoor being able to prove the elements of civil defamation (discussed below) and Goswami and Republic not having an applicable defence.

2. To ensure that his reputation was not further maligned by Republic TV while the police is conducting its investigation, Tharoor asked for an injunction (what you might also know as a stay, or restraining order) that would stop Republic TV from broadcasting anything relating to Pushkar’s death during this time.

Also Read: Bring Down the Rhetoric: HC to Arnab on Tharoor Defamation Plea

Clearly, Tharoor was not arguing that the press does not have a right to report the matter at all. Tharoor’s advocate Salman Khurshid acknowledged during the first hearing that the request was not meant to stop reporting on the police investigation, but rather to counter Republic’s manner of reporting, as a result of which he agreed that Republic didn’t need to be stopped entirely from reporting on the matter. 

Even before they had accepted this modification, the original injunction request was not meant to last forever, but only till such time as the police finished its investigation – at which point all parties would be in a better position to make allegations and defend them. There was no attempt to restrict coverage of the issue by the press as a whole, but only to temporarily restrict a media outlet from presenting its coverage in a manner that no reasonable person would consider objective.

As a result, although the Delhi High Court did not grant the injunction wholly, it directed Arnab and Republic to restrain its language and not indulge in name-calling when reporting on the matter.

At no point did the court view this as a restriction of the right to report, and it has very clearly indicated to Republic TV that the ability to report does not mean a free hand to run a smear campaign.

Threat to Press Freedom?

It is certainly in Republic’s interests to spin this issue as one of press freedom being under attack. The potential chilling effects of high-profile defamation cases was one of the key reasons why the IPC provision on criminal defamation was challenged in the Supreme Court.

By framing the case in such terms, Republic not only keeps its own fans on board, but also pre-empts many of its critics – who ardently believe in free speech and critical thought – from supporting Tharoor’s case.

This would be a significant coup at a time when polarisation of the national discourse is a serious concern. After all, Arnab and his insurgent channel can be considered the worst examples of partisan, polarising behavior. Republic’s modus operandi is to sensationalise, exaggerate and whip up emotional responses.

If it can successfully paint Tharoor’s attempts to get them to behave responsibly as an attack on press freedom, it will be able to continue acting in such a manner at all times. And make no mistake – the real issue here is journalistic responsibility.

The Perils of Fake News

There is no doubt that the press should be free to conduct investigations and present their findings without fear of restriction. But in their quest for eyeballs, newspapers and TV channels often throw any sense of civility and objectivity out the window. Doing so can mean making false claims that someone has committed a crime, or insinuating that they are deceitfully avoiding liability, or making any other unsubstantiated claims about someone. And such actions are not without consequence.

Defamation is a means to stop awful consequences. It is dangerous, yes, to make it a criminal offence, but civil defamation is an entirely different matter. Instead of charges prosecuted by the state under a penal statute, civil defamation is a private dispute under the common law of torts, and there is no threat of punishment with imprisonment.

One could argue that even civil defamation can have a chilling effect on speaking truth to power, as those in power would have more resources to litigate and tie up matters in the courts. However, civil defamation is not easily misused, and by virtue of being a dispute between two private parties, crucially, does not involve state sanction.

Someone alleging civil defamation has to prove the publication of a false statement, without lawful justification, which lowers their reputation in society. They thus have to prove damage caused to them, as well as counter any defences raised by the person whom they are suing for it. Even though a defamatory statement is presumed false in such cases, the defendant has a number of defences that should be easy to prove in frivolous cases.

Unlike in criminal defamation cases, truth is a complete defence to the tort of civil defamation. A person being sued for civil defamation can also claim that allegedly defamatory statement was a fair comment on a set of facts, ie: an expression of opinion. There are a number of defences to civil defamation that are also of particular benefit to the press, including that of ‘innocent publication’, as well as protection of someone who merely repeats a defamatory statement made by another.

Was Republic’s Coverage Defamatory?

It is for the courts to decide on the merits of Tharoor’s claim of defamation. Republic TV has made things easy for him, of course, by not taking the simple precaution of using the regular qualifiers of “allegedly” or “supposedly” etc when referring to Tharoor as a murderer, or claiming to have caught him lying.

As discussed on The Quint, the claims in the broadcasts were high on sensationalism, but the insinuations were generally baseless. There was nothing in the tapes that proved anything about Tharoor. Without even getting into the veracity of the claims or the tapes, if Republic had just stuck to reporting what was on the tapes, Tharoor would have been able to do nothing about their coverage.

By deciding to grandstand, then call Tharoor a murderer one minute, while imputing his involvement the next, Republic went from doing a public service by bringing to light the unaccountable delay in the murder investigation, to smearing Tharoor on live television.

Tharoor should easily be able to prove that damage has been caused to his reputation. And unless Republic TV have some even better dirt up their sleeves, or somehow the police conclude their investigation and Tharoor is convicted by a court in record time, no defence to defamation should be open to them.

Of course, it is quite unlikely that success for Tharoor will make one whit of a difference to Arnab & Co, who pride themselves on being brash and abrasive. But we can hope that it will at least make them realise that words have power, and using them irresponsibly has consequences.

(The writer is a lawyer qualified to practice in India, and England and Wales, and can be reached @VakashaS. He is currently working with Rao Law Chambers, a boutique tax advisory firm in Bengaluru. This is an opinion piece and the views expressed above are the author’s own, and not representative of Rao Law Chambers or The Quint. The Quint neither endorses nor is responsible for the same. )