Lawyers Def(r)amedOr Can indeterminate class of lawyers be defamed?
Reputation, reputation, reputation!
O! I have lost my reputation.
I have lost the immortal part of myself, and what remains is bestial.
My reputation, Iago, my reputation!
Shakespeare’s Cassio in Othello
Netflix has been in middle of a row involving defaming the whole class of lawyers in one of their series Hasmukh. Couple of lawyers (Petitioners) have taken offence to one of the episodes of Hasmukh where the lead character, a comedian, murders his lawyer and then goes on to a stand-up comedy show where he belittles the lawyers community including making statements that lawyers rape with their pens. Petitioners allege that the dialogues are “disparaging, defamatory and bring disrepute to the legal profession and lawyers in the eyes of general public and are a constant stigma on the image of lawyers and a constant source of annoyance to the plaintiff and have lowered the image of lawyers and the plaintiff amongst the public at large.” Accordingly, a civil suit (Netflix case) has been instituted in the Delhi High Court. The Delhi High Court virtually heard the matter on April 27, 2020 and rightly denied interim injunction to the petitioners.
What is defamation
In the words of HMJ Dr. B. Siva Sankara Rao, J. “Defamation is a catch-all term for any statement that hurts someone's reputation. Written defamation is called "libel," and spoken defamation is called "slander" under common law. In common law, defamation is a civil wrong, rather than a criminal wrong.”. In other words, anything that can sully the reputation of another person without any credible justification or reason can be liable for defamation.
The remedy for defamation can be either be civil or criminal. India is one of the few democratic countries that continue to maintain defamation in its criminal statute books. Attempts to hold defamation as criminal offense being unconstitutional have failed. Defamation also continues to be one of the eight exceptions to free speech under Article 19(2) of Constitution of India.
The difficult part of defamation law is its attempt to balance constitutionally provided right to free speech (including fair comment, criticism, satires, parodies etc) versus constitutionally provided reasonable restriction to free speech vide defamation. At one end of the spectrum lies the free and fearless dissemination of ideas, thoughts, opinions and on the other end of the spectrum if the need to protect persons from wrong information about the persons. As reputation, for some, is the most important aspect and once reputation is sullied, there is no or little chances of redemption. At the same time, not every statement, disagreement or insult requires the fear of litigation hanging like the sword of Damocles. This is in particularly relevant in political and social disagreements in free society
Generally, in India, it seems that are more criminal complaints for defamation cases then cases of defamation through civil suits. This could be because in India, criminal cases are generally perceived as bigger threat with summons and whatnot. Criminal justice machinery acts as an effective scare mechanism, inevitability leading to legitimate criticism/opinions/concerns becoming lesser. Only few can withstand the rigors of criminal justice system in India especially if initiated by rich and powerful.
Not the first time
This is not the first time that lawyers have taken offence and moved the courts for defaming lawyers as a whole class. There are at least two cases involving the famous Asha Parekh and superstar Sharukh Khan where it has been held that lawyers are an indeterminate class and defamation cannot extend to an indeterminate class of persons. Sure enough, these cases have been cited and relied upon in the Netflix case. Asha Parekh and Sharukh Khan cases were about 22 years apart and Netflix comes about 13 years from Sharukh case. It seems that every decade or so lawyers feel that the class of lawyers has been defamed by films and stand ups.
The difference between the cases is that Asha Parekh and Sharukh Khan cases were covered under Section 499 of Indian Penal Code (IPC) and thus were criminal cases. Netflix, as opposed, is a civil action.
In criminal cases, in order to succeed, the Petitioner has to show beyond reasonable doubt that there has been defamation whereas in civil case, the preponderance of possibility is sufficient. The way defamation law has developed in India, getting summons issued for defamation under the criminal route is easier. In this case considering the lockdown due to pandemic, it seems that Petitioners went the civil route. An additional aspect that may have weighed on the Petitioners is that in civil action that the Petitioner may be hoping that there is a possibility of getting an interim injunction based prima facie case, burden of proof and balance of convenience. Whatever, the motive or strategy, the decision by the Delhi High Court is sound.
Can an entire class of persons be defamed?
The position is settled that an indeterminate class of persons cannot be defamed. This was established in an English case Eastwood v. Holmes in 1858 where Willie J. observed, "If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individual." This was followed in another English case -Knupffer v. London Express Newspaper . Thus, a class of persons cannot be defamed as a class, nor can an individual be defamed by general reference to the class to which he belongs . No action would lie at the suit of anyone for saying that all mankind is vicious and depraved or even for alleging that all clergymen are hypocrites or all lawyers dishonest. For charges so general in their nature are merely vulgar generalization.
This principle has been accepted and adopted by the Indian courts in G. Narasimhan observing that even in the criminal provision under Section 499 talks of a collection of persons as capable of being defamed, such collection of persons must mean a definite and a determinate body.
In Asha Parekh and Sharukh Khan cases the situation was pretty much the same as in Netflix case i.e. a group of lawyers filed a defamation case stating that there were defamatory statements made against the lawyers as a class. The Court correctly held law requires that the defamatory statement to be actionable must be made against a definite and an identifiable group.
In Asha Parekh case, it was observed that advocates as a class are incapable of being defamed as firstly, lawyers is not a homogenous class, but a heterogeneous one, made up of wonderfully different individuals. Secondly, Advocates are spread over the length and the breadth of the land. Thirdly, the class is always in flux, ever changing, as new lawyers enter and old ones depart the profession. The entire members of the class are clearly unidentifiable and indeterminable.
Lawyers represent a varied cross section of public. Not ever lawyer is scrupulous and just like any profession, there are some bad seeds. As lawyers are always the face of a litigation and known for their court craft, there will always be litigants and indeed other lawyers who do not like the lawyers. There are numerus jokes on lawyers as is for other professions. Some statements are good, some outrightly obscene. Be that as may, being a lawyer means to have the wisdom to understand others and their outlook. As a profession, we lawyers take ourselves too seriously. Let us endeavour and endure to be more Hasmukh.
Vaibhav Vutts, is a practicing attorney at Delhi High Court and Managing Partner at Vutts & Associates LLP, an Intellectual Property law firm. The views of the author are personal and do not amount to legal advice. Author can be contacted at firstname.lastname@example.org