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2021 DIGILAW 1061 (BOM)

Shilpa Shetty Kundra v. Clapping Hands Pvt. ltd.

2021-07-30

G.S.PATEL

body2021
JUDGMENT G.S.PATEL,J. - This is an ad-interim application for urgent injunctive relief in an action for damages and injunctions in defamation. The Plaintiff, 30th July 2021 Ms Shilpa Shetty, is a well-known actor. She has had a long career in media, film, fashion and, for some time, in the Indian Premier League of T20 cricket. She is married to Mr Raj Kundra, a businessman with varied enterprises and ventures. Recently, Mr Kundra stands accused in certain criminal proceedings. Those criminal cases or proceedings are of no concern to me today, except to the limited extent that, as Mr Kundra's spouse, those allegations and accusations are, or so Ms Shetty says, sought to be applied in a defamatory manner to her. 2. Dr Saraf and Dr Chandrachud who appear for Ms Shetty make it abundantly clear that it is not their application that there should be pre-censorship or a gagging of the media. What they do point out is that there are at least some commentaries that have appeared recently in various publications, attributable to different source, that are per se defamatory. These cannot be said to be protected as fair reportage. In one or two instances, they also submit that these comments are a legally impermissible transgression of Ms Shetty's constitutionally protected right to privacy. 3. Ms Shetty's plaint complains of several commentaries that appeared after Mr Kundra's recent troubles began. She says these are all defamatory. These commentaries are in print or in video. They are attributed to different parties. 4. There are 29 defendants to the suit. The 29th Defendant is a 'John Doe / Ashok Kumar' entity, name and address unknown. An injunctive order in a defamation action cannot, I imagine, be made against an unknown party. Among the others, there are some publications and some individuals said to be associated with those publications. Some of these Defendants include the Free Press Journal (Defendant No. 11), NDTV (wrongly described in the name against Defendant No. 13), and some other enterprises such as Defendant No. 2 (peepingmoon.com). 5. Then there are some individuals who have media accounts of their own (i.e., as individuals, not news outlets). 6. Defendants Nos. 22, 23, 25, 27 and 28 are, respectively, Facebook, Instagram, Twitter, YouTube and Google. 5. Then there are some individuals who have media accounts of their own (i.e., as individuals, not news outlets). 6. Defendants Nos. 22, 23, 25, 27 and 28 are, respectively, Facebook, Instagram, Twitter, YouTube and Google. Dr Saraf and Dr Chandrachud also do not suggest that these entities are required in law to engage in any censoring or editorial activity beyond ensuring a compliance with their own terms of service. 7. What Dr Saraf and Dr Chandrachud do point out, however, is that there are at least some statements that have appeared online -- specifically those by Defendant No. 17, Defendant 19 and Defendant No. 20 -- which are (a) per se defamatory; (b) admit of no tenable defence; and (c) cannot in any sense be said to be justified. 8. Defendant No. 17 is a TV channel apparently in Uttar Pradesh. Defendant No. 19 says she is an online journalist. She also claims to be a friend of Ms Shetty, though that now may be a thing of the past. Defendant No. 20 is an individual who has a personal YouTube account. 9. Some of the issues this suit raises will require a closer scrutiny at a later date. It is not possible to say at this prima facie stage that all the statements by all the Defendants are of the same defamatory character. Dr Saraf has, on instructions, presently restricted his application for urgent ad-interim relief to two or three cases. But this is not to be construed to mean that I have rejected his application in regard to the others, nor to mean that he has conceded that he has no case against the others. 10. Defendant No. 17 uploaded a video. A translation of the transcript is at pages 169-171. Dr Saraf complains about the initial portion where a set of rhetorical questions are posed, including whether Ms Shetty had merely put up a pretence of being upset during one particular incident. That set of three questions is phrased in such a manner that the answer to any one could only be adverse to Ms Shetty. Had it remained at this, I might have been inclined to let it pass. These are matters of subjective perception. People will view the same incident from differing perspectives and different people will raise different questions, sometimes ones awkward to the subject of the questioning. 11. Had it remained at this, I might have been inclined to let it pass. These are matters of subjective perception. People will view the same incident from differing perspectives and different people will raise different questions, sometimes ones awkward to the subject of the questioning. 11. Unfortunately, Defendant No. 17 did not stop at that. It has, later in the same video, gone on to adjudge Ms Shetty's reactions. It clearly portrays her as being duplicitous at a personal level; she is accused -- and this is portrayed as some determined, unassailable fact -- of having put up a charade of being upset. This is a not a narrative or even a question about this or that conduct by Ms Shetty. It adjudges her action and finds her guilty. On the face of it, that is to say prima facie, this statement is entirely malicious and unsupported. I do not think it appropriate to reproduce the statement; I have identified its place in the annexures to the plaint, and this must suffice. This video by Defendant No. 17 uploaded on 26th July 2021 will need to be taken down. So ordered. 12. Defendant No. 19 stands similarly accused of having uploaded a defamatory video. A transcript is from pages 113-114. She is represented today. Her Advocates states that this video has been taken down and says that it will not be uploaded again. The statement is noted and accepted as an undertaking to the Court. 13. Defendant No. 20 is an individual. He also published and uploaded a video on the YouTube channel called Shudh Manoranjan. A transcript (pages 175-177) shows that the 20th Defendant, Mr Shivkant Gautam, included in the course of that video a statement on the moral standing of Ms Shetty. He went on to question the quality of her parenting of of her minor children. Ex facie, this is impermissible at multiple levels. It is, prima facie, malicious, very likely with reckless disregard to the truth or and possible knowing it to be false. It is also a completely impermissible encroachment on Ms Shetty's right to privacy. 14. Dr Saraf correctly points out that Mr Kundra's recent tribulations do not involve, and should not be allowed to involve, the couple's children or Ms Shetty as their mother. That aspect of her life is clearly protected by the law on privacy. It is also a completely impermissible encroachment on Ms Shetty's right to privacy. 14. Dr Saraf correctly points out that Mr Kundra's recent tribulations do not involve, and should not be allowed to involve, the couple's children or Ms Shetty as their mother. That aspect of her life is clearly protected by the law on privacy. Both she, in that capacity, and her children are entitled in law to be shielded from prying by others, and certainly from any moral adjudging. 15. The considerations in a defamation action, and the wide protection to freedom of speech and freedom of press, must be balanced against the right to privacy. The latter is now recognized as a constitutionally protected right. Exceptions to the right to free speech may need to be narrowly tailored. But no court can fail to recognize the constitutional underpinnings of the right to privacy. No court can say that because a person is a public figure of some sort, therefore that person must be deemed to have forever sacrificed her or his right to privacy. The right to free speech is not a declaration of open hunting season on individuals in transgression of their right to privacy. 16. The video by Defendant No. 20 prima facie crosses this line. I am now told that Defendant No. 20 has -- only this morning -- taken down this video. Taken down it shall remain. It is not to be uploaded again. So ordered. 17. The two statements by Defendants Nos. 17 and 20 seem to me even at this ad-interim stage to be malicious, with not the slightest regard to any facts. Both seem to take the high moral ground and find Ms Shetty wanting, or coming up short. Neither seems to have any discernible factual basis. Prima facie, both are per se defamatory. 18. Next, there is the material published by the 2nd Defendant, PeepingMoon.com. This directly relates to the investigations into Mr Kundra. The report says that Ms Shetty is 'suspected' of destruction of evidence. There is a transcript from pages 100 to 104. Dr Saraf draws attention to the transcript at page 103. But the material here seems to to be drawn from an understanding of what investigative teams have either said or indicated. The reportage is not of Ms Shetty's guilt or innocence but of what an investigative agency suspects. There is a transcript from pages 100 to 104. Dr Saraf draws attention to the transcript at page 103. But the material here seems to to be drawn from an understanding of what investigative teams have either said or indicated. The reportage is not of Ms Shetty's guilt or innocence but of what an investigative agency suspects. I am not inclined to make any observations or pass any orders regarding this material at this stage. 19. No part of this order is to be construed as a blanket ban or gag. The two or three instances that I have mentioned above are specific to those individuals and those statement of which Ms Shetty complains. Equally, this order is not a license to the persons against whom I have made an order to continue in the same vein. This order is not a refusal of either interim or ad-interim relief as against the others. 20. Hence the following order: (a) Leave to amend the plaint and the IA to correct the names and addresses of Defendants Nos. 13 and 14. The correct names will be communicated by the Advocates of the Defendants Nos. 13 and 14 to the Advocates for the Plaintiff by 6th August 2021. Amendment to be effected by 9th August 2021. The Plaintiff's Advocates will communicate the amendments to all other named Defendants or their Advocates; there is no need to serve the plaint and IA once again. Re-verification is dispensed with. (b) The video by Defendant No. 17, Capital TV, (transcript at pages 169 to 171) will be taken down and not uploaded again. (c) The statements by Defendant No. 19, Ms Heena Kumawat, (i) that she has taken down the video attributed to her (transcript at pages 113-114) and (ii) that she will not upload that video again are both accepted as undertakings to the Court. (d) The statement by Dr Saraf that Defendant No.20, Shivakant Gautam, has taken down and deleted the video he uploaded (transcript at pages 175-177) is noted. Defendant No. 20 is not to upload that video again. (e) The served Defendants will file and serve their respective Affidavits in Reply on or before 18th August 2021. A single consolidated Affidavit in Rejoinder is permitted to be filed and served on or before 26th August 2021. 21. Defendant No. 20 is not to upload that video again. (e) The served Defendants will file and serve their respective Affidavits in Reply on or before 18th August 2021. A single consolidated Affidavit in Rejoinder is permitted to be filed and served on or before 26th August 2021. 21. Defendants No 17 (Capital TV), Defendant No 19 (Ms Heena Kumawat) and Defendant No 20 (Mr Shivakant Gautam) are put to notice that if there are further transgressions, i.e., if they put out other material that can fairly be said to be defamatory or which constitute an impermissible intrusion into Ms Shetty's privacy, I will consider making an order of wider amplitude against them. 22. List the Interim Application matter on 20th September 2021 for final disposal. 23. Last: I find that many Advocates did not give their appearances. There is an established protocol for submitting appearances. There is even an uploaded fillable PDF form. No appearances are permitted in the 'chat' during an online hearing. I refuse to entertain any application for speaking to the minutes. This will hold good for all future hearings: all appearances must be given in accordance with the standard protocol or they will not be reflected in any order. 24. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production of a digitally signed copy of this order.