The Supreme Court of India in Bloomberg Television v Zee Entertainment outlined stringent principles for the grant of interim orders injuncting free speech, especially in the context of SLAPP suits. This decision underscores the judiciary’s commitment towards safeguarding the fundamental right to freedom of speech and towards preventing the misuse of SLAPP litigation, intended to stifle public debate and criticism.

A SLAPP, standing for ‘strategic lawsuit against public participation’, is a legal action intended to censor, intimidate and silence critics by burdening them with the cost of a legal defence until they abandon their criticism or opposition [see Crop Care Federation Of India v Rajasthan Patrika, 23]. In the Bloomberg case, the Supreme Court of India defined SLAPP litigation as ‘an umbrella term used to refer to litigation predominantly initiated by entities that wield immense economic power against members of the media or civil society, to prevent the public from knowing about or participating in important affairs in the public interest’ [10].

The most common legal avenue for filing a SLAPP is through a civil suit of defamation, leveraging the threat of substantial damages to intimidate and silence the targeted party. Further, such suits are generally supplemented with an interlocutory for the grant of a pre-trial injunction. Pre-trial injunctions, commonly known as interim injunctions, are typically sought at an interim stage, before the conclusion of the full trial and final adjudication by the courts. These injunctions are generally intended to achieve one or both of the following aims: the removal of the allegedly defamatory material from public platforms, on the one hand, or the issuance of a gag order restraining the defendant from making further public statements or publishing any additional material against the plaintiff, on the other. In many cases, both the removal of the material and the gag order are sought and granted simultaneously.

Thus, the grant of an interim injunction often intends to inflict a ‘death sentence’ on the material sought to be published or already published, before the completion of a full trial and adjudication of the Court. This not only hampers one’s right to free speech but also has a chilling effect that threatens the free participation of the public in a democratic society.

The grant of interim injunctions in India is primarily governed by the three-fold test consisting of (i) a prima facie case, (ii) a balance of convenience, and (iii) an irreparable loss or harm. While this test is equally applicable to the grant of interim injunctions in defamation suits, the Supreme Court in the Bloomberg case recognised that ‘an additional consideration of balancing the fundamental right to free speech with the right to reputation and privacy must be borne in mind’ [7] when considering interim injunctions in suits concerning defamation by media platforms and/or journalists. The Court further held that the judiciary must proceed with caution while granting pre-trial interim injunctions in accordance with the constitutional mandate of protecting journalistic expression [7].

The Court held that the standard to be followed is the ‘Bonnard standard’, laid down in Bonnard v Perryman by the Court of Appeal of England and Wales, which has acquired the status of a common law principle for the grant of interim injunctions in defamation suits. Under the Bonnard standard, an ex-parte injunction should not be granted without establishing that the alleged defamatory contents sought to be restricted are malicious or palpably false [9]. It further mandated that in all other cases, injunctions against the publication of material should be granted only after a full-fledged trial is conducted or, exceptionally, after the respondent is given a chance to make their submissions and that the same would undoubtedly fail at trial [9].

The Bonnard standard is essentially based on the principle that free speech is a fundamental right that serves the public interest and should be exercised without impediment, so long as no wrongful act is committed. Therefore, the courts must act with great caution in granting interim injunctions in defamation cases, avoiding when possible the premature restriction of free speech. Additionally, the Supreme Court further noted that when granting interim injunctions in defamation suits, courts must consider the potential misuse of prolonged litigation as a tactic to silence or intimidate the opposing party, a practice often associated with SLAPP actions [10].

Although there is no formal anti-SLAPP law in India, the Supreme Court’s adoption of the Bonnard standard has established a stringent threshold for granting interim injunctions in defamation suits. This approach signals the judiciary’s firm stance on preserving free speech, while also laying the foundation for a robust judicial framework to deal with SLAPP suits filed under the guise of defamation.

The author would like to thank Mr. Ramchandra Madan, Advocate on Record, for the insightful conversation that formed the foundation for this article.

Read more:

• The Right to Protest: Limiting the Right to a Class of Citizens In India.
• Is Regulating Disinformation at Odds with Free Speech? An Analysis of India’s Approach.
• Proportionality in theory, not practice: Internet Rights in Indian Courts.
• Curtains over Connectivity: A Peek Behind India’s Opaque Internet Shutdown Orders.