(vi) construction and infrastructure contracts, including
tenders;
(vii) agreements relating to immovable property used
exclusively in trade or commerce;
(xiii) subscription and investment agreements pertaining to the
services industry including outsourcing services and financial
services;
(xvii) intellectual property rights relating to registered and
unregistered trademarks, copyright, patent, design, domain
names, geographical indications and semiconductor integrated
circuits;
(xviii) agreements for sale of goods or provision of services;
(xix) exploitation of oil and gas reserves or other natural
resources including electromagnetic spectrum;
(xx) insurance and re-insurance;
(xxi) contracts of agency relating to any of the above; and
(xxii) such other commercial disputes as may be notified by the
Central Government.
Explanation.-A commercial dispute shall not cease to be a
commercial dispute merely because--
(a) it also involves action for recovery of immovable property or
for realisation of monies out of immovable property given as
security or involves any other relief pertaining to immovable
property;
(b) one of the contracting parties is the State or any of its
agencies or instrumentalities, or a private body carrying out
public functions."
(emphasis supplied)
41. Upon a plain reading of the above, it can be understood that Section
2(1)(c) defines a "commercial dispute" as a dispute arising out of several
categories, including intellectual property rights such as trademarks,
copyrights, patents, etc. Notably, the explanation in Section 2(1)(c)
clarifies that a commercial dispute does not cease to be a commercial
dispute merely because it involves a claim related to immovable property
or because one of the parties is the State. The explanation serves to prevent
challenges to the jurisdiction of the commercial court by adding peripheral
claims related to immovable property.
42. The explanation make it clear that once a dispute qualifies as a
commercial dispute, it does not lose its status as such merely because it
involves ancillary issues, such as immovable property, or because the State
is involved as a party. It does not, however, restricts the jurisdiction of the
Commercial Courts regarding composite suits that involve both
commercial and non-commercial claims. The explanation provided does
not restrict the jurisdiction of the Commercial Courts by proscribing
composite suits that involve both commercial and non-commercial claims.
Based on the above analysis, we find no merit in the Defendants'
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objections to the jurisdiction of the Commercial Court. The jurisdictional
aspect has been correctly addressed by the learned Single Judge. Thus, we
reject the Defendants' submission that the entire suit should be transferred
to an ordinary civil court.
45. With the jurisdictional issue now settled, we proceed to consider the
subject matter of the dispute and the other issues raised by the parties in
the appeal.
46. The copyright of the Plaintiff in the present appeal is not under
challenge. On the other hand, the Defendants have raised the defence of
"fair dealing" under copyright law.
47. Before delving into the facts of the present case, it is imperative to
first discuss the doctrine of fair dealing under copyright law.
48. The concept of "fair dealing" is not specifically defined in the
Copyright Act. In ordinary course, Indian courts assess fair dealing cases
on a case-to-case basis. Section 52 of the Act provides specific exemptions
that are not to be construed as infringement, the same reads as follows:
(i) private or personal use, including research;
(ii) criticism or review, whether of that work or of any other
work;
(iii) the reporting of current events and current affairs,
including the reporting of a lecture delivered in public."
(emphasis supplied)
49. Thus, it is clear that the fair dealing of a work for criticism or review
is protected under the Act but any reproduction for purposes not
enumerated within the statute would not protected.
50. The fair dealing provisions are also found in the context of
broadcasting rights. Section 39 of the Copyright Act reads as follows:
"Section 39. Acts not infringing broadcast reproduction right or
performer's right: No broadcast reproduction right or performer's right
shall be deemed to be infringed by:
(a) the making of any sound recording or visual recording for
the private use of the person making such recording, or solely
for purposes of bona fide teaching or research; or
b) the use, consistent with fair dealing, of excerpts of a
performance or of a broadcast in the reporting of current events
or for bona fide review, teaching or research; or
(c) such other acts, with any necessary adaptations and
modifications, which do not constitute infringement of copyright
under section 52."
51. In Wiley Eastern Ltd. & Ors. vs. Indian Institute of Management
, this Court observed that the primary purpose of Section 52 is to protect
the freedom of expression guaranteed under Article 19(1)(a) of the
Constitution of India. The relevant observation reads as follows:
12 61 (1996) DLT 281 (DB)
"19. The basic purpose of Section 52 is to protect the freedom of
expression under Article 19(1) of the Constitution of India- so that
research, private study, criticism or review or reporting of current
events could be protected. Section 52 is not intended by Parliament to
negatively prescribe what infringement is.."
52. In ESPN Star Sports v Global Broadcast New Ltd13, this Court,
speaking through Justice S. Ravindra Bhatt (as he then was), held that
while determining whether a 'use' constitutes fair dealing, the Court must
consider the surrounding context, the extent and length of the material
used, and the purpose for which it is used. The Court emphasized that no
universal standard can be applied across all cases, and the enquiry must be
fact-specific, requiring a determination based on the specific
circumstances of each case.
53. In Super Cassettes Industries Limited vs. Mr. Chintamani Rao &
Ors.14, the learned Single Judge of this Court gave the following
observation on the fair dealing doctrine:
"27. Before I proceed to deal with the case law cited by the parties
and examine the position on facts, I think it appropriate to make a few
preliminary observations according to my understanding of the
statutory position on a plain reading of Section 52 of the Act. What
Section 52(1)(a) permits is that the literary, dramatic, musical or
artistic work may be reproduced without fear of infringement of
copyright in such works, if such reproduction is a fair dealing of the
copyright work in question, for the purpose of criticism or review
whether of that work or any other work. Therefore, firstly it has to be
―fair dealing of the work in question. This means that the dealing with
the copyrighted work is not an unfair dealing. Only that part of the
literary, dramatic, musical or artistic work may be utilized for the
13 (2008) 38 PTC 477 (Del)
14 2012 (49) PTC 1 (Del.)
purpose of criticism or review, which is absolutely necessary, and no
more. The purpose - ostensibly or obliquely, should not be to ride piggy
back on the work of another. The focus of attention, and interest of the
producer/author of the work and the viewer/listener should not be the
work of another, but the work created by the person who may, bona fide
be using the work of another for the specific purpose of criticism or
review of that work, or of any other work. The work of another cannot
be used for any other purpose. The copyright protected work of another
cannot be used out of context. There has to be an intellectual input and
an original mental exercise undertaken by the person bona fide lifting
or copying the literary, dramatic, musical or artistic work, which
should involve either the criticism or review of the lifted/copied work,
or of any other work. Copying of the work of another for any other
purpose, such as, to make one's own programme more interesting,
attractive or enjoyable is not permitted. The underlying theme and
focus of; and, in substance, the new work should necessarily be an
exercise to either criticize or review either the bona fide copied work,
or any other work. A person cannot, in the name of ―fair dealing, lift
or copy literary, dramatic, musical or artistic work of another to such
an extent that it ceases to be a ―fair dealing and becomes a blatant act
of copying the work of another".
(emphasis supplied)
54. From the foregoing legal principles and statutory framework, it can
be summarised as follows: (i) Section 52 allows the reproduction of parts
of a copyrighted work without infringement, provided the use is a genuine
"fair dealing" for criticism or review, (ii) The use must not be excessive or
exploitative and should only include the portion of the original work
necessary for the critique or review, (iii) The user cannot "piggyback" on
another's work to attract attention or make their own work more attractive,
(iv) There must be real intellectual input, and the purpose of the use must
genuinely be criticism or review, not simply a disguised act of copying,
(v) If the amount or manner of use exceeds what is necessary for criticism
or review, it ceases to be fair dealing and constitutes infringement.
55. Having understood the doctrine of fair dealing, we now turn to its
applicability in the present case as assessed by the learned Single Judge in
the impugned judgment.
56. The learned Single Judge considered Section 39 and 52 of the Act
and correctly outlined the contours of fair dealing. The relevant
observation of the learned Single Judge is as follows:
"69. It is evident from these decisions that when work that is subject
to copyright or broadcast rights, is used, and a plea of infringement of
those rights is raised in a suit, the defence of ―fair dealing by use of
excerpts is a plausible defence to such a plea. The court would then look
into the validity of the defence raised on parameters, such as, whether
the comments were devoid of malice; they were honestly made; and in
public interest; the reproduction was of short excerpts; there was some
creative input of the copier/reproducer; they constituted criticism and
review, and there was no blatant act of copying. But as observed in
Hubbard (supra), these are all questions of fact and have to be decided
by the Trial Court. One of the pleas urged by the defendants No.1 to 9
is that though they were using excerpts from the programmes of the
plaintiff, they were doing so with an intent to comment and remove bias
from reporting, which was in public interest, and there was
'transformative use‟ inasmuch as the excerpts were superimposed with
the comments by the defendant No.5/Manisha Pandey (Newsance) and
the defendant No.8/Atul Chaurasia (Tippani). This defence raised will
also have to be established on the support of facts that would need to be
proved."
57. The learned Single Judge rightly observed that the test for fair
dealing is fact-intensive, involving considerations such as the honesty and
nature of the comments, the extent of excerpts used, the presence of any
creative or transformative input, and whether the use truly amounted to
criticism or review or whether there was any blatant copying. These are
questions of fact that must be determined by the Commercial Court on the
basis of the evidence adduced.
58. Following the Wander (supra) principle, we are only required to
enquire whether the learned Single Judge erred on principle. Thus, in our
view, the learned Single Judge's findings are consistent with established
legal principles and do not constitute any error in law. The conclusion
reached by the learned Single Judge, that the test for fair dealing involves
fact-intensive inquiries which must be determined at the trial stage, is a
permissible view within the discretion of the learned Single Judge, and we
cannot interfere merely because an alternative view is possible.
59. Therefore, the submissions of Mr. Baruah that there was no
transformation of the content cannot be accepted at this stage, as it would
require a detailed examination of the infringing material. As an appellate
court, we are not in a position to reassess facts and evidence at this stage.
60. Mr. Baruah's contention that the Defendants failed to meet the
threshold for fair dealing may appear convincing, but we find that this
issue requires an independent examination of the material. In these
circumstances, we reiterate that we are bound by the Wander (supra)
principle and cannot engage in the appreciation of facts and evidence at
the present stage.
Commercial Disparagement and Defamation
The parties made detailed oral arguments on the issues of
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commercial disparagement and defamation. We must say that the
discussion, at times became quite intense, given the nature of the
allegations involved.
62. In a nutshell, the Plaintiff's case is that both the parties are active
players in the digital news industry, and the Defendants have made
commercially disparaging comments towards the Plaintiff. In response, the
Defendants argue that they do not target the same consumer base as the
Plaintiff's asserting that they operate in different spheres of journalism.
They also challenged the finding of the learned Single Judge pertaining to
existence of a prima facie case of disparagement and defamation.
63. The learned Single Judge, while examining the content in question,
found that certain statements made by the Defendants were ex-facie
defamatory and disparaging. For example, the use of terms like "shit
standards", "shit playing" "shit reporters", and "shit show" were deemed
to indicate that the programme run by the Plaintiff are of inferior quality.
However, other comments or extracts were interpreted as legitimate
criticism. Consequently, the learned Single Judge concluded that a prima
facie case was made out against the Defendants but also held that the
balance of convenience tilted in the favour of Defendants and no
irreparable injury would be caused to the Plaintiff in the absence of an
interim injunction.
64. Thus, the issue falling for consideration before us is whether the
learned Single Judge was correct in finding a prima facie case of
defamation and disparagement against the Defendants and, if so, whether
the principles of balance of convenience and irreparable injury were
correctly applied to refuse the grant of an injunction.
65. Before delving into the contentions of both parties, it is essential to
first understand the concepts of commercial disparagement and
defamation.
66. Recently, in Dabur India Limited v. Patanjali Ayurved Limited
and Anr.15, the learned Single Judge of this Court discussed commercial
disparagement. The judgment made an interesting observation, which
warrants consideration. The Court noted as follows:
22. In cases such as the present, it is the duty of the Court to
examine whether the impugned advertisement falls under the realm
of puffery, or whether it has transgressed the fine line separating it
from disparagement. Disparagement is nothing but the denigration
and downgrading of a rival product or service in an advertisement by
way of misrepresentation or otherwise, in order to influence the
consumer to prefer the advertiser's product over the competitor's
product. In general parlance, „to disparage‟ Whereas, the legal
definition of disparagement as given in Black‟s Law Dictionary, 8th
Ed. (2004), is as follows:
"xxx xxx xxx
disparagement (di-spair-ij-mǝnt), n. 1. A derogatory comparison of one
thing with another.<the disparagement consisted in comparing the
acknowledged liar to a murderer>. 2. The act or an instance of
castigating or detracting from the reputation of, esp. unfairly or
untruthfully <when she told the press the details of her husband's
philandering, her statements amounted to disparagement>. 3. A false
and injurious statement that discredits or detracts from the reputation
of another's property, product, or business. • To recover in tort for
disparagement, the plaintiff must prove that the statement caused a third
15 2025: DHC:5232
party to take some action resulting in specific pecuniary loss to the
plaintiff. -- Also termed injurious falsehood. -- More narrowly termed
slander of title; trade libel; slander of goods. See TRADE
DISPARAGEMENT. Cf. commercial defamation under
DEFAMATION. [Cases: Libel and Slander - 130, 133. C.J.S. Libel and
Slander; Injurious Falsehood §§ 204-206, 209.] 4. Reproach, disgrace,
or indignity <self-importance is a disparagement of greatness>. 5. Hist.
The act or an instance of pairing an heir in marriage with someone of
an interior social rank <the guardian's arranging for the heir's
marriage to a chimney sweep amounted to disparagement>. --
disparage, vb.
xxx xxx xxx"
(Emphasis Supplied)
23. Thus, any attempt of an advertiser to portray a rival's goods or
service in a negative light, by either making false statements or using
ambiguous or deceptive visual and audio aids, will constitute
disparagement. Negative insinuation campaigns in the name of
advertising are impermissible as they go against the best interest of the
public at large. In case of disparagement, a number of factors,
including, the intent, manner, storyline, mode, use of celebrities as
endorsers, etc., have to be looked into, in order to determine the
capacity and degree of deception. Advertisements cannot urge people
not to buy a certain product as the same constitutes disparagement.
Therefore, any representation by an advertiser which contravenes the
requirements of professional diligence and is likely to materially distort
economic behaviour of the average consumer with regard to the product
is disparagement.
24. Furthermore, the nature of goods and services also affects the
degree of hyperbole which can be employed by advertisers. For
example, in case of a toilet cleaner or a liquid handwash, the degree of
falsity in puffery would be higher in comparison to what shall be
tolerable when marketing a medicine or a drug. The threshold at which
Courts analyze misrepresentation in commercial practice has to be
much higher and stricter when the product being advertised is capable
of having a detrimental impact on the health of the consumer.
67. Additionally, the learned Single Judge of this Court in Zydus
Wellness products Ltd vs Mr. Prashant Desai16 further elaborated on the
concept of disparagement, the same is reproduced below:
16 2024:DHC:7432
"55. Though the term 'disparagement' has not been defined in any
Statute but it has since evolved by judicial interpretation from time to
time since the evolution of changing times. As per the Black's Law
Dictionary the term 'disparagement' is defined as "A false and
injurious statement that discredits or detracts from the reputation of
another's property, products or business." Similarly, as per Chambers
21st Century Dictionary the same term "disparagement' is defined as
"to speak of someone or something with contempt."
56. In essence, the term 'disparagement' means speaking, which
includes reading, hearing and seeing, something in a negative vein.
This, sometimes can include even what is not spoken in a bad/ unkind/
sublime/ impolite/ sarcastic/ cryptic manner which are/ can be false,
incorrect, untrue, wrong, unmeaningful, unfounded, inexact, slander or
so like as also damaging, harmful, injurious, disfiguring, malicious or
so like. Though the basic contours for act(s) of disparagement are cut
out but that there is disparagement or not and the scope of comparison
thereof all depend upon the facts and circumstances involved in each
individual case(s)."
68. The Division Bench of this Court in the decision of Reckitt
Benckiser (India) Pvt Ltd. vs. Gillete India Ltd17, laid out three core
principles to assess disparagement. The relevant observation reads as
follow:
"45. From a conspectus of the decisions rendered by English Courts,
three underlying principles can safely be deduced :
(i) The impugned statement/representation must specifically denigrate
the product of the claimant in order to be actionable;
(ii) The representation shall not be actionable unless it is likely to be
taken seriously;
(iii) General praise of one's product/goods would not be actionable."
69. The three principles outlined in Reckitt Benckiser (supra) can be
summarized thus: Firstly, the statement must specifically denigrate the
claimant's product; Secondly, the representation must be likely to mislead
17 2016 SCC OnLine Del 4737
or confuse a reasonable consumer; and Thirdly, merely praising one's own
product is not actionable unless it constitutes a false comparison to a rival
product. These guidelines are crucial in determining whether a statement
constitutes disparagement or is merely a comparison allowed under the
law.
70. In the context of comparative advertising, it has been further
clarified in Reckitt Benckiser (supra) that while puffery is permissible, the
direct disparagement of a rival product is not. The Court laid down several
guidelines including:
"55. A cumulative assessment of the case laws of the subject leads to
the only inescapable conclusion that puffery is permissible but
disparaging a rival product is not. One of the guidelines to be followed
has been provided in Pepsi Co. (Supra) wherein it was held as
hereunder:
"(1) The intent of the advertisement--this can be understood
from its story line and the message sought to be conveyed.
(2) The overall effect of the advertisement--does it promote the
advertiser's product or does it disparage or denigrate a rival
product? In this context it must be kept in mind that while
promoting its product, the advertiser may, while comparing it
with a rival or a competing product, make an unfavourable
comparison but that might not necessarily affect the story line
and message of the advertised product or have that as its overall
effect.
(3) The manner of advertising--is the comparison by and large
truthful or does it falsely denigrate or disparage a rival
product? While truthful disparagement is permissible,
untruthful disparagement is not permissible."
71. On defamation, the Supreme Court, in the decision of Bloomberg
Television Production Services India (P) Ltd. v. Zee Entertainment
Enterprises Ltd18, outlined the tests for granting interim injunctions in
defamation cases, the same reads as:
"5. In addition to this oft-repeated test, there are also additional
factors, which must weigh with courts while granting an ex parte ad
interim injunction. Some of these factors were elucidated by a three-
Judge Bench of this Court in Morgan Stanley Mutual Fund v. Kartick
Das [Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225:
(1994) 81 Comp Cas 318], in the following terms: (SCC pp. 241-42,
para 36)
"36. As a principle, ex parte injunction could be granted only
under exceptional circumstances. The factors which should
weigh with the court in the grant of ex parte injunction are--
(a) whether irreparable or serious mischief will ensue to
the plaintiff;
(b) whether the refusal of ex parte injunction would
involve greater injustice than the grant of it would
involve;
(c) the court will also consider the time at which the
plaintiff first had notice of the act complained so that the
making of improper order against a party in his absence
is prevented;
(d) the court will consider whether the plaintiff had
acquiesced for some time and in such circumstances it
will not grant ex parte injunction;
(e) the court would expect a party applying for ex parte
injunction to show utmost good faith in making the
application.
(f) even if granted, the ex parte injunction would be for
a limited period of time.
(g) General principles like prima facie case, balance of
convenience and irreparable loss would also be
considered by the court."
6. Significantly, in suits concerning defamation by media platforms
and/or journalists, an additional consideration of balancing the
fundamental right to free speech with the right to reputation and privacy
must be borne in mind [R. Rajagopal v. State of T.N., (1994) 6 SCC
632]. The constitutional mandate of protecting journalistic expression
cannot be understated, and courts must tread cautiously while granting
pre-trial interim injunctions. The standard to be followed may be
2024 SCC OnLine SC 426
borrowed from the decision in Bonnard v. Perryman [Bonnard v.
Perryman, (1891) 2 Ch 269 (CA)]. This standard, christened the
"Bonnard standard", laid down by the Court of Appeal (England and
Wales), has acquired the status of a common law principle for the grant
of interim injunctions in defamation suits [Holley v. Smyth, 1998 QB
726 (CA)]. The Court of Appeal in Bonnard [Bonnard v. Perryman,
(1891) 2 Ch 269 (CA)] held as follows: (Ch p. 284)
"... But it is obvious that the subject-matter of an action for
defamation is so special as to require exceptional caution in
exercising the jurisdiction to interfere by injunction before the
trial of an action to prevent an anticipated wrong. The right of
free speech is one which it is for the public interest that
individuals should possess, and, indeed, that they should
exercise without impediment, so long as no wrongful act is done;
and, unless an alleged libel is untrue, there is no wrong
committed; but, on the contrary, often a very wholesome act is
performed in the publication and repetition of an alleged libel.
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 the granting of
interim injunctions."
7. In Fraser v. Evans [Fraser v. Evans, (1969) 1 QB 349: (1968) 3
WLR 1172 (CA)], the Court of Appeal followed the Bonnard principle
and held as follows: (QB p. 360)
"... insofar as the article will be defamatory of Mr. Fraser, it is
clear he cannot get an injunction. The Court will not restrain
the publication of an article, even though it is defamatory, when
the defendant says he intends to justify it or to make fair
comment on a matter of public interest. That has been
established for many years ever since (Bonnard v. Perryman
[Bonnard v. Perryman, (1891) 2 Ch 269 (CA)]). The reason
sometimes given is that the defences of justification and fair
comment are for the jury, which is the constitutional tribunal,
and not for a Judge. But a better reason is the importance in the
public interest that the truth should out. ..."
72. Having understood the principles governing commercial
disparagement and defamation, we now turn to the facts of the present
case.
73. The learned Single Judge's approach to defamation and commercial
disparagement appears to be sound. The judgment recognizes the need to
assess whether the statements made by the Defendants were harmful or
untruthful and whether the Plaintiff suffered irreparable harm. The Court's
application of the Bonnard standard and other relevant principles
demonstrates a cautious approach whilst determining interim relief in a
defamation case, given the importance of safeguarding freedom of speech
and expression.
74. Further, the learned Single Judge found that the statements such as
"shit standards", "shit playing" "shit reporters", and "shit show" were ex-
facie defamatory and disparaging. We agree with the learned Single
Judge's findings in this regard.
75. According to us, in the present case, both the Plaintiff and
Defendants are media companies, and both operate in the electronic media.
Consequently, we do not agree with the Defendants' contention that the
two are not direct competitors.
76. We note that despite their differing business models, the content
produced by both parties is available on overlapping platforms and both
are engaged in producing similar content, i.e., news and target a coinciding
consumer base. Further, in today's digital media landscape, access to
content is no longer limited by geographic boundaries or platform
restrictions. Today's consumers can discover and consume a wide array of
media instantly, often with just a swipe. Platforms frequently serve
multiple types of content, and algorithms push users across various genres
and formats. In this context, the argument that the Defendants' customer
base is vastly different from the Plaintiff's due to the differing revenue
models, lacks credibility.
77. Additionally, while it is true that the Defendants' revenue model is
subscription-based and the Plaintiff's revenue model is advertisement
driven, we find that this distinction cannot absolve the Defendants from
targeting the Plaintiff's consumers. The revenue model does not alter the
fact that both parties produce similar content and can influence the same
audience, regardless of their business model. Therefore, it is safe to
conclude that the Plaintiff and Defendants are indeed competitors in the
media space.
78. The malicious intent of the Defendants is evident from their
repeated targeting of the Plaintiff and their journalists and making
disparaging comments about them. The Defendants not only criticized the
Plaintiff's work, but also commented negatively on the death of one of the
Plaintiff's anchors. Such conduct demonstrates a clear intent to harm the
Plaintiff's reputation and falls far beyond the realm of legitimate criticism.
The statements made were not backed by any independent standards or
justifications. Terms such as "shit standards" and "shit reporters" clearly
go beyond the realm of criticism or review and are defamatory and
disparaging and therefore, intended to demean the Plaintiff's reputation.
79. We are conscious that the Defendants have raised the defence of
justification and fair dealing. However, we are of the view that an interim
injunction cannot be refused merely because these defences have been
pleaded. If such a defence were allowed to defeat injunctive relief at the
interim stage, any defendant could evade injunctions simply by raising the
defence of justification or fair dealing. Therefore, we are convinced that
the ingredients of commercial disparagement and defamation have been
met in this case.
80. We shall now turn to the Defendants' contentions advanced before
this Court.
81. The Defendants have argued that their main objective was to
provide informative and socially beneficial content, and that there was no
malicious intent behind their statements. However, we cannot accept this
defence. Statements such as "shit playing", "shit reporters", "shit show",
"high on weed or opium", and "your punctuation is as bad as your
journalism" clearly do not qualify as socially beneficial content. These
remarks, rather than contributing to public discourse, serve to disparage
and insult the Plaintiff and its journalists.
82. The Defendants have self-awarded the title of the "highest standard
of journalism" and claim to be protectors of public interest. This self-
entitlement cannot serve as a blanket justification for disparaging remarks.
The tone of the statements made by the Defendants appears to be one of
intolerance rather than constructive criticism. In the name of being
"correct" and "independent", the Defendants have, at times, replaced
substantive debate with shaming, which does not benefit public discourse
or social dialogue.
83. Thus, we find no convincing justification for the statements made
by the Defendants. There is no legitimate defence for calling the Plaintiff's
work "shit" or making derogatory remarks about its journalists. Such
statements, in our view, cannot be protected under the guise of fair dealing
or legitimate criticism. Thus, Defendants' conduct appears to be an
unprovoked attack on the Plaintiff's reputation rather than a critique aimed
at improving public discourse.
84. In light of the above observations, we find that the principles of
disparagement and defamation, as discussed, have clearly met. We do not
find any ground of interfere with the finding of the learned Single Judge.
The Plaintiff has established a prima facie case of defamation and
disparagement, and the conduct of the Defendants, based on the facts
available, clearly warrants further examination at the trial stage.
85. We now turn to examine whether the learned Single Judge, despite
finding that a prima facie case was made out, was correct in applying the
principles of balance of convenience and irreparable harm to refuse an
injunction.
86. The learned Single Judge observed that the issues raised by the
Plaintiff involved complex questions relating to copyright infringement,
fair dealing for criticism or comment and defamation. The Court noted that
determining whether the Defendants' use of excerpts from the Plaintiff's
videos constituted infringement or fell within the scope of fair dealing
required a detailed examination of material. Thus, the learned Single Judge
held that it could only be determined at trial whether the statements made
were malicious and defamatory or amounted to honest criticism, satire, or
fair comment and hence considered it inappropriate to restrict the
Defendants' publication at the interim stage.
87. In our view, the learned Single Judge did not correctly apply the
principle of balance of convenience. It is well settled that when applying
the principle of balance of convenience, the Court must weigh one party's
need against the other and then determine which side's convenience
prevails. However, in the present case, instead of weighing the
convenience, the learned Single Judge seemed to base its decision on the
merits of the case.
88. The learned Judge reasoned that the defence raised by the
Defendants, which relied on facts and the examination of material, would
require trial. In our view, this reasoning is not appropriate when applying
the balance of convenience test. The mere fact that the Defendants have
pleaded fair dealing or justification should not be a reason to deny interim
relief, as any defendant could evade injunctive relief simply by raising
such a defence. After making a prima facie finding as to the nature of the
statements, the learned Single Judge should not have later concluded that
the balance of convenience would favour the Defendants simply because
the material required substantive examination.
89. The learned Single Judge's reasoning becomes even more complex
when it comes to commercial disparagement. The primary purpose of
commercial disparagement is to protect goodwill and commercial
reputation from ongoing market-facing denigration. In our opinion, while
weighing the Plaintiff's need against the Defendants', the balance of
convenience would certainly tilt in favour of the Plaintiff. The Plaintiff's
reputation and commercial standing would be at risk, while the Defendants
would not face any disproportionate harm by taking down the offending
content or remarks, especially at the interim stage.
90. With regards to irreparable harm and injury, the learned Single
Judge held that since the Plaintiff has quantified damages, no irreparable
injury would be caused. However, this approach is not in line with
established legal principles concerning irreparable harm.
91. To address this, we refer to the decision of the apex Court in Dalpat
Kumar and Anr. v. Prahlad Singh and Ors.19, where the Court observed:
"5. Therefore, the burden is on the plaintiff by evidence aliunde by
affidavit or otherwise that there is "a prima facie case" in his favour
which needs adjudication at the trial. The existence of the prima facie
right and infraction of the enjoyment of his property or the right is a
condition for the grant of temporary injunction. Prima facie case is not
to be confused with prima facie title which has to be established, on
evidence at the trial. Only prima facie case is a substantial question
raised, bona fide, which needs investigation and a decision on merits.
Satisfaction that there is a prima facie case by itself is not sufficient to
grant injunction. The Court further has to satisfy that non-interference
by the Court would result in "irreparable injury" to the party seeking
relief and that there is no other remedy available to the party except one
19 1992 1 SCC 719
to grant injunction and he needs protection from the consequences of
apprehended injury or dispossession. Irreparable injury, however,
does not mean that there must be no physical possibility of repairing
the injury, but means only that the injury must be a material one,
namely one that cannot be adequately compensated by way of
damages. The third condition also is that "the balance of convenience"
must be in favour of granting injunction. The Court while granting or
refusing to grant injunction should exercise sound judicial discretion to
find the amount of substantial mischief or injury which is likely to be
caused to the parties, if the injunction is refused and compare it with
that it is likely to be caused to the other side if the injunction is granted.
If on weighing competing possibilities or probabilities of likelihood of
injury and if the Court considers that pending the suit, the subject-
matter should be maintained in status quo, an injunction would be
issued. Thus the Court has to exercise its sound judicial discretion in
granting or refusing the relief of ad interim injunction pending the suit.
The Court further noted that when determining whether to grant an
interim injunction, the court must assess whether non-interference
would result in irreparable harm, and whether there is no other remedy
available to the Plaintiff except for an injunction."
(emphasis supplied)
92. The learned Single Judge appears to have mistakenly treated the
presence of quantified damages as equivalent to the absence of irreparable
injury. This is a misapplication of the principles governing interim
injunctions. Irreparable harm is not defined by the ability to plead damages
in an abstract sense, but by whether the injury caused cannot be sufficiently
compensated be damages. The learned Single Judge's failure to recognize
this distinction leads to an incorrect application of the "triple test" while
granting interim injunctions.
93. Thus, in our view, a prima facie is made out in the Plaintiff's favour,
only with respect to the defamatory and disparaging statements or remarks
made by the Defendants, such as "shit playing", "shit reporters", "shit
show", "high on weed or opium", and "Your punctuation is as bad as your
journalism". Given the serious nature of these statements and their
potential to cause lasting harm to the Plaintiff's reputation, we find that the
balance of convenience tilts in favour of the Plaintiff. Irreparable harm is
likely to result if these statements are not taken down.
94. Therefore, the learned Single Judge's findings on the balance of
convenience and irreparable injury are not in line with the established legal
principles and are hereby set aside. The Plaintiff has made out a prima
facie case, and the balance of convenience and potential for irreparable
harm clearly favour granting interim relief in this matter.
CONCLUSIONS
95. We are in agreement with the learned Single Judge's finding that a
prima facie case of commercial disparagement has been made out. The
statements identified in the impugned order and judgment are clearly
without any independent standard and/or basis, and therefore, constitute
disparagement under the applicable legal principles.
96. Furthermore, it is evident that if these statements are not removed
and continue to remain accessible, they will cause serious and irreparable
harm and prejudice to the Plaintiff. Such harm cannot be adequately
compensated by monetary relief or any other remedy available, and hence,
interim protection is warranted.
The balance of convenience also lies in favour of the Plaintiff and
Signing Date:20.03.2026
13:07:27
against the Defendants. Both parties operate in the same media industry,
with the Defendants having substantial user base. Any refusal of protection
at this stage would cause greater prejudice to the Plaintiff, while granting
the relief sought would not cause comparable hardship to the Defendants.
98. For the reasons recorded hereinabove, we partly allow the appeal to
the limited extent that the statements or remarks identified by the learned
Single Judge as constituting commercial disparagement should be
removed. The statements are ex-facie disparaging, and their continued
availability online would harm the Plaintiff's reputation.
99. The Respondents are directed to immediately remove the remarks
or statements "shit reporters", "shit show", "high on weed or opium", and
"Your punctuation is as bad as your journalism" from the impugned video
and remove them from their respective social media platforms, handles,
and websites until the final disposal of the underlying suit.
100. It is clarified that the present order is passed at an interlocutory
stage. Therefore, the observations made herein, particularly those
regarding the factual aspects and any tentative findings, shall not prejudice
or bind the Trial Court in its adjudication of the issues on merits, after the
full appreciation of evidence.
101. The Trial Court is free to come to its own conclusions, even if those
conclusions differ from the observations contained in this order. This order
is made without prejudice to the Trial Court's independent analysis of the
case.
102. The present appeals, along with pending applications, if any, stand
disposed of in the aforesaid terms. There shall be no order as to costs.
OM PRAKASH SHUKLA, J.
C.HARI SHANKAR, J.
MARCH 20, 2026/gunn/at
