Netflix’s Bad Boy Billionaires: Freedom Of Speech Vs Trial By Media
“The investigative docuseries explores the greed, fraud and corruption that built up—and ultimately brought down—India’ most infamous tycoons.” That’s how streaming service Netflix describes ‘Bad Boys Billionaires’, which revolves around the life of Nirav Modi, Subrata Roy, Ramalinga Raju and Vijay Mallya.
The description of the series and its trailer was enough for courts in Bihar and Hyderabad to direct a stay on the Sept. 3 release. Subrata Roy’s Sahara group and Ramalinga Raju approached the court claiming that the release will prejudice the pending court cases and were granted a temporary injunction in their favour.
The interim orders in both cases discuss the question of freedom of speech versus an individual’s right to protect his reputation. Experts are divided on the approach courts must take while answering this.
Senior Advocate Chander Uday Singh said there should not be injunctions against publication or broadcasts in regular civil and commercial cases, where the persons aggrieved can be compensated in monetary damages. But according to DSK Legal’s Anand Desai, the right to a fair trial is sacrosanct and that the courts can examine cases where a movie of this nature can prejudice the fairness of the trial.
My Reputation Will Be Tarnished: Subrata Roy
In Bihar, an employee of the Sahara group approached the court challenging the characterization of Subrata Roy in the series. The plea against the series argued that it demeans Roy’s character without any facts or findings by any court to back the claims.
‘’There is nothing to say that the plaintiffs have been brought down, for any acts of greed, fraud or corruption. Use of such words by the defendants, in their commercial programs are per se defamatory and highly uncalled for,’’ said the plea in the Bihar court.
The court agreed and found a prima facie case to grant an injunction. The court noted in its order that it appears the documentary is going to show that growth of Roy was fueled by fraud, greed and corruption. And so, it granted a temporary injunction on the movie’s release saying the film can result in maligning the reputation of Roy.
Netflix chose to contest this order before the Supreme Court. The company argued that its voice has been muffled by the injunction order on the eve of the release of the film. The Araria court in Bihar, it said, passed an order without even watching the trailer as the order does not record this fact. The docuseries is based on facts, information and snippets which are available in the public domain and are public knowledge, the company told the Supreme Court.
But the apex court declined to entertain the plea and allowed Netflix to approach the Patna High Court for relief. Netflix has now filed an appeal in the high court, which has allowed its request for an out of turn listing of the case.
Documentary Amounts to Media Trial: Ramalinga Raju
In Hyderabad, former Satyam chief Ramalinga Raju questioned his portrayal on grounds that the cases against him are sub judice and therefore the documentary is nothing but an attempt to pass a judgement in his cases by usurping the role of the judiciary.
Raju told the court that as per established legal principles, he is innocent until a court of law comes to a decision in cases against him. The release of the documentary (going by its description and the trailer) will be a violation of this principle and result in incurable loss of reputation, Raju argued.
In 2015, a special court in Hyderabad had found Raju guilty in case involving his term at Satyam Computers and sentenced him to seven years in jail along with fine. Raju is exercising his right of appeal and is defending himself in the sessions court in the case.
The Hyderabad court found merit in Raju’s arguments and directed that the movie release be put on hold.
Considering the fact that the cases are pending against the petitioner before the competent courts in which the very issue—whether the petitioner had committed any fraud financial or otherwise is sub judice—this court observes that petitioner has got a prima facie case in his favour, the Hyderabad court said in its order.
Freedom Of Speech Vs Reputation
The interim orders in both the cases delved into the issue of balancing freedom of speech versus protecting the reputation of individuals. While there have been cases seeking to stop the release of films frequently, Indian courts have chosen to exercise their powers sparingly.
Singh said courts must use their power to grant injunctions against release, broadcast in very rare cases.
My own view is the traditional one that barring in very very rare cases, there should never be injunctions against publication, dissemination, broadcasts or exhibition. The very rare cases would pertain to things like virulent hate speech capable of causing riots, child porn, incitement to commit heinous crimes, genocidal incitement and the like.Chander Uday Singh, Senior Advocate
Desai, however, said these are not matters for the media to conclude on, or cause their viewers to conclude on. In such cases, courts look at whether the media creates an impression or effect that may result in a real and substantial risk of prejudice to the fairness of the trial of proper administration of justice, he said.
This will include instances of conjectures or surmises and suggesting these are facts, and amount to crimes. In India, the question of guilt is determined in a court of law, and the prosecution must prove the crime in court. What the media puts out to the public as facts that amount to a crime may not be facts, or amount to a crime.Anand Desai, Managing Partner, DSK Legal
Sameer Jain, founder and managing partner at PSL Advocates and Solicitors, agreed. “After having watched the trailer of the show, it is apparent that the subjects of each episode have been portrayed as guilty, even while the trial is on. The interviewees have declared them as frauds and cheats, which goes against the sacrosanct legal principal of innocent until proven guilty,” he said.
While pre-censorship is granted by courts in exceptional cases, it appears, prima facie, that the show passes the threshold of granting an injunction, Jain said.