In a landmark judgement, on 26th April, 2019, Justice Gautam Patel struck down an injuction request by Lodha Group against Mr Krishnaraj Rao. This ruling was made in an ongoing defamation lawsuit filed by Lodha Group.
It all started with a viral video of a man punching a wall which resulted in the cracking of it. The clip was uploaded by Krishnaraj Rao an activist and friend of home owner, Shilpi Thard. Ms Thard had been actively uploading videos with her friend to show the low quality of her home at New Cuffe Parade, established in Wadala’s Lodha Group complex. Lodha had then filed a defamation suit on Jan. 17, 2019 accusing Ms Thard as being a “blackmailer and an extortionist”.
In the subsequent hearings, Lodha made an allegation of malice, stating that “Mr Rao is a busybody who habitually publishes negative articles and videos against select developers and then hints at blackmail.” The basis of their case was that Mr Rao and Ms Thard published material that is defamatory, false and untrue. They maintained that there is nothing wrong with the flats purchased by the defendant and that Lodha has fully complied with any rectification work, which in itself was minor and not that unusual. Therefore, they claimed to be “the aggrieved innocent victims of a smear campaign and the published material is the handiwork of extortionists whose demands have not been met.”
Lodha had sought interim relief in the case by asking the court for an injunction against Mr Rao on the basis of 5 particular statements that he had made. The presiding judge Justice Gautam Patel, individually considered each of the statements and the arguments presented by both parties.
The first of these statements - “The suit-booted residents of Lodha NCP have been conned into living on a construction site, and MMRDA officials who issued the certificate, are in connivance. It’s an open secret hiding in plaint sight. It’s the proverbial elephant in the room” - was not granted an injunction by the judge. “It seems to me clear that this statement does not fall within that definition. It is undoubtedly comment. Some say it is aggressively worded, but that is possibly the worst that can be said about it,” said Justice Patel.
This is the second statement presented by Lodha for injunction - “It is a large plot of land which had been leased from MMRDA which has been originally intended for infrastructure, very honestly there has been a lot of ‘golmaal’ in the way they have acquired the plot, in the was MMRDA has leased them the plot…” After discussion, Mr Rao confirmed to the court that he had sources to establish the correctness of his statement and agreed that presented without facts the statement could be problematic. He therefore agreed that he would not repeat the statement without the necessary factual basis.
The third statement sought for an injunction by Lodha alleges that the building has been constructed “…without following rules and norms, National Building Code and DC regulations”. In his argument, Mr Rao stated that a previous architect’s report had pointed out specific violations, but Justice Patel affirmed that it does not which violations. Nevertheless, Lodha had questioned the accuracy and correctness of the report and Justice Patel in turn ruled that it is difficult to consider that “the statement is per se defamatory, it will have to await trial”.
The fourth statement is an extract from a video, where Mr Rao is accused of saying without justification that banks are also involved with Lodha regarding the manner in which loans are passed. He alleges that Lodha dictates terms to the banks and that it us a large customer that banks cannot refuse. The context of this statement reveals that it has nothing at all to do with mere financing or even the level of influence or money muscle, but to an allegation Mr Rao makes that the entire financing structure is based on an incorrect statement of the actual carpet area of the flat being sold. After hearing the arguments of both parties, the judge ruled, “On a objective assessment, I find that what Rao has said here is in an opinion, fair comment or argument with some basis in fact. There is no question of an injunction or even of asking if he will volunteer a statement. The statement is not, prima facie, per se defamatory.”
In the fifth and final statement sought for an injuction by Lodha, Mr Rao alleges that “the basement of the entire complex does not have an occupation certificate. The fire brigade and MMRDA have not inspected it and it cannot be certified as it stands.” He further alleges that with permissions for three basements, four were constructed and that the clearance or head space is inadequate for proper air circulation and ventilation. After hearing Mr Rao explain his statement, Justice Patel was satisfied that this statement also could not be considered defamatory since, Mr Rao “is able to demonstrate prima facie that such a state of affairs exists. He maintains that this was based first on material that he himself saw. There is contemporaneous documentation that he asserts in justification of what he says in this context.”
Judge Patel concluded saying, “The plaint suggests that nothing that was stated in this material was true, and almost the wholeof it was defamatory; what was true was trivial and was in the nature of routine rectification. Prima facie that does not appear to be so, and Lodha must be held to have failed to make out a prima facie case even on these five statements to which Lodha has now limited its injunction application.”
The court also went on to address the issue of YouTube and social media, since Mr Rao’s form of journalism is not in the more traditional form of print. Justice Patel smartly questioned, “what of that? Does it make the slightest difference? There is no different standard of law that applies to online journalism or comment.” He explained that if a statement knowing it to be false, or in reckless disregard of the truth, the medium in which is made is entirely irrelevant. He went on to make an important distinction that, “A statement is not to be viewed as suspicious only because it is not made in print and is made only online, or using one or more of the available modern communications channels or technologies.”
Although there is proliferation of fake news online, it does not necessarily mean that everything about the technology is evil or undesirable. Justice Patel further added that “a statement is not true merely because it is in print. It is not false merely because it is online. The only difference is that online media allows for plurality of voices. Online, everyone is a journalist, or a potential journalist.”
He affirmed once again that, “Calling out someone, with fair comment and justification, is not defamation. To put it differently: to say the emperor has no clothes is not defamation. It never has been.” Therefore, he also stated that he would not be making an order of take-down against YouTube.