Media Law Cases

05/01/2023 (c) 2015 MD HAROON RASHEED, ADVOCATE 1

Case-Law PresentationMedia Law

By,MOHAMMED HAROON RASHEED

B.A.LL.B (Hons.), [BSW] & [LLM]Advocate

Email ID: [email protected]


Odyssey Communications Pvt. Ltd. v.

Lokvidayan Sanghatana and Ors.

Citation: AIR 1988 SC 1642; MANU/SC/0350/1988


Extra Information Hon'ble Judges/Coram:

Justice E.S. Venkataramiah and Justice N.D. Ojha

Counsels:

For Appellant/Petitioner/Plaintiff: K.K. Venugopal, A. N. Haksar, S. Vazifdar, Raian

Karanjawala, Manik Karanjawala and Hardeep S. Anand, Advs

For Respondents/Defendant: B. Datta, Additional Solicitor General, P. Parmeshwaran,

S.C. Birla and A. Subhashini, Advs.


Background of the case

PIL By Lokvidayan Sanghatana & Mahila Sangharsha Samiti (NGO’s) In Bombay HC

Controversial Episodes:

12 & 13

Not to telecast

Reason: Public Interest Telecasted by Doordarshan on every Thursday between 9:00pm-9:30pm


Facts Writ Petition in form of a PIL in Bombay High

Court; Against (1) Union of India, (2) Ministry of

Information and Broadcasting, Parliament House, New Delhi and (3) State of Maharashtra

Not to telecast episode 12 & 13 in public interest;

Bombay High Court Orders in favor of the NGO’s and issued an INTERIM ORDER OF INJUNCTION.

Aurangabad Bench of Bombay High Court’s order dated 13th April 1988.

SLP U/a 136 filed by the producer of the serial; Obtained a stay order on the order of the Bombay High Court as interim relief.


Issues/Questions Presented Contention 1:

The Bombay High Court erred in issuing an order of injunction?

Contention 2:

The right to exhibit films on Doordarshan subject to 19(2) included in freedom of speech and expression


Analysis of Law Obiter: “The right is similar to the right of a citizen to publish

his views through any other media such as newspapers, magazines, advertisement hoardings etc. subject to the terms and conditions of the owners of the media. We hasten to add that what we have observed here does not mean that a citizen has a fundamental light to establish a private broadcasting station, or television center. On this question we reserve our opinion. It has to be decided in an appropriate case.” – para 5

Part of Ratio Decedendi –“Freedom of expression is a preferred right which is

always very zealously guarded by this Court.” – para 6


Analysis (Cont’d) “Honi Anhoni” Not in contravention of any specific law or

direction issued by the Government; & there was no assertion of any specific right as such conferred upon them via any statue or contract;

No undue favor shown by Doordarshan which would disturb the public excheaquer or cause such financial loss;

The objection to the exhibition of the film had, however, been raised by them on the basis that it was likely to spread false or blind beliefs amongst the members of the public.

The Union of India and the Doordarshan have pleaded that the serial was being telecast after following the prescribed procedure and taking necessary precaution.

In such a situation, the High Court should not have immediately proceeded to pass the interim order of injunction. ~ para 7


Analysis (Cont’d) The High Court overlooked that the issue of an order of

interim injunction in this case would INFRINGE A FUNDAMENTAL RIGHT OF THE PRODUCER of the serial.

IN THE ABSENCE OF ANY PRIMA FACIE EVIDENCE of grave prejudice that was likely to be caused to the public generally by the exhibition of the serial it was not just and proper to issue an order of temporary injunction.

Supreme Court was not satisfied that the exhibition of the serial in question was likely to ENDANGER PUBLIC MORALITY. In such circumstances of the case the balance of convenience lay in favour of the Appellant.


Judgment/Order The High Court overlooked that the issue of an

order of interim injunction in this case would infringe a fundamental right of the producer of the serial.

The other questions of law which may arise in a case of this nature will have to be dealt with in an appropriate case. We express no opinion on those questions in this case.

We are, however, of the opinion that the High Court was in error in the present case in issuing the interim order of injunction against which this appeal is filed. We, therefore, allow this appeal and set aside the interim order of injunction passed by the High Court on the 13th of April, 1988. ~ para 7


Tata Press Ltd. v.

Mahanagar Telephone Nigam Limited & Ors.

Citation: AIR 1995 SC 2438; MANU/SC/0745/1995

Hon'ble Judges/Coram:

Justice(s) Kuldip Singh, B.L. Hansaria and H.B. Majumdar


Background of the Case

MTNL & UOI filed a Civil Suit at the Bombay City Civil Court for declaration;

That they alone have the right to print/publish the list of telephone subscribers;

Further declaration was sought against TATA PRESS YELLOW PAGES in form of a permanent injunction;

On 7th August 1993 suit was dismissed;


Background & Facts

First Appeal by MTNL & UOI heard by a single judge of the Bombay High Court which was allowed and order was set aside on April 27th 1994;

A letters patent appeal was filed by the TATAS but dismissed by a DIVISION BENCH on 8th December 1994;

Now, A SLP U/a 136 against the judgment of the judgment of the DIVISION BENCH;


Issue/Questions Presented Whether 'commercial

advertisement' comes within concept of freedom of speech and expression guaranteed under Article 19 (1) (a) ?

Whether commercial speech is fundamental right under Article 19 (1) (a)?


Analysis of Law

(~para 4) Law involved: Article 19 Rules – 452, 433, 437, 457, 458, 459Relevant-452 (Supply of Telephone Directories)457 (General- No liability on omission)458 (Publishing of the telephone

directory) [permission by telecom authority]

459 (Advertisements)


Analysis of Law (Cont’d) (~para 5) Views and reasons of learned trial judge:-Tata Pages was compilation of advertisements

given by businessmen, traders and professionals and NOT TELEPHONE SUBSCRIBERS

(as per Rule 458)

(~para 6) Views and reasons of learned single judge: HC

-Distinction between white pages & yellow pages listing; (therefore not complying with Rule 458) but against TATA;


Analysis (Cont’d) (~para 7) Views & reasons of DIVISION

BENCH-there has been a contravention into the

rules of the telecom department

Does Article 19 (1) (a) include “commercial advertisement” and “commercial speech”?

~SC Used Hamdard Dawakhana 1960 + U.S. Supreme Court Decision in Virgina’s Case 1976


Analysis (Cont’d)

The combined reading of Hamdard Dawakhana's case MANU/SC/0016/1959 : 1960CriLJ671 and the Indian Express Newspaper's case MANU/SC/0406/1984 : [1986]159ITR856(SC) leads us to the conclusion that "COMMERCIAL SPEECH" cannot be denied the protection of Article 19(1)(a) of the Constitution merely because the same are issued by businessmen.


Analysis (Cont’d) Obiter:“Advertising is considered to be the cornerstone of our economic system. Low

prices for consumers are dependent upon mass production, mass production is dependent upon volume sates, and volume sates are dependent upon advertising. Apart from the lifeline of the free economy in a democratic country, advertising can be viewed as the life blood of free media, paying of the costs and thus making the media widely available . The newspaper industry obtains 60/80% of its revenue from advertising. Advertising pays large portion of the costs of supplying the public with newspaper. For a democratic press the advertising "subsidy is crucial. Without advertising, the resources available for expenditure on the "news" would decline, which may lead to an erosion of quality and quantity. The cost of the "news" to the public would increase, thereby restricting its "democratic" availability.” (~para 19)

Ratio:"commercial speech" is a part of the freedom of speech and expression

guaranteed under Article 19(1)(a) of the Constitution. ~para 24And publication of advertisements= “Commercial Speech”


Judgment/ Order Supreme Court held that the Nigam/Union of India

cannot restrain the appellant from publishing "Tata Press Yellow Pages" comprising paid advertisements from businessmen, traders and professionals.

The appellants cannot publish any "list of telephone subscribers" without the permission of the telegraph authority. Rule 458 of the Rules is mandatory and has to be complied with. The appellant shall not publish in the "Tata Press Yellow Pages" any entries similar to those which are printed in the 'White Pages' of the "telephone directory" published by the Nigam under the Rules.

The appeal is allowed in the above terms and set aside the judgments of the learned single Judge and the Division Bench of the High Court.

Comply Rule 458 as it is mandatory, the suit filed by the respondents is dismissed.


Judgment/Order

Supreme Court holds that "commercial speech" is a part of the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. (~para 24)

The Court was of view that before publishing list of telephone subscribers maintained by respondent authority appellant had to seek permission from respondent.

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