The recent concern expressed by a film producers body about scathing film reviews, has revived the debate on what exactly constitutes ‘fair comment’ and where it strays into defamatory terrain. The villains referred to are self styled ‘critics’ who make reckless, impatient, premature and sweeping comments. Hardly five minutes into a movie, reviews are posted with frenzied haste. They may range from “this film is crap” to “don’t waste your time and money watching this” or even “the director does not know filmmaking”. These comments on the social media are invariably not from connoisseurs but from average movie goers. The line between criticism and defamation often gets blurred.
The Supreme Court in Harbhajan Singh Vs State of Punjab had referred to a decision of the Bombay High Court in Emperor Vs Abdool Wadood Ahmed. “The honest conclusions of a calm and philosophical mind may differ very largely from the honest conclusions of a person excited by sectarian zeal and untrained to habits of precise reasoning. At the same time, it must be borne in mind that good faith in the formation or expression .of an opinion, can afford no protection to an imputation which does not purport to be based on that which is the legitimate subject of public comment.”
A film is meant for public viewing. Its commercial success emanates from the pockets of the average film buffs. Not necessarily the experts. Production houses cannot expect everyone to be a fan and lap up all that is made. Opinions may be half baked, ill-informed, unjustified, even unfairly harsh. But that is a reality you have to contend with when a work is put out for public consumption. That said, a distinction must be made between scurrilous personal attacks on the producers, cast and crew and artistic criticism, even if it is not constructive.
To attract the offence of criminal defamation defined in Section 499 of the Indian Penal Code (IPC), an imputation “by words either spoken or written or intended to be read, or by signs or by visible representations” must necessarily “harm” or have the intention of harming the “reputation” of a person. What is often lost on many of us is that ‘reputation’ is not the opinion, exaggerated sometimes, of ourselves. It is what others consider us to be. For an imputation to be defamatory, it must “lower the moral or intellectual character” of a person “in the estimation of others.” The test of defamation in criminal law is quite stringent as there are ten exceptions - right from truth and good faith to public good. So from a legal standpoint, a film review may infuriate a producer but it may fall short of the ingredients of defamation.
Film reviewers have a fairly long Constitutional leash, guaranteed under Article 19(1)(a). The Supreme Court in Shreya Singhal Vs Union of India was concerned about an “insidious form of censorship which impairs a core value” and which may have a “chilling effect” on free speech. The reasonable restrictions in Article 19(2) which, inter alia, include defamation, do not empower filmmakers to stifle unfavourable commentary on their artistic work. That would amount to a different form of censorship that they themselves ought to resent.
Our Courts have taken a balanced view in such matters, even as they have upheld the right to free speech. In a landmark decision, the first bench of the Madras high court S. Tamil Selvan Vs Government of Tamil Nadu, better known as the Perumal Murugan case, made it clear that “freedom of speech and expression is a highly treasured value under the Constitution and voice of dissent or disagreement has to be respected and regarded and not to be scuttled as unpalatable criticism. Emphasis has been laid on the fact that dissonant and discordant expressions are to be treated as viewpoints with objectivity and such expression of views and ideas being necessary for growth of democracy are to be zealously protected.” On the other hand, the court observed that “whenever free speech and expression is sought to be given wings and let loose against the backdrop of one s creativity, it must carry on its flight within the domain of constitutional morals, forever remembering that while individual opinions and forms of expression are critical to advancement and multifaceted national development, equally important is the safeguarding of the dignity and respectability of another.”
A big production house can easily deploy legal firepower to intimidate reviewers, the legal hairsplitting and merits of cases notwithstanding. In a criminal case, the trial is the punishment, while civil defamation may result in damages to be paid to the plaintiff. More often than not, these cases are either quashed by high courts under Section 482 of the Criminal Procedure Code or the plaint is rejected under Order 7, Rule 11 of the Civil Procedure Code. In its wisdom, the apex court stopped short of decriminalising defamation. In Dr Subramanian Swamy Vs Union of India, it held that “reputation which encapsulates self-respect, honour and dignity can never be compensated in terms of money.” Malicious reviews can go viral and affect box office collections.
Paid reviews, planted stories or malicious content orchestrated by rivals are a separate issue altogether. A fine balance is needed. Film buffs must spare a thought for the effort, time and money spent on making a film, and watch them in their entirety, before spouting their reviews. And filmmakers must take reviews in their stride. Dragging reviewers to court must only be the exception, not the norm.
(The writer is an advocate at the Madras high court, columnist & author)
