The professional reputation (viz of lawyer, doctors, chartered accountant, police officer etc) can his or her reputation as an individual or group really be adversely impacted by cinematographic work or web series over internet like Netflix or Amazon? Can any profession per se have a reputation and social, economic and value perception among the immediate community they are living in. Now if defamatory or derogatory reference (oral, written or audio visual) is general and not specific to any person  which can be set within a determinable boundary it may not qualify within the meaning of defamation. Ashutosh Dubey Vs Netflix reaffirmed tests of defamation within the segment of (Over the Top” Media - OTT ) platform such as Netflix.. 
 

A fragment of the issue came up for consideration in Ashutosh Dubey Vs Netflix (CS (OS) 120/2020) before the Delhi High Court wherein only the interlocutory application was heard and decided. It is a hearing via videoconferencing and during Covid 19 pandemic amidst countrywide lockdown. The judgment on the interlocutory application came out on 5th May, 2020.

Episode 4 of Season 1 in Netflix’s webseries ‘Hasmukh’ in Hindu language contained certain derogatory remarks against the lawyers as a fraternity. It was argued by Plaintiff who is a lawyer himself that the intent of the plaintiff is not to highlight defamation of an individual but to restrain the defendants from webcasting, passing derogatory remarks, casting aspersions, making scandalous statements / comments on the legal community

The Plaintiff contended the statements below will cause disrepute to the legal profession and lawyers in the eyes of general public and are a constant stigma on the image of lawyers and a constant source of annoyance to the plaintiff and have lowered the image of lawyers and the plaintiff amongst the public at large

Weighing the comments by standup comedians in contradistinction with a comment by a journalist or a state government spokesperson

The Delhi High Court’s emphasized the following:

• The role of a stand-up comedian to highlight a particular point exaggerates the same to an extent that it becomes a satire and a comedy. People do not view the comments or jokes made by stand-up comedians as statements of truth but take them with a pinch of salt with the understanding that it is an exaggeration for the purposes of exposing certain ills or shortcomings.”

• That satirical techniques is a work of art and used to bring into light certain social evils in para 23 and 24 “protagonist prima facie appears to be exaggerating the issue for the purposes of highlighting the ills of the profession. One of the satirical techniques to criticize a particular subject or character is to exaggerate it beyond normal bounds so that it becomes ridiculous and its faults can be seen. Satire is a work of art. It is a literary work that ridicules its subject through the use of techniques like as exaggeration. It is a witty, ironic and often exaggerated portrayal of a subject.”

• That failure to establish a definite class out of the overall fraternity of lawyers (i) the reluctance to pass any order which will impact freedom of speech and expression guaranteed by our Constitution (ii) the very essence of democracy is that a creative artist is given the liberty to project the picture of the society in a manner he perceives. One of the prime forms of exposing the ills of the society is by portraying a satirical picture of the same. Stand-up comedians perform that very purpose. In their portrayal they use satire and exaggerate the ills to an extent that it becomes ridicule. In the humorous portrayal of the ills of the society the stand-up comedians use satire. Refer para 25, 26 and 27 of In Re : Netflix case]

The Excerpts of Precedents explained by the Hon’ble Court are as follows:

• In para 15 of the judgment, the Hon’ble Court referred the case of (2) Eastwood v. Holmes 1 F. & F. 347 (The English Reports, Volume CLXXV, Nisi Prius VI) completely wherein it was held that lawyers as a class are not capable of being defamed. Justice Willes held “The action cannot be maintained. Assuming the article to be libellous, it is not a libel on the plaintiff, it only reflects on a class of persons dealing in such objects, and it is immaterial in this view whether they are genuine or not. If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individual, which there is not here. There is nothing to show that the article was inserted with any special reference to the plaintiff."

• In another judgment by Patna High Court in Asha Parekh vs St of Bihar 1977 Cri L J 21 interpreting Section 499 of Cr.P.C (Criminal Defamation and not civil defamation) the word ‘person’ in the said section includes a company, association or a collection of person. In Explanation 2 of the said section ‘a class of person must be attributed to a small determinate body’. Court referred to a pre-independence case law in Govt Advocate Vs Gopa Babu Das (AIR 1922 Patna 1010) wherein libelous defamatory statements were passed by newspaper against two police constables of Begunia Police Station in Puri District but the constables were not named.

• Dawson Miller, C.J. observed as follows:  “However reprehensible and morally unjustifiable the words complained of may be they must to be, actionable, contain an imputation concerning some particular person or persons whose identity can be established. An Imputation against an association or collection of persons jointly may also amount to defamation within the meaning of the section but at the same time it must be an imputation capable of being brought home to a particular individual or collection of individuals as such. The article in question is not directed against the constables of the Begunia thana collectively so that they, as a body, could assert that each and all of them had been libelled. Nor can it be said that two ascertained individuals have been the object of the attack. It is unnecessary that the person whose conduct is called in question should be described by name. It is sufficient if on the evidence it can be shown that the imputation was directed towards a particular person or persons who can be identified...."

• It is profoundly laid down in Halsbury Law of England and Gatley in "Libel and Slander" where it has been observed that "where the words complained of reflect on a body or class of persons generally, such as lawyers, clergymen, publicans or the like, no particular member of the body or class can maintain an action."

• The Court in para 16 referred to Rajasthan High Court decision in Shah Rukh Khan Vs. State of Rajasthan and Ors RLW 2008 (1) Raj 809, held that "law requires that the defamatory statement, in order to be actionable, be made against a definite and an identifiable group. However, lawyers taken as a class cannot be identified with any particular individual indeterminate, indefinite, and unidentifiable as the members are: Firstly, the members of this class are too varied to be reduced to a few traits. There is not a homogenous class, but a heterogeneous one, made up of wonderfully different individuals. Secondly, they are spread over the length and the breadth of the land. Thirdly, the class is always in flux, ever changing, as new lawyers enter and old ones depart the profession. The entire members of the class are clearly unidentifiable and indeterminable."

In the last 70 years, worldwide there has been specific cases filed by individual practicing lawyers/attorneys against clients or groups of persons passing defamatory and derogatory remarks against such specific lawyers wherein appropriate damages were computed and awarded.

However, in the above case there was a general reference to lawyers as a legal fraternity and not specifically to any lawyer or identifiable group of lawyers.