“Traditional media had a filter… But where everyone is creator, editor and publisher, those filters disappear”, Satyajit Sarna on Media Liability!

With the rapid growth of social media, Media Liability has assumed significant importance particularly in context of reputation. Today reputation risk is one of the top concerns for risk managers across the globe. Raheja QBE is a leading insurer of this line of business.

In this interview with Praveen Gupta (PG), Satyajit Sarna (SS) a rising star in the space of Media Law and Defamation shares some interesting insights on where it is all headed to. Himself an established author, Satyajit’s latest book The Profane, a collection of his poems, is receiving rave reviews.

PG: What are the origins of Media Law in India?

SS: The What we call media law practically is an amalgam of a number of fields of law: intellectual property law, constitutional law, and the law of torts, for example. Practically speaking, media law becomes whatever media organisations are interested in or affected by. Regulation of advertising, for example, is also media law.

PG: Is it a case of being warped in time? Does it reasonably address the emerging challenges triggered by the social media?

SS: There are voices that say that the coming of the internet has changed a lot of things. Just to take an example – defamatory content which is shared by hundreds of social media users might effectively become irremediable. How many people do you take to court? How do you counter it? In such a scenario, the traditional remedy of an injunction for example becomes a dead letter. As a phenomenon, “sharing” or replication has dissolved traditional measures of “reach”.

Another issue with social media is the end of “gatekeepers”.
Traditional media had a filter of a professional class of editors and publishers, which would exercise a level of discernment and risk avoidance. But where everyone is creator, editor and publisher, those filters disappear.

Similarly, copyright regimes worldwide are struggling to keep up with the ease of replication of data. Some solutions we come up with will be technological in nature. For example, a better class of metadata may be developed.

PG: Is defamation just about libel and slander? Are there any new risks emerging in this space?

SS: Classically, defamation was characterized into written libels and spoken slander. Over time, more of the cases we are seeing would be categorized as libel for the simple reason that slander does not carry easily, and is harder to prove.

In terms to the content of these torts, I am very interested in the space of privacy and invasion of privacy. The Supreme Court’s celebrated 9 judge bench judgment in the Puttuswamy case has opened up a lot of questions about privacy rights. Historically, there has always been a common law right to privacy, but the expansion of that right is very much a hot topic right now. Legislations going forward will have to take account of it. Another possible class of cases we may see more is business libels. Allegations of corruption against major industrialists have yielded litigations of late.

PG: As a society and businesses, how well do we risk manage our reputations?

SS: As a society, we are still not as litigious as for example, the United States. But we are getting there. Businesses have certainly become very protective of their reputations – also in a broader, brand oriented fashion. The first line of defense for reputational risk for businesses is usually public relations and correcting any misimpressions. Indian companies have gotten a lot more sensitive at brand management.

PG: Is there a growing legal activity and rising costs in the media domain?

SS: I would say that there is definitely a rise in the number of notices and cases flying about which is arising of out of the mushrooming of media outlets and the increasing level of access to media. Whistleblowers for example, as a class, now have the ability to bring public attention to their causes. The recent #MeToo phenomenon showed us the power of everyday complainants to get picked up and broadcasted by more popular accounts and bring to light wrongdoing across industries.

In terms of costs, professional legal representation is expensive but also unavoidable.