Apar GuptaHustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)
squaring parody with the freedom of speech
To me parody is Jerry Falwell remembering his first time. Let me explain without innuendo. One of the leading cases on parody of public figures is the United States Supreme Court decision in Larry Flynt v. Jerry Falwell. The case concerned an advertisement in Hustler magazine which was run by Larry Flynt. The advertisment shown above mocked Jerry Falwell, a prominent Reverend in the United States for fictionally loosing his virginity to his mother.
What may have been in bad/good taste threw up an interesting legal issue, when Falwell initiated legal proceedings against Larry Flynt for libel and intentional infliction of emotional distress. Following the precedent as set in New York Times v. Sullivan and its progeny, the United States Court unanimously threw out the case, ruling that it primarily clashed with the First Amendment to the United States Constitution. The court held that the First amendment which contains the a constitutional guarantee to freedom of speech was held to protect such caricatures which constituted a parody of a public figure (the fact that Reverand Falwell was a public figure was not disputed by either party) if there was no evidence of “actual malice”.
But how well do we deal with parody in India ?
Not so well I am afraid, due to substantial difference in our legal treatment of free speech as compared to the United States. This difference must be borne in mind before entering into any free speech quandary. Though the right to free speech in the United States is not absolute and may be abridged, the threshold for such state interference is incredibly high. On the other hand in India, we have an express clause in our constitution itself which sets certain reasonable restrictions under which legislation can be made by the Parliament to abridge the exercise of speech.
Hence, whereas flag burning is permissible in the United States as a expression of speech being symbolic in political protests, in India even raising the national flag is permitted under controlled conditions. For instance, if you even drape it incorrectly you may run foul of the Flag Code of India, the Prevention of Insults to National Honour Act,1971 and the Emblems and Names (Prevention of Improper Use) Act, 1950. This is not mere conjecture, Sania Mirza faced legal proceedings for placing her feet higher than the Indian flag which was placed on a lower level.
Now lets put this into the context of the present debate surrounding the blocking of six twitter handles which allegedly “impersonated” our Prime Minister and one of which admittedly incorporated aspects of parody and has sought to take it as a defense.
LEGO Twitter Fail Whale by tveskov Licensed under CC BY-NC-SA 2.0
the governing law
substantive offences and the parody defense
Even though the government in its press statements has only indicated that the six twitter accounts have been guilty of “impersonation” and being “fake”, in an attempt to give it some legal backing it has to rely on substantive legal provisions under which such acts are prohibited. Till date it has failed to do so, so the provisions which spring to my mind and apply most directly are listed below:
- Libel [defamation as a tort and as a crime under Section 499 and 500 of the Indian Penal Code, 1860]
- Breach of privacy [as a tort only]
- Improper use of certain emblems and names [Sec. 2(a) and 3 of the Emblems and Names (Prevention of Improper Use) Act, 1950 readwith the Schedule №9. Civil penalty of Rs. 5000 for such improper use.]
- Sending offensive messages through communication service [given how broadly worded Sec. 66A of the IT Act is any tweet which is sarcastic/ironic would qualify as “grossly offensive” and constitute an offence under it.]
- I know some of you may be saying trademark or passing off but this does not arise in the present case. The trademarks act is an enactment intended to prevent consumer deception of registered goods or service marks utilized in commerce. The prime ministers office or name (Dr. Man Mohan Singh) is not trademarked. Moreover there is no intention to use it in commerce. Hence any reference to the trademark law is specious.
Now how will such laws play with the parody defense. Here I am presuming, (a) the parody is of the prime minister who is a public figure; (b) the tweets do not constitute hate speech and satisfy the ingredients of Sec. 153A of the Indian Penal Code, 1860 (which contains the offence for promoting enmity between different groups on grounds of religion, race, place of birth, residence… etc.).
The most relevant case law which I could find on this subject is the case of Ashwani Dhir And Ors. vs The State Of Bihar, in which a television show titled as “Ram Khilawan (C.M) ’N’ Family” parodied Lalu Prasad Yadav a politician and the former Chief Minister of Bihar who has been accused in cases of graft. The title character closely resembled the former Chief Minister in his distinctive attire, mannerisms and rustic wit and showed him at some instanced being a party to corruption.
The court quashed an injunction against the telecast of the show which was granted earlier on the reasoning that:
- No case for actual harm was made out by the original Plaintiff who filed the suit to restrain the telecast of the show. The submission that the show denigrated a specific caste to which the chief minister belonged was not supported by evidence.
- Procedurally such powers do not vest with the civil court and should odinarilly be exercised by the appropriate authority under the Cable Televisions Regulation Act, 1994.
The court before going into these aspects noted that:
“A creative artist is free to project the picture of society or the political system or the person in politics in the manner he perceives, provided its display does not affect public order, decency or morality, defamation or incitement to an offence. It may be legitimate for the State to prohibit telecast of serial which incite violence or have a tendency to create public disorder, it cannot suppress even a very strong pungent satire of a political leader, which has no such tendency. Legitimate creation by creative artist cannot be suppressed on the ground of intolerance of a section of people or existence of some hostile audience…..
Bearing in mind the aforesaid, when I proceed to examine the plea of the plaintiff, I find that the averment made in the plaint, the injunction petition and the application filed later on with affidavit that the serial has denegrated the dignity and culture of Bihar, created feeling of anger and revenge in the minds of some person , caste tension and intended to character assassination of beloved leaders of Bihar do not make out a prima facie case, when tested in the backdrop of the fundamental right. In my opinion, prima facie, the use of expression ‘Yadav’ ‘Sharma’ or ‘Lajawab Lattubaz’ for LL.B. and owl as a symbol of a party in no way affect public order, decency, morality or leads to defamation or incitement. With all the emphasis at my command, I may observe here that intolerance of a section of people or existence of some hostile audience cannot prohibit the creative artist to create. “
Now even though the court did not get into the issue as to whether people would mistake Ram Khilawan for Lalu Prasad Yadav, it is quite clear in my mind that such an issue arises in the present case and will be more relevant for determination. Even though satire and parody are given lip in several book banning cases, many court verdicts reject legitimate satire and demonstrate a low degree of toleration especially when it concerns “respected” politicians and leaders. For instance. in one case the author of a poem which poked fun at Gandhi was charged under for various sections of the IPC. Seeking quashing of the case he filed affidavits from other authors and poets that the poem was a work of satire, the Bombay High Court refused to quash the FIR and permitted the continuation of the trial.
However, that speech by itself is a later determination. I cannot go into it since the main grievance of the government is against the accounts impersonating the prime minister as opposed to the tweets (i.e. the speech). Hence the key in the present case turns on the different indicia used to flag that the twitter accounts as parody accounts. In such a case twitters own terms and policies prove extremely helpful.