What are Blind Items?
Modern technology has revolutionized how we disseminate and record information and its no doubt that this has led to an increase in the commercial exploitation of the private lives of public personalities and celebrities often hurting the sentiments and reputation of such people. Several magazines and tabloids publish regular columns on celebrities. A blind item is a column wherein the name / identity of the celebrities being discussed is obscured. Such items are typically brief describing certain events surrounding the celebrity and often posing questions to the public to partake in a game of guesses in the comments section. On the face of it, such blind items may be perceived as harmless. However, blind items ostensibly function with zero restrictions. In India, several websites are dedicated to publishing blind items about Bollywood celebrities. Blind items are popular because they safeguard entities from potential lawsuits 1 and thus go under the radar from the legal perspective. Also, celebrities are inclined to refrain themselves from confirming or denying a blind item for the fear of legitimizing the medium 2. Defamation against blind items can be understood with the help of the doctrine of innuendo, which is a well-settled principle in tort law.
The Doctrine of Innuendo
Innuendo in law means “an indirect hint” and can be used in defamation lawsuits (libel or slander) to establish that the complainant/plaintiff is the person about whom defamatory statements have been made in a blind item. The courts in India have stated that defamation by innuendo is well known and it is not always necessary to name the person. It has been held that in order to constitute defamation, the identity of the complainant must be established. This does not mean that the person must be necessarily named. If the description and attendant circumstances suggest with fair certainty the identity of the person intended, that is sufficient to attract the offence. The reference need not be explicit. The standard is that a reasonable person in the context in which the description is made, must understand it as a reference to the complainant. It is not imperative that a libelous statement is made with directness, nor does it mean that as long as it is not by specific reference, it is not libel. A degree of indirectness or innuendo is noticed in such attempts, and is to be expected. It can be said with assurance that even without specific or explicit reference, by innuendo, defamation can arise 3.
In a Delhi High Court case of 2008 4, while deciding on the issue of whether the impugned article in the case was defamatory and if so, whether the same was defamatory to the Plaintiff’s reputation, the court held that “in a case where the plaintiff alleging defamation is not named, it is incumbent upon such a plaintiff to establish that the persons/people who knew him, understood the impugned article to be referring to him, in spite of him being not so named in the impugned article. Unless the said fact is established, there can be no claim for defamation inasmuch as without the persons knowing the plaintiff connecting the allegedly defamatory allegations to the plaintiff, even if the allegations are per se defamatory, the plaintiff cannot sue. In this regard, it is immaterial whether the plaintiff understood the libel as referring to him or that the defendants, in fact, intended the libel to be directed to the plaintiff. Publication, i.e. communication to a third party, is the essence of defamation. Without a person other than the plaintiff and the defendant becoming privy to the libel, the same is not actionable”. In this case, the plaintiff had failed to examine even a single witness who connected the impugned article even if defamatory, to be directed against the plaintiff. Further, the Supreme Court of India has held that “it must be clearly proved that the defamatory allegation was made in respect of a person though not named yet so fully described that the allegation would refer to that person and that person alone. Innuendo cannot be proved merely by inferential evidence which may be capable of two possibilities” 5.
Defamation under Indian Law
Defamation in India is both a civil as well as a criminal offence. Section 499 of the Indian Penal Code (“IPC“) provides for defamation stating that “whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person”. Section 500 of the IPC provides for punishment in respect of the offence, which is imprisonment extending up to two (2) years or a fine or both. The civil law relating to defamation is not codified in India. The courts in India have sought to resolve fundamental issues surrounding defamation, however, several questions remain unsettled.
Blind items are often used to transform gossip into assertions and with the power of modern technology; they have an instant powerful impact. While freedom of speech is an essential right in a democratic society, however, protecting people’s privacy is integral to people’s autonomy in as much as free speech is. Defamation law is largely ineffective in protecting the spread of gossip and rumours on the Internet in the form of blind items. From the foregoing case laws, it is understood that the burden of proof is on the complainant/plaintiff to establish that the readers/people who know him/her, understand the impugned blind item to be referring to the complainant/plaintiff specifically without any ambiguity or doubt in their minds as to the identity of the complainant/plaintiff.
3 V. Subair Vs. P.K. Sudhakaran 1987CriLJ736
4 Frank Finn Management Consultants Vs. Subhash Motwani and Ors. CS(OS) 367/2002
5 Manmohan Kalia v. Yash and Ors. Civil Appeal No. 2691 (NCE) of 1982