Kamal Ghorui
The press has long been the guardian of democracy. Today, a fifth estate of millions — YouTube channels, Instagram reels and viral posts — has emerged, celebrated for democratizing information. But are they sometimes used as weapons of mass destruction? Reputations built over decades demolished with a political agenda and a click. This column examines the unchecked power of digital media through the lens of a landmark Delhi High Court ruling that found Nakkheeran, a Tamil YouTube channel, with “ulterior political agenda” behind years of sustained defamatory campaigns targeting Isha Foundation and Sadhguru.
The shenanigans of the fifth estate
The pen may be mightier than the sword. Mercifully, the Indian judiciary is mightier than the pen. Though they have been unabashed rah rah cheerleaders of “free press”, thankfully, they know when to bring down the gavel and stop the tango.
The rise of the fifth estate has been both a delight and a menace. It has been celebrated for democratizing access to information and for promoting citizen participation in the democratic process. But not without its downside. It has spawned the toss grenade-and-run style of “journalism” that often rides shotgun on dismantling the reputations of individuals and institutions painstakingly built over years and decades.
Play it again, Sullivan
The American judiciary is almost absolutist in its defence of freedom of speech and expression. The First Amendment offers a near impregnable wall of immunity to American journalists who are encouraged to be aggressively hyperactive in their scrutiny of public figures. So much so that public figures have less than a flimsy chance in a court of law against rogue journalists.
In the 60s, the New York Times ran an ad with factual inaccuracies that the then public safety commissioner L.B. Sullivan felt reflected poorly on him. He asked the Times to retract the ad. They refused. He sued. A jury found in his favor. The Times appealed. In a landmark judgement in what is now the famous New York Times and Co vs. Sullivan, the US Supreme Court ruled that the First Amendment protects the media from prosecution even when they publish false statements. The burden of proof of “malicious intent” rests with the plaintiff.
That was the 60s when traditional media – the fourth estate – was seen as an equal partner in upholding the egalitarian principles of democracy and were therefore afforded maximum protection and trusted not to misuse the privilege. There was greater editorial oversight, fewer opportunities (and technology) to create fake news and limited reach and impact of sensationalism or the agency to monetise it. Voyeurism and navel-gazing were not yet the celebrated art forms that they are today. The times, they are a-changin’ and the voices to reconsider Sullivan are growing louder.
The rise of the fifth estate
With the rise of the fifth estate, a journalist is anyone who declares themselves so. Truth is anything we want it to be. And we’ve graduated from “fake news” to “make news”. We are the news. Suddenly, an extraordinary freedom is being abused by ragtag groups of nuisance value with access to unrestricted airtime and viewership.
YouTube has 110 million+ channels, Instagram has 2 billion+ users, Facebook is at 3 billion+. Indians are the top users of all three. For a nation that is loud, passionate and runs largely on emotion one delinquent content creator can set off a civil war. Even so, the platforms themselves are rarely held accountable (usually only individual content creators are) even when they air blatantly provocative, defamatory and propagandist content. With boundaries drawn in running water, sketchy terms of accountability and the unenforceable onus of self-regulation, it is left to the judiciary to define the distinction between free speech and premeditated slander.
No leg to stand on…will dance
In a recent judgement by the High Court in Delhi in Isha Foundation (plaintiff) vs. Google LLC & Ors (defendant), the High Court did a “Sullivan”. It found in favour of the plaintiff and ordered a rare gag finding “an element of malice on part of the Defendants…with the aim to malign and cause harm to the Plaintiff-Trust.”
Nakkheeran TV, a YouTube channel with 41.5L subscribers, had been running a sustained smear campaign maligning Isha Foundation and its Founder, Sadhguru, for several years, through Google’s YouTube. All its allegations – social, ecological, cultural, legal – against the Foundation have repeatedly been proven to be false in courts of law and by the relevant authorities including the Government of Tamil Nadu, the Forest Department and Wildlife Trust of India.
Without a leg to stand on, the channel switched gears: it began a relentless character assassination campaign against the Isha founder, leveraging its considerable subscription base, in an attempt to sow seeds of mistrust and suspicion. The channel raked in the moolah with outrageous click-bait video titles, doctored images and butchered spellings – giving facts, common sense and English grammar a long unpaid vacation.
With brazen disregard for the very laws of the land it was purporting to uphold, the channel continued to rehash and propagate the same falsehoods that had been thrown out by the courts, over and over again. This led an exasperated High Court to comment: “…certain ulterior political agenda is also afoot on part of the Defendants with the aim to malign and cause harm to the Plaintiff-Trust.”
For everything else, there is fact check
We are a people with civilizational sanction to treat Truth as a subjective and individual pursuit. For everything else, there is Fact Check. Nakkheeran’s never-ending fascination with fact-free allegations would be hysterically hilarious were it not a maliciously manipulative attempt at creating an ominously dangerous narrative.
Our judiciary, already overstretched with graver and more urgent matters for hearing, is constantly distracted by the shenanigans of the fifth estate. The law can at best regulate human behaviour, not the human being. Thank God for small mercies, though.
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