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The Legality of Parodies under Indian Law (Part II)

Issues beyond Copyright

Indian law treats parodies as curious creatures, to say the least, with their legality being quite ambiguous. Broadly speaking, the concerns relating to parodies could relate to copyright (in cases where existing works are parodied) or could relate to content law concerns other than copyright such as defamation (where, possibly, the target of the parody feels defamed) or could relate to some combination of the two.

The issues relating to copyright are not particularly straightforward but, in essence, the legality of a parody of a copyrighted work depends on how (much) of the original work (being parodied) has been used in the parody itself. When it comes to concerns other than copyright though, the waters become considerably less straightforward than they are in relation to copyright alone.

Defamation (as a civil or criminal issue) is, of course, the obvious concern when it comes to parodies. There is no statutory exception under Indian law which states that (the authors, publishers or distributors of) parodies are exempt from legal liability; almost to the contrary, in fact, the Evidence Act of 1872 explicitly indicates that caricatures could potentially be considered libellous in an Explanation (to Section 32 of the statute) which states: “A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved.”

The ambiguous legal position is slightly ameliorated by the facts that the law of defamation —though it contains no explicit ‘parody exception’— is reasonably clear in and of itself, and Indian courts have (even if not consistently and enthusiastically) shown a tendency to support free speech along with a willingness to recognise new defences. For example, in 2011, (in what appeared the first time in India), the Delhi High Court accepted ‘hyperbole’ as a valid defence to describing ‘the Tatas as having demonic attributes’ in a case where Greenpeace had done just that in an online game through which it sought to convey ‘concern and criticism of the [Dhamra port] project and its perceived impact on the turtles’ habitat’.

That said, Indian courts have by no means treated ‘reputation’ with disdain, and have attempted to strike a balance between a person’s right to reputation and others’ right to free speech. If one were to look at judgments which involve parodies, it would appear that striking a balance has rarely been easy, and that it is impossible to draw principles from case law to determine if any particular parody would be considered to have violated defamation law (other than ‘Don’t be [too] nasty!’ perhaps). Unfortunately, despite being clouded with subjectivity (as determinations of the degree of nastiness are liable to be), it is far from the only problem which arises when it comes to the possibility of a parody being defamatory. (And that is saying quite a bit considering that defamation is illegal under both civil and criminal law, each of which come with its own concerns.)

Coming back to the problem though — in a nutshell, the issue is that just it is not just ‘defamation’ as the law understands the term which comes into play. On the contrary, it is defamation as the (sometimes unreasonably) offended understand the term which has the potential to come into play.

‘Defamation’ (in relation to parodies and, probably, all other content) often seems to be understood by the offended as a generic term which means ‘anything that offends me’. And so, parodies can potentially be considered to defame religions and/or persons of a particular faith, communities, courts, people, social groups, castes, organisations, professions, or, really, anything else which strikes the fancy of the offended.

Fortunately, not every matter which causes or could potentially cause offence makes its way to court but the fact that it could do so sometimes creates a situation which has a chilling effect on free speech; almost anything could be potentially problematic as there is no way to contain third-party claims regardless of how frivolous they may be. And, unfortunately, India has a slew of content laws which are susceptible to being (sometimes unreasonably) invoked by the (often hypersensitive) offended to counter anything which they consider offensive or defamatory.

In the past, amongst others, criminal provisions relating to obscenity, the creation of societal disharmony, hurting religious sentiments, and contempt of court have been invoked, and although it could be argued that courts have shown a marked tendency to uphold free speech in a number of cases, they have also made it clear that ‘humour’ or  ‘parody’ is not carte blanche to say whatever it might occur to one to say. The result is that the legality of a parody is often impossible to ascertain (till a court has determined the issue) unless it is indefensibly defamatory or clearly non-defamatory at first glance. And ‘defamatory’ in this regard often means the spectacularly subjective ‘offensive’.

Also see: The Legality of Parodies under Indian Law (Part I): Copyright Issues

(This post is by Nandita Saikia and was first published at Indian Copyright.)