The Supreme Court issued a verdict last week, convicting the editor and publisher of sidhakura.com for contempt of court. The news outlet had published a series of stories based on a recorded audio, now declared to be fake, about a conspiracy by several public figures to influence multiple court cases. The Court convicted Raj Kumar Timilsina of producing fake audio content with malicious intent.

The news series could have been prosecuted as a case of defamation, but the SC took the case suo moto and decided to proceed with a case of contempt of court. The only conclusion we can draw from this is that either the court felt the imperative to protect the public interest, or thought that its operational environment was becoming untenable.

Supreme Court under pressure

The Supreme Court's decision to hear this case en banc—with all nine justices—demonstrated the gravity of the issue.

In recent years, Nepal’s judicial system has come under attack from two fronts. One front is the populist, consisting of demagogues and sensationalist media, which see fault with every state institution and every public official. Because of the growing attacks, people’s trust in the judicial system is gradually eroding.

Another more significant front is the kleptocracy, which has sought to hollow out the judiciary and distort its functions. Nepal’s kleptocracy has developed an elaborate system of impunity to protect its members from the rule of law. In developing such a system, the kleptocracy has co-opted influential actors within Nepal’s core state legal institutions.

In attacking the kleptocracy, the media and populist demagogues have directly or indirectly made the judiciary more vulnerable. Similarly, in an attempt to resist the populist front, the Supreme Court has made itself more exposed to the hidden kleptocracy.

SC’s definition of contempt of court

Primarily, the constitution and prevailing laws of Nepal define contempt of court as interference with the administration of justice and disobedience of court’s verdict. In international practice, contempt of court relates to cases where “justice itself is flouted, not the individual court or judge who is attempting to administer it.” In India and elsewhere, contempt of court is often contested given the discretionary power of the judges who define it.

In the current verdict, the Supreme Court has sought to expand the scope of the term “execution of justice” to include conditions where people’s trust and faith in the court is affected. In doing so, the SC has entered a broad, vague and undefined territory, promoting discretionary rational exercise.

Although the court has sought to refer to several decisions in the past where the SC has tried to define contempt of court, the effort is largely endless, and thus meaningless. As the verdict itself accepts, in attempting to discern contempt of court, each bench needs to define and determine the issue itself.

So on the first question, whether sidhakura.com’s actions constitute contempt of court, there are strong grounds to argue that the Supreme Court has made a very convoluted cause and effect argument about interference in the administration of justice. The Supreme Court cannot use the pill of contempt of court, that too in a discretionary manner, to treat an ailment that is affecting the whole society.

Press freedom

The second, more important question is about press freedom, especially the privileges given to the media, and contempt of court.

According to the Associated Press briefing on media law, “The press enjoys a great protection when it covers the affairs of public officials. In order to successfully sue for libel, a public official must prove actual malice. This means the public official must prove that the editor or reporter had knowledge that the facts were false or acted with reckless disregard of the truth.”

Such provisions are made to protect the media’s role as a means of extracting accountability from public officials and public figures.

There is a fundamental difference in a case of defamation and a case of contempt of court. A case of defamation, especially in the case of a public figure or a public official, must establish that the publisher or editor has a deliberate intention to harm and a reckless disregard for its truth, or serious doubts about the veracity of the published content, or whether the issue is of major public concern or not. In a case of contempt of court, the question of intention is mute, only the effects are evaluated.

The Court was fixated on protecting itself rather than protecting freedom of expression. In doing so, the Court has ignored a fundamental principle of libel law that could put the whole of Nepali media under pressure in the future.

Self-regulation

Sidhakura was established recently as a media organisation. In recent years, the outlet has been very aggressively trying to brand itself as an anti-corruption initiative that supports political change in favour of new actors like Rabi Lamichhane, President of Rastriya Swatantra Party, and Balen Shah, Mayor of Kathmandu. Sidhakura has also been waging a war against some established media institutions and their owners.

Sidhakura often promotes aggressive and populist content. Its intentions cannot be questioned at face value. However, as with almost all other media outlets in Nepal, Sidhakura has issues with the capacity of journalists and maintaining the highest standards.

In publishing the “Dark Files,” a series of contents purporting to show corruption in the judicial system, the media institution may initially have fallen for the audio “evidence” provided by a third party. However, in persistently promoting the series despite legitimate questions about the veracity of the content, the media outlet acted with reckless disregard for the truth and indicated that there may be intentional malice behind its media operations.

When people make false allegations, it is the duty of a journalist to verify the truth of those accusations. Publishing reports of allegations without verification can justifiably lead to factual errors and the potential for defamation suits. Eagerness to expose corruption or hold the powerful to account cannot be an excuse for sloppy journalism.

The case of Sidhakura shows the challenge in our current situation. The media in Nepal is well protected, despite being disorderly. However, if the Nepali media fails to upgrade its professional standards, and address prevalent challenges, there may be a backlash that can restrict its freedoms and privileges in the future.

Already, the media is under attack from the kleptocracy and powerful interest groups. Hence, it is imperative that the Nepali media should be the first actor to analyse recent developments and devise strategies both to protect press freedoms and regulate itself.

In the process, the media should consider the judiciary to be a partner in reforms, not an adversary.