Privacy of Public Figures and the Chilling Effect on Free Speech

Bar & Bench May 31 2018

Sidhant Kumar

The Madras High Court recently in Kanimozhi Karunanidhi v P Vardarajan granted an interim injunction directing a newspaper not to publish any material that relates to the private life of the applicant without consent.

Further, the court directed the newspaper to carry prominently the applicant’s version on publications that it considers to be in public interest. The court relied on the Supreme Court’s decision in KS Puttaswamy v Union of India by a bench of nine-judges (which declared the fundamental right to privacy) to hold that prior-restraint may be issued on the grounds of violation of privacy.

The decision of the Madras High Court raises important concerns for privacy jurisprudence in India. First, what the court considers to be a violation of privacy. Second, the blanket interpretation of the Puttaswamy decision, in favour of prior-restraint of speech to protect the right to privacy.

The freedom to comment on the conduct of public representatives is the life and blood of democratic politics. Broad privacy claims by public figures especially elected figures have the potential of creating a chilling effect on legitimate free speech. A court, therefore, needs to carefully determine what constitutes a violation of privacy.

For instance, the Madras High Court found that publications describing the strained relations between the applicant and her brother both of whom were at the time important elected representatives and key DMK party leaders violated her privacy. In our country, where the leadership of multiple political parties is concentrated in one family, claims to protect the privacy of family life by public figures may have a serious impact on legitimate political speech. The courts, therefore, must proceed to deal with privacy claims by public figures with a certain degree of circumspection.

The Supreme Court in R Rajagopalan v State of Tamil Nadu (Auto Shankar Case) through a bench of two judges, addressed the issue of prior-restraint on publication in matters concerning the private life of public officials.

The decision in Auto Shankar Case unequivocally held that “the remedy of public officials/public figures, if any, will arise only after the publication.” The Supreme Court in the Puttaswamy case extensively relied on the ratio in the Auto Shanker Case. The question of prior-restraint was not before the Supreme Court in the Puttaswamy Case and therefore it has not expressly deviated from the position laid down by the Auto Shankar Case.

The question before the Supreme Court in Puttaswamy was whether the right to privacy was protected by Article 21. The observation of the Madras High Court that “the theory that there cannot be a prior restraint or a gag order upon the press or media is diluted, after the judgment of the Hon’ble Supreme Court in Justice K.S. Puttswamy’s case” therefore is not the correct exposition of the law.

Notably, the Madras High Court finally while granting the interim injunction does allow the newspaper to publish what it considers in public interest on the condition that the applicant’s version is prominently mentioned. In some sense, therefore, the court desisted from imposing an all-encompassing prior-restraint on publication.

The competing interests between privacy and free speech especially in the context of public figures is an important constitutional question. There have been many instances where courts in other parts of the world have affirmed the privacy claims of public figures against the press.

The Supreme Court in Sahara India Real Estate Corporation v. SEBI speaking through a bench of five judges also held that right of the press to report judicial proceedings has to be balanced against the Article 21 right of a fair trial using a test of proportionality. In the backdrop of the Supreme Court’s recent affirmation of the right to privacy under Aricle 21, it will be interesting to see how the competing interests between free speech and privacy are balanced.

To conclude, an anecdote from President Kennedy’s life may be illuminating in this context of the privacy of public figures. He was once asked in a press conference if he still enjoyed reading newspapers.

President Kennedy responded by saying that “there is a terrific disadvantage not having the abrasive quality of the press applied to you daily, to an administration, even though we never like it, and even though we wish they didn't write it, and even though we disapprove, there isn't any doubt that we could not do the job at all in a free society without a very, very active press.

 

Sidhant Kumar is an advocate and the co-author of the book ‘Privacy Law: Principles, Injunctions, and Compensation’, Eastern Book Company cited by the Supreme Court in KS Puttaswamy v Union of India.

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