Thought Papers for Thursday Seminar (Civil Defamation, Privacy, Injunctions and Prior Restraint)
man...@nujs.edu
Thought Paper – II
R. Rajagopal v. State of Tamil Nadu
Mansi Binjrajka
The main problem with this case is the recurring confusion between a dispute between two individuals and a dispute between an individual and the state. This confusion is evident from the issue framed by the court “Whether a citizen of this country can prevent another person from writing his life story or biography? Does such unauthorized writing infringe the citizen's right to privacy?” This incorrect link between the right to privacy and its violation by a citizen is what recurs throughout the reasoning of this case. The Court seems to have treated the right to privacy derived from Article 21 and the right to privacy as a concept in Tort law as one and the same.
Precedent choice by the Court in this case was faulty. While considering the extent of the right to privacy, the reliance on Kharak Singh is erroneous since the majority decision in that case specifically stated that the right to privacy is not one that is identified in India. The Court also referred to a number of American decisions, which, including the Indian precedents, were violations of the right to privacy by the State, hence irrelevant to the facts under consideration. Nevertheless, the Court uses these decisions to define the right.
The final formulation that the court gives to the right to privacy is also problematic. Having recognized the right as being an extension of Article 21, it contradicts this by stating that “none can publish anything concerning the above matters without his consent, whether truthful or otherwise and whether laudatory or critical”. It goes on to say that a violation of this right would entitle the aggrieved person to damages. Does this mean that the right is enforceable against individuals?
The case also creates an exception in the case of public officials with respect to acts linked to their official duty. However, it provides no definition of who a "public official" might be. The Court also holds that public officials “play an influential role in ordering society” and hence citizens have a “legitimate interest in the conduct of such persons”. What a “legitimate interest” might be has again not been defined.
While summarizing its judgment, the Court clarifies that the principles laid down are broad and not comprehensive. In my opinion, this was quite irresponsible on their part since this just leaves scope for the judgment to be misapplied. Subsequent defamation decisions rely on this case when the question regarding the State’s allegation of defamation was not even answered by the Court. The only laudable point of this case was its rejection of prior restraint of defamatory material.
Yogini Oke
The said case looks at the issue of freedom of expression (more specifically freedom of press) vis-a vis the right to privacy of the citizens. Another important issue that this case deals with is the extent to which government can pre-censor a piece of work in cases where it will implicate public officials. The case is regarding publication of an autobiography of a prisoner which criminally implicated several public officials.
While there may be some reservations which I have in the way in which the court has dealt with the issue of privacy, the judgement has made a positive attempt to set the grounds for situations in which freedom of expression may be curtailed due to pre-censorship and the situations which do not warrant such action by the state. It has done so by using the Pentagon case judgement as the precedent .The judgement has made an appreciable attempt at balancing the protection of public officials vis-à-vis the freedom of press.
However, the judgement has taken confusing stands as to the Individual’s right to privacy, by equating the tortious claim against violation of privacy and the Right to Privacy guaranteed under Right to Life under Article 21 of the Indian Constitution. There are several places where the reader may not understand as to whether the court is looking at violation of privacy as an assault on right to life or as a tort, and whether the state is to be held accountable for such claims or the individual violating such right under the tort law. While reading the case, I had a hard time fully understanding as to whose right to privacy is the most sacrosanct here: the prisoner’s or the public officials and who is trying to protect whose right to privacy. However, this confusion may have arisen due to the factual discrepancy in the case. I believe that the initial factual discrepancy has made the tone of the judgement sound not-so-confident at some places, including the last paragraph.
This judgement, however has vehemently opposed political pre-censorship which seems to me the greatest merit of the case, in times when such pre-censorship can be seen rising.
anush...@nujs.edu
R Rajagopal v State of Tamil Nadu - Auto Shankar Case
- Anushree Malaviya
The central question before the Court concerns the balancing of the right to freedom of press vis-a-vis the right to privacy. The judgement appears to be quite progressive on several counts, especially with regard to its definitive stance on the unconstitutionality of pre-censorship, and its importation of the Sullivan test, recognizing the dangers of the ‘chilling effect.’ However, there are a few areas of the judgement that, due to unclarity, pave way for incorrect interpretation - which is evidenced by subsequent decisions.
With regard to the issue of privacy, its especially confusing since the question of its nexus to Article 21 and most importantly its scope in its application is left hanging. The Court makes a distinction between a tortious claim to privacy (between individuals) and a constitutional claim (against the State), but then proceeds to say of in recent times privacy has acquired a constitutional status, without asserting how it comes to this conclusion. The Court cites ‘Kharak Singh v State of Uttar Pradesh’ to justify this stance - however, the majority decision in this case merely referred to the ‘Right to Privacy.’ It was Justice Subba Rao’s dissent that expressly accorded it a constitutional status. In this sense, the judgement is perhaps contrary to the principle of stare decisis.
Furthermore, one of the exceptions carved out in a claim of breach of privacy of public officials was if such information appeared from public records - the Court did not define what fell under the ambit of ‘public records’ and was only later defined in the Phoolan Devi Case.
On the issue of defamation, however, the Court’s stance was laudable. Firstly, deeming prior-restraint to be unconstitutional - reasserting the stance taken in Romesh Thappar and Brij Bhushan. Secondly, it recognizes the ‘chilling effect’ as mentioned in the Sullivan and Derbyshire County Council Cases. Having stated that, however, it becomes crucial to remember that one may be held liable if it is shown that a statement was made with ‘reckless disregard to the truth.’ In USA, this has not proven to be a serious concern. In India, sadly, this has not been the case. This seemingly minor leeway is still leaving scope for the ‘chilling effect’ to not be entirely curtailed. One among the many examples of this is the judgement given in the Jayalalithaa v Penguin Books India Case wherein it was held inter alia that the publisher did not take reasonable enough measures to determine the truth before she published the material in question. Thus, the threshold of ‘reckless disregard to the truth’ - which was intended by the original judgement to be of a reasonable standard - is now being used as a weapon.
In its entirety, the instant case should be seen as a milestone and has resulted in a much needed definitiveness, and has been just in balancing the right of freedom of press and privacy.
Saksham Ojha
R. Rajagopal v State Of T.N.
Saksham Ojha
The Court, while recognising the right to privacy of citizens, rules that the threshold of the veracity of the information that may be published on a public official is not the same as that of an ordinary citizen. The standard in case of the freedom of expression of the press, in case of information relating to public officials, is not to prove the truth. The publisher is simply required to show that there was no ‘reckless disregard for truth’. In breaking down the information presented to the audience into facts that together constitute the publication, the court lowers the burden of proof on the publisher by doing away with the burden to prove the truth of the entire piece being published to the veracity of the facts that put together constitute the entire piece. It can, without a doubt, be argued that the lowering of the burden on the publisher is to avoid a ‘chilling effect’ on the right of expression of the publisher yet a broader analysis would also bring to light the fact the media is not as powerless as the Court may perceive it to be. Where the burden is lowered from proving the veracity of the piece being published in totality to simply the facts that, when put together constitute the publication, the court grants the media an enormous power to influence the public discourse by allowing the media an opportunity to pick certain facts and discard some. The result could be that the media points to a certain conclusion by choosing certain facts and omitting some, which might be in line with the position of individuals and groups which may benefit from a certain conclusion being out in the public. While it is essential that the media plays a role in criticising the state, it is equally important that it does not become a tool to be used by individuals and groups in a game of power. Given that the court recognises that there is a difference in public awareness in USA and the UK and India, it is clear the public in India more gullible and can be influenced by the information being broadcasted. While a media free from the influence of the state is sine qua non for the proper functioning of a democracy, it is imperative that the power of the individuals and groups to use media to manufacture consent is kept in check. Therefore, by lowering the standards, even in case of public officials, the court allows for the possibility of journalistic standards being compromised which may be detrimental to the interest of the populace.
maith...@nujs.edu
Thought Paper 2 : R Rajagopal vs State of Tamil Nadu
Maithili Pai
In the absence of a law governing privacy, the law of privacy in India has been developed through precedent. R. Rajagopal v State of Tamil Nadu is an extremely significant decision in this regard, highlighting the conflict between privacy rights and the freedom of the press as well as the right to know, sometimes also known as the right to receive information from public sources.
In this case, the Inspector General of Prisons tried to prevent publication by a weekly magazine of an autobiography of a prisoner which implicated a number of senior officers in crime, on the basis of it being an allegedly defamatory act and infringing the right to privacy. The Court held that privacy is an unenumerated fundamental right which could be inferred from Article 21 of the Constitution on the basis of precedents. The court further lays down principles regarding the right to privacy. While there is a right to privacy extending to a citizen’s “own, his family, marriage, procreation, motherhood, child-bearing and education among other matters”, and there may be no publication without prior consent, there is no right to privacy for matters of public record. Thus, there is no requirement of prior consent for publication relating to matters of public record.
The decision has cited case law from different countries but mainly US countries. Given that this is a nascent area of law, it was also interesting to observe the reference to articles in law jorumals. While arriving at its decision The Court adopts the standard of “actual malice” with regard to allegedly defamatory criticism of public officials, which has been adopted in cases such as New York Times and Sullivan. Thus, in line with jurisprudence on this issue the standard for an act to qualify as defamatory is heightened. The Court supports its position by highlighting the importance of the freedom of press to engage in discussions about public figures who play a key role in society-
“This is for the reason that public figures like public officials often play an influential role in ordering society. It has been held that as a class the public figures have, as the public officials have, access to mass media communication both to influence the policy and to counter-criticism of their views and activities. On this basis, it has been held that the citizen has a legitimate and substantial interest in the conduct of such persons and that the freedom of press extends to engaging in uninhibited debate about the involvement of public figures in public issues and events.”
From a free speech perspective, I think one of the most noteworthy aspects is the Court’s recognition of the chilling effect of defamation laws, which have been used as a tool for silencing speech. The Court categorically states that the State or its officials have no right to impose restraint prior to publication on the basis of the material being allegedly defamatory. The rights and remedies if any would only arise post publication. The reason stated by the Court for disallowing prior restraint is that no law empowering the State or its officials was brought to the notice of the Court and also that there exists a “heavy presumption against the constitutional validity” of such a law. In my opinion, this aspect of the judgment would have been much better had the Court gone into the fundamental distinction between prior restraint and restraint post publication in the context of Free Speech.
An aspect of the judgment that I find vague and potentially pragmatic is the Court stating that even for matters where consent would be otherwise required, the position would “be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy."In many cases, there may be a very thin line between voluntary and involuntary involvement in a controversy, which I think is demonstrated in the Shilpa Shetty v Magma Publications Case.
On Thursday, June 25, 2015 at 1:04:15 AM UTC+5:30, man...@nujs.edu wrote:
oieshi...@nujs.edu
kruthi...@gmail.com
R. Rajagopal v. State
of Tamil Nadu - Kruthika N. S.
The general theme of debate of
late has been to make speech as free as possible and subject the individual to
least scrutiny by the State. Hence, the discussions so far have mostly dealt
with free speech rights conflicting with state interests, such as public order
or even majoritarian interests such as morality. However, the case of R. Rajagopal v. State of Tamil Nadu has
dealt with a slightly different facet to the debate. This is the conflict
between two rights, arguably one as important as the other – free speech and
privacy. In this thought paper, my primary concern with the case will not be
its treatment of free speech, but its disregard for the conflicting right of
privacy.
In this kind of case, privacy rights of two individuals are at stake: that of the public officials, and that of the subject of the publication. In the present case, the subject was a prisoner who was not alive on the date of publication. The given case is decided in favour of protecting free speech to the extent that what is published was on public record, as the court states in “…the petitioners have a right to publish, what they allege to be the life story/autobiography of Auto Shankar insofar as it appears from the public records, even without his consent or authorisation.” However, I find this statement to be a little loose. First, this publication is allowed without verifying the source of information. Second, there is an explicit statement of needing no consent of the prisoner. Hence, the case allows for publication without considering the personality rights of the deceased.
It is well established that posthumous rights on intangible aspects have been recognised, albeit subject to much debate. While aspects of posthumous interests such as ownership of property and body, being tangible elements of oneself have been robustly safeguarded by the law (although there is considerable debate regarding the body), intangible aspects have always been in the gray. However, building upon the foundations of rights over intangible elements, such as intellectual property, and the reason for their subsistence even after death, it is pertinent to note the reason for such protection – personality rights. In this thought paper, I only urge that while a strong libertarian notion is important, an equally strong dignitarian one is too. Although personality rights are not per se recognised in India, it has been argued that they form an integral facet of the right to privacy, and of course, the right to life itself. Hence, they ought to be protected as much as free speech.
Kruthika N. S.