Recent developments in court cases have raised questions on whether a public figure’s right to privacy can prevail over the media’s freedom to report.

The media has always stressed that its right to report in the public interest stands above other rights such as the right to privacy.

In India, this conflict between the two rights only emerged last year. In a Supreme Court judgment on 24 August 2017, nine judges ruled unanimously that the right to privacy was a fundamental right.

The Madras High Court in a recent ruling, which is the first of its kind, has now decided that the right to privacy trumps the right to freedom of expression of the media. This has set the cat among the pigeons and left experts and advocates of media freedom worried.

“The High Court ruling is erroneous because it mistakenly assumes that the privacy judgment curtailed the freedom of expression …but it was inevitable,” T. Prashant Reddy, an Associate Professor at the National Academy for Legal Studies and Research, told Asia Times.

Notably, the Indian Constitution doesn’t mention freedom of the press; It is derived from Article 19 (1) of the Constitution, which guarantees Indian citizens the right to freedom of speech and expression.

Privacy trumps free speech

The Madras High Court’s ruling came in a case filed by prominent politician and MP Kanimozhi against the Tamil bi-weekly magazine ‘Kumudam’. The magazine has been reporting on her family’s affairs –personal, financial and political – for a considerable period of time.

Kanimozhi argued that the magazine was carrying baseless allegations and imputations, all with a malicious intent to defame her and her family. Citing the right to privacy upheld by the Supreme Court, she asked for a blanket injunction against any reporting on her and her family members by the magazine.

The High Court declined the MP’s plea for a blanket injunction but permanently restrained publication on exclusively private matters. It ruled that if the magazine published anything on her family, it would have to give her equal space for rebuttal, and give it a prominent space. Otherwise, it was free to report on the politician’s public life.

Pamela Philipose, a senior journalist and Readers’ Editor of The Wire news website said although the Madras court’s ruling did well to recognize a female public figure’s right to privacy, it had the potential to imperil press freedom. That was because every public personality would now cite the ruling as a precedent to secure injunctions against reporting. This would place a severe impediment on media outlets trying to bring about transparency in public life, she said.

Other prominent rulings

According to the court, which quoted Justice Sanjay Kishan Kaul’s opinion in the right to privacy case — anything which affects a person’s dignity and autonomy falls within the realm of her privacy, and must be zealously protected by law. The core of the court’s reasoning was: “The Honorable Supreme Court had while recognizing the right of privacy is a fundamental right, in fact called for a new order, which would offer a preeminent position to the right to privacy.”

The High Court concluded that the principle that a lasting injunction or gag order cannot be granted stood diluted after the Supreme Court’s judgment in the right to privacy case. While doing so, the court did not go into the prevailing law on restraining publication about a public figure’s life as laid down in the celebrated Auto Shankar case by the Supreme Court. In that landmark case, the judges held that public figures are entitled to a lesser degree of privacy than ordinary individuals.

The High Court also didn’t go into the apex court’s constitution bench ruling in the Sahara vs SEBI (Securities and Exchange Board of India)  case, which mandated that injunctions against publication can only be temporary, but only in cases where publication would have caused obstruction to justice in pending cases.

Interestingly, while the High Court quoted Justice Kaul’s words to restrain publication, Kaul himself ruled against gaging speech as a Delhi High Court judge. He authored a ruling in the Khushwant Singh case in which he held that the correct remedy is not to gag speech, but to provide for damages in cases where privacy is breached.

Experts’ flay ruling, express concern

Meanwhile, lawyer Gautam Bhatia, a constitutional expert and author of a book on free speech, criticized the court for its “free-floating conclusion” that the right to privacy judgment allowed judges to impose restraints on publication and press freedom.

Bhatia asserts that in the privacy case, the apex court “was never dealing with the issue of balancing competing rights (in this case privacy and the freedom of speech), and didn’t change the law in this regard in any manner”, he wrote.

Prof. Reddy faulted the Supreme Court for not clarifying whether the right to privacy should apply only “vertically” (that is, it can be enforced by a citizen only against the State) or “horizontally” as a common law right — which one citizen can enforce against another citizen or organization. He said that the absence of any clarification created “a rabbit-hole in which the freedom of expression could fall into.”