This article is written by Apoorv Agarwal.

Curtailing the Freedom of Speech and bringing the curtains down on the interest of media houses in the lives of ‘public officials’

The above adage has been proved true in the recent Madras High Court verdict. Any time such conflict arises the judiciary invariably reaches for its hammer and probably bans, compels or prohibits the fundamental right to speech and expression over privacy. Whenever there is a conflict between preservation of the fundamental right of speech and expression over the privacy, the never-ending arguments show their light. Anytime the conflict arises between the privacy of public officials and rights of media in relation to their fundamental rights there it has been observed that Judiciary keeps on prohibiting the “Right to Speech and Expression” over the “Right to Privacy”. Although, privacy has been made a fundamental right after the enlightening judgment of K.S. Puttaswamy v Union of India but ignorance and non-maintenance of the right to speech and expression are also not worthy. Judicial Censorship is a dangerous emerging trend in India.

The freedom of press is sine qua non to democracy. The democratic credentials and the maturity of a state are adjudged by the extent of freedom of speech a dissent press enjoys in that state. Since media has been permitted to intrude or divulge details about Queens and Prime Ministers in the foreign country, the Madras High Court’s decision may cause ripples for the crusaders of freedom of speech. Singhania and Partners analyses the implications of the said judgments over media houses and democracy.

Legitimate expectation of privacy

The directory language, connotes that any act of ‘public official’ which has impact on public or is of ‘public interest’ must be propagated and cannot be conceived. Narrowing the scope of protection of privacy with regards to the private life of these public officials indicates that the protection of privacy is only limited to sex, (enter the limitation) and education, children and motherhood.[1] The problem is to what extent can media expose lives of these people without violating their privacy rights?

Grey area between ‘public interest’ and ‘interest of public’

The fact that media cannot be given unbridled license to publish anything and everything will do more harm than good is not denied but what shall be the extent for restriction over such freedom still remains an unanswered question. The Hon’ble Madras High court in order to maintain a balance between right of privacy of these ‘public officials’ and the freedom of press reiterated the basic test of ‘public interest’.There is a very thin line difference between what constitutes ‘public interest’ and ‘interest of public’. Justice Sanjay Kishan Kaul in K.S. Puttuswamy[2] case opined that

“There is no justification for making all truthful information available to the public. The public does not have an interest in knowing all information that is true.”[3]

The Madras High Court propounded ‘exclusively private’ matters are not in ‘public interest’ and should not be published. However, the interpretation was vague and did not define the said term. After the verdict of  Madras High Court the bigger question that comes into picture is can a plea be raised that media houses may not conduct any inquiry for individuals, despite them being public citizens as it would not be in ‘public interest’ and be counted as a violation of privacy rights?

Over-responsibility leading to end of media trials (The tussle between right to know and right to publish)

There has now been a candid conflict between ‘Informational Activism’ and privacy rights which can be summed up as “Public’s Right to Know versus Infringement of Privacy”.[4] The Madras. High court opined that basis that the media houses must show responsible journalism and publish facts that do not violate privacy of a ‘public official’.

We may bat for excessive interference, but how far are we from accepting that institutions in our country would not deliver if they weren’t constantly checked by the media? Notwithstanding the fact that some articles published by these media houses during the course of such investigation may be derogatory to the reputation of the accused, however, the ‘public officials’ have never been restricted to bring action under tort law for such publications. The Madras. High court by placing a blanket injunction has not only violated the rights of free press but has also encouraged ‘public officials’ to decide as to what information should be known the public about them thereby distorting the very essence of democracy and curtailing the freedom of press.

Effects on media houses and the role of law firms

The Hon’ble Madras High Court has also used the gag order quite indiscriminately and this is going to affect the media houses acutely. The court substantiates its decision by holding that the defence of truth was not taken by the media house. It is not disputed that the facts published must be true but the Hon’ble courts have also iterated that media only needs to prove a reasonable verification of published facts; moreover there is no such caveat of it being absolutely true.[5]

The opinion of the Hon’ble Madras High court that media has been completely reckless in determining what should be posted and thus an absolute gag order or blanket injunction being placed to publish any other ‘exclusively private’ about the personal life of the ‘public official’ is erroneous and has restricted the fundamental rights of media houses. Laying no emphasis on defining such terms on which the Hon’ble court has given its verdict the rights of media can now only be safeguarded by law firms because what constitutes ‘exclusively private’ is now open to interpretation. This will not only drag media houses to a lot of privacy infringement cases but will also refrain them from publishing true opinions.

The court appertained the ‘consent theory’ by instructing media to receive consent from such ‘public official’ before 48 hours of publishing any news.  This will overburden the media houses with a lot of responsibilities and restrictions which will finally lead them to refrain themselves from propagating the true colours of justice. Ergo, media houses in order to protect their rights and work freely will have to take support of the law firms so that they still remain an independent entity and are not controlled by thes. Moreover the interpretation of what constitutes ‘public interest’ and ‘interest of public’ is a crucial question and open to interpretation. With the Madras. High Court judgment where the Hon’ble court has considered privacy over such freedom of press the media will now need law firms to defend their publications.

[1]Ms.KanmozhiKarunanidhi v/s …

[2]Justice K.S. Puttaswamy v. Union of India [(2015) 8 S.C.C. 735]

[3]Supra note 4

[4]Nupur Sony, Right to Privacy and Its Infringement by Media(2017)  IJSRE Volume 05 Issue 07<http://ijsae.in/index.php/ijsae/article/viewFile/231/142>accessed 29 May 2017.

[5]R. Rajagopalvs State Of T.N [ 1994 SCC (6) 632]