On Media’s Right to Publish Private Matters

Media’s right to publish citizens life & activities

The extent of media’s right to publish matters relating to citizens unauthorised account of life and activities, under the freedom of press guaranteed by Article 19(1)(a) of the constitution, was considered by the Supreme Court (SC) in R. Rajagopal v State of T.N (known as Auto Shanker case).

The other matters considered in the case were what are the remedies open to a citizen in such a case of infringement, whether such a writing amounts to defamation, whether the government can maintain an action for its defamation, whether the government has any legal authority to impose prior restraint on the press to prevent publication of such material defamatory of its officials, etc

Facts of the case in short

The petitioners were the editor, associate editor, printer and publisher of a Tamil magazine, “Nakkheeran”. They sought a direction from the court to the Government of Tamil Nadu & its functionaries not to interfere with the publication of an autobiography of a prisoner, Auto Shanker, in their publication.

Auto Shanker was convicted of six murders and sentenced to death. The auto-biography was written when he was in jail. He wanted it to be published in the petitioners’ magazine.

Nakkheeran widely publicised about the proposed publication of the autobiography. On learning it the officials of the prison, who expected damaging stories about them in the autobiography, forced Shanker to request the magazine not to publish it.

The Petitioners then filed a petition seeking court’s intervention in preventing the respondents from violating the magazine’s and the prisoner’s Freedom of Expression.

Principles the Supreme Court enunciated

Right to privacy is inherent

The SC found that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21 of the Constitution. It is a “right to be let alone”.

A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education, among other matters.

No one can publish any private account

No one can publish anything concerning the above matters without the citizen’s consent whether truthful or otherwise and whether laudatory or critical.

If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages.

If a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy, then the position may be different.

Publishing based on public records permissible

The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records.

The reason is that once a matter becomes a matter of public record, the matter loses its private nature and it becomes a legitimate subject for publication or comment by media.

Female victim’s account not to be published

In the interests of decency protected by Article 19(2) of the Constitution, an exception must be carved out to the above rule, that a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media even if her story gets into the public records.

Officials cannot claim privacy

In the case of public officials, it is obvious that the right to privacy, or the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties.

This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth.

In such a case, it would be enough for the defendant (the member of the media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true.

Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would be liable for damages.

In matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court, and Parliament and legislatures protected as per their privileges under Articles 105 and 104 respectively of the Constitution of India, are exceptions to this rule.

Government cannot maintain suit for defamation

The Government, local authority and other organs and institutions exercising governmental power cannot maintain a suit for damages for defaming them.

Official secretes to kept as secret

However, the Official Secrets Act, 1923, or any similar enactment or provision having the force of law has to be respected by the media.

Principles herein are not exhaustive

The principles above mentioned are only the broad principles. They are neither exhaustive nor all-comprehending.

The concepts dealt with in this case are still in the process of evolution.

In summing up

In short, there is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press or media.