Press and right to privacy of public figures:The law revisited

Whether those holding public offices can enjoy the same level of privacy as guaranteed to the other citizens by the Constitution, is a question perpetually doing the rounds among law circles. In a recent decision the Madras High Court revisited the issue in an allegation of invasion of right to privacy of the State Minister by the press having published his photograph on a daily basis along with the photograph of his wife and child. While the High Court declared the bar with respect to invasion of privacy of public figures was higher than the ordinary citizens, given the public offices they held, the invasion nonetheless could be alleged with respect to wife and the child. 


The High Court inter alia observed as under;

13. The Apex Court has held in a decision reported in (1994) 6 SCC 632 (R.RAJAGOPAL ALIAS R.R.GOPAL AND ANOTHER V. STATE OF TAMIL NADU AND OTHERS) as follows:

"26.We may now summarise the broad principles flowing from the above discussion:

(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. 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, childbearing and education among other matters. None can publish anything concerning the above matters without his 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. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

(2) 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. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., 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.

(3) There is yet another exception to the rule in (1) above indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, 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 (member of the press or 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 have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) 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 their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule. 

 (4) So far as the Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them.

(5) Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media.

(6) There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media."

14. This Court had an occasion to follow the above decision in a case reported in (2006) 2 M.L.J. 689 (R.RAJAGOPAL @ R.R.GOPAL @ NAKKHEERAN GOPAL AND ANOTHER V. MS.J.JAYALALITHA AND ANOTHER) and has held as follows:

"29. The fundamental right of freedom of speech is involved in these proceedings and not merely the right of liberty of the press. If this action can be maintained against  newspaper, it can be maintained against every private citizen who ventures to criticise the ministers who are temporarily conducting the affairs of the Government. In a free democratic society those who hold office in Government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind. As observed in Kartar Singh's case (supra) the persons holding public offices must not be thin-skinned with reference to the comments made on them and even where they know that the observations are undeserved and unjust, they must bear with them and submit to be misunderstood for a time. At times public figures have to ignore vulgar criticisms and abuses hurled against them and they must restrain themselves from giving importance to the same by prosecuting the person responsible for the same. In the instant case, the respondents have already chosen to claim damages and their claim is yet to be adjudicated upon. They will have remedy if the statements are held to be defamatory or false and actuated by malice or personal animosity. 

30. As observed in R.Rajagopal's case (supra) the right to privacy has two aspects which are but two faces of the same coin. First the general law of privacy which offers a tort action for damages resulting from an unlawful invasion of privacy and secondly, the constitutional recognition given to the right to privacy which protects personal privacy against unlawful Government invasion. Though the right to privacy can be characterised as a fundamental right, as held in R.Rajagopal's case (supra) it is not an absolute right. In Time, Inc v. Hill 385 US 374 it was pointed out that in the case of public officials, insofar as their official function is involved, they are substantially without a right to privacy and factual error and content defamatory of official reputation or both, are insufficient for the award of damages for false statements unless actual malice knowledge that the statements are false or reckless disregard of the truth is alleged and proved. In a democratic set up a close and microscopic examination of private lives of public men is the natural consequence of holding of public offices. What is good for a private citizen who does not come within the public gaze may not be true of a person holding public office. What a person holding public office does within the four walls of his house does  not totally remain a private matter. We agree with Mr.Jothi that the scrutiny of public figures by media should not also reach a stage where it amounts to harassment to the public figures and their family members and they must be permitted to live and lead their life in peace. But the public gaze cannot be avoided which is a necessary corollary of their holding public offices.

31. We are also unable to accept the submission advanced by Mr.Jothi that the appellants should be asked to seek prior verification from the respondents before publishing any articles and publish the denial, if any, of the respondents. According to Mr.Jothi rule of prior verification is laid down in R.Rajagopal's case (supra). We are afraid that the submission of the learned counsel is based on total mis-interpretation of the observations of the Supreme Court. The Supreme Court has not laid down that the prior verification of the facts is must in all such cases. All that the Supreme Court indicated is that the proof that the member of the press or media acted after a reasonable verification of the facts would be sufficient. However, at the same time, it must be noted that the Supreme Court in R.Rajagopal's case (supra) has clearly held that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education, among other matters and none can publish anything in reference to the above matters without his/her consent whether laudatory or critical."

15. It would be quite clear that there is no law empowering the State or its officials to prohibit or to impose a prior restraint upon the press or media and when a person is holding a public office, the comments and criticisms cannot be avoided since it is a necessary corollary. If such criticisms are attempted to be avoided, it would amount to political censorship. The acts done by a person in public life could be categorized as private and public. The acts and conduct of a person who holds office in Government and responsible for public administration are always open to criticism. When a publication is made in the press commenting or criticising the acts and conduct of a person which is connected to his public office and life, it cannot be made a condition that a prior verification of the facts should be done. But it would suffice if the media or the press has acted after a reasonable verification. But, at the same time, it should not be forgotten that the Apex Court in the case reported in (1994) 6 SCC 632 had made it clear that every citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters and no one can publish anything in reference to the above matters without his or her consent whether laudatory or critical.

16. In the case on hand, the following features are noticed by the Court. Admittedly, the first appellant is a Cabinet Minister of the Union Government. The documents placed by the appellants would clearly indicate that the respondents were constantly publishing the  photographs of the Minister with write-ups on different dates as mentioned above in the front cover page of their magazine. No doubt, the respondents had justification in levelling comments and criticisms as it would fall under the Freedom of Speech so long it is connected to or concerning with his official position as a Union Minister. But the instances are noticed which did not relate to his public life. The respondents have published the family photograph of the appellants. That apart, there was no necessity for publishing the photograph of the minor child. The UN Convention on the rights of the child 1989 has clearly adumbrated the rights of the child namely the right to preserve the identity, nationality and the family relations. The respondents had no explanation to offer why and under what circumstances, they published the photograph of the minor child. It is recorded in the impugned order that they gave an oral undertaking not to publish the photograph of the child in future. But, it is a matter of surprise to note that even without a written undertaking, the trial Court has closed the application in that regard. No doubt, it is an act of infringement of the right of the child by exposing the identity and the family relationship of the first appellant and thus, inserting the photograph cannot but be termed as an abuse.

17. The respondents have published the photograph of the second appellant, who is the wife of the first appellant. Apart from that, the news items published by the respondents would disclose the allegations made against her. It is not the case of the respondents that she is a public figure or she is in a public domain, and hence it has got to be termed that the publications made against the second appellant were infringement of her right to privacy which is guaranteed by the Constitution in her favour.

18. A scrutiny of the magazines would also indicate that there were instances in which the privacy of the first appellant was also invaded. For example two photographs of the Hon'ble Chief Minister and the first appellant were printed in the front cover page of the magazine dated 24.12.2008. A comparison of both the photographs and in particular, the second one, would no doubt seriously damage the image of the first appellant in the minds of the readers of the magazine. At no stretch of imagination, the respondents can be allowed to say that it was connected to or concerning with his public life. It is not the case of the respondents anywhere in the course of the entire counter that they made any verification with the appellants before making such publications.

19. When a citizen contests in an election and is voted to power and he enjoys the position in view of the confidence originally reposed on him by the people, he becomes more accountable to them. Higher the post and position more should be the degree of accountability. In a democratic society like ours, the accountability and transparency have a vital role to play. When a person is elected and reaches a high position and when he satisfies the test of accountability and transparency, naturally the confidence reposed on him by public would all the more increase than what was reposed on him before his coming to the position. Hence the contention put forth by the learned Senior Counsel for the appellants that in view of the official position of the first appellant as a Union Cabinet Minister, he is in a better position than a common citizen and hence the respondents should not give him the equal treatment cannot be countenanced.

20. Equally the contention put forth by the learned Senior Counsel for the respondents that they enjoy freedom of press and hence they could publish anything and everything cannot be countenanced. The respondents cannot be allowed to take shelter under the Doctrine of Freedom of Press, and the same cannot also be extended to publishing exclusively private affairs of the appellants calling it as connected to or concerned with public life.

Have a look at the decision.