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Debilitating Enactment

The new privacy law may choke information    

Debilitating Enactment
outlookindia.com
-0001-11-30T00:00:00+0553
JUDGES do make law; and, they most certainly did so in the Auto Shankar case whose implications for civil liberties and the media have been most imperfectly understood. Although thecase concerned prison officials trying to muzzle the weekly magazine Nakheeran from writing about their activities in prison, Justice Jeewan Reddy invented a new right of privacy which has devastating consequences for the media. Every citizen has the "right to safeguard the privacy of his own, his family, procreation, motherhood, child bearing and education among other matters". While even this catalogue of rights will have far-reaching consequences for all kinds of family planning and other programmes, what is crucial for the media is the next element:

"None can publish anything concerning the above matters without his (that is, 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."

This is more protective than the law of defamation. But, by saying that a violation of the right to privacy will give rise to an action for damages, it is not clear whether the courts will injunct publication of such material on the principle (familiar to defamation law) that the courts will not 'gag' the press if damages are an adequate remedy. And, it is conceivable that they would take the view that damages alone would not be an adequate remedy in these cases.

But, this new 'right' (or 'cause of action' as lawyers call it) is subject to exception, the first exception based on the principle of consent in that express or assumed consent would be a defence to such an action. In the sense that the person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. The second exception is that whatever exists in public records may be published. There too, there are exceptions in favour of non-publication of news about women who are "the victim of sexual assault, kidnap or abduction or such like offences". It is arguable that this exception is too narrow and does not take into account the importance of 'confidentiality' of material in public records. The third exception is "not really an exception but an independent rule". Officials cannot claim a right to privacy in respect of their official actions.

Although the court insisted that it was declaring "broad principles", it has laid down a new reporting regime for writing about the private lives of people that threatens to put 'gossip columnists' and nosey neighbours out of business except in the cases of those who seek and get publicity. And, lest journalists think that they can report on everything else, Justice Reddy makes it clear that all the other restrictions on the press will continue to operate.

Whether judges should legislate in this way is besides the point. For, the Supreme Court has done so. One more restraint has been placed on the media—in that crucial area of public inquisitiveness.

Maneka Gandhi's new case against Khushwant Singh raises all these controversies in abundant measure. Did Gandhi invite herself into the public eye? Was Khushwant Singh telling the truth? If so, is the truth irrelevant? Can an entire publication be stopped while a long-drawn suit traverses the court? Would the answer to all these questions be any different if the story were about the stormy private life of a cabinet minister? Whom will this protect? The truly innocent, or, those who can litigate easily and suffer publicity as sport.

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