Rescuing unauthorised biographies

BY PRASHANT THIKKAVARAPU| IN Defamation | 21/04/2014
Once the SC has created a right of privacy over all events not in the public record, it opens the door to censorship of any reporting on such events.
What then of the fundamental right to freedom of speech, asks PRASHANT THIKKAVARAPU. PIX: Auto Shankar

Being an author, movie producer or artist in India today is risky business. Apart from the threat of bans, both legal and extra-judicial, for a number of offences ranging from defamation to “hurting of religious sentiments”, authors and script-writers of a biography or biopic face additional risks. A recent example in this series of cases is the lawsuit against the producers of the movie of Gulaab Gang by Sampat Pal Devi who claims that the movie makers have ripped off the story of her life without her permission and have also defamed her. This isn’t the first time that makers of biopics in India have faced such claims. Earlier releases like The Dirty Picture, Mangal Pandey etc. have faced similar claims by the descendants of Silk Smitha and Mangal Pandey. While an authorised biography or biopic of a dead personality is relatively easy to defend, the legal boundaries get a lot more blurred when dealing with the unauthorised biography of the living.       

“Jayalalitha – A portrait”

Apart from the Gulaab Gang case which will now be litigated in the Delhi High Court, there is already a precedent involving an unauthorised biography, from the Madras High Court, where Penguin was restrained from publishing “Jayalalitha – A Portrait” authored by political journalist Vasanthi. In that case, Jayalalitha, the present Chief Minister of Tamil Nadu, managed to secure an interim injunction restraining Penguin from releasing the book on the grounds that it violated her right to privacy. This judgment of Justice Periya Karuppiah in August, 2012 opened the slippery slope to censorship on the grounds of privacy. The judgment can be accessed over here.

At many levels, unauthorised biographies are akin to reportage. If a public personality can deploy the right to privacy as a tool of censorship against a biography, how long before the right to privacy is used to threaten reporters interested in reporting on the lives of public figures? Should the fundamental right to free speech and expression not be allowed to triumph over a person’s right to privacy and more importantly how does one draw the line between the private and public life of a public personality?

In the book “Jayalalitha – A Portrait”, the author had written about several events from Jayalalitha’s life before she became a politician such as her school life (She won a gold medal!), her medical college interview, her often tumultuous relationships and other details provided by her friends and recorded in other published biographies of her life. In court, the lawyers for the authors and publishers argued that Jayalalitha was a public personality and that the public had a right to know of her life from before she became a well-known figure, since these events possibly shaped her current public personality in significant ways.

Unfortunately, for Penguin, the Madras High Court came to the conclusion that Jayalalitha, even though a public personality, had a right to privacy over events in her life, not published in public records, which took place before she became a public figure.

The “Auto Shankar” case

In the defense of the Madras High Court, its judgment had sound moorings in the case of Rajagopal v. State of Tamil Nadu decided by the Supreme Court in 1994. The work in dispute in this case was the biography of the notorious serial killer Auto Shankar, excerpts of which were due to be published in Nakkeeran. While it is not clear whether the biography was authorised by Auto Shankar, it was clear that the biography had some juicy details on Shankar’s ties with high level bureaucrats because of which the State of Tamil Nadu tried to restrain the publication of the biography.

Amongst other arguments, including the argument that Auto Shankar had not given his consent to the publication of the biography, the State claimed that the publication of the book would violate the right to privacy of bureaucrats. The Supreme Court disagreed with the demand for prior restraints on the publication of the biography and held that the biography, whether authorised or not, could be published as long as it was based on public records and that if any part of the biography was found to be defamatory, remedies would be available under the law of defamation. At the same time, Supreme Court also manufactured, out of thin air, a right to privacy over all those events not in public life and then extended this right to both public figures and ordinary citizens.

In pertinent part, the Court held “….it must be held that the petitioners have a right to publish, what they allege to be the life story/autobiography of Auto Shankar insofar as it appears from the public records, even without his consent or authorization. But if they go beyond that and publish his life story, they may be invading his right to privacy and will be liable for the consequences in accordance with law….” (para 29). Apart from defamation, the Court does not highlight the other consequences for violating privacy but as demonstrated by Jayalalitha, the consequences could result in prior restraints being imposed on unauthorised biographies despite the facts being duly verified and true.

Before the “Auto Shankar” case, the Supreme Court had dealt with the right to privacy only in cases involving State surveillance of citizens. The first two cases (Kharak Singh v. State of U.P & Govind v. State of M.P) involved the constitutionality of police regulations which allowed for rather intrusive surveillance of citizens with criminal records. In those earlier cases, the Supreme Court had recognised a common law right to privacy against the State and also hinted at a fundamental right to privacy against intrusive surveillance by the State. The “Auto Shankar” case was however the first time that the Supreme Court was faced with the issue of privacy of an individual citizen vis-à-vis the exercise of the fundamental right to free speech by other citizens.

Ideally, the Supreme Court should have noted this distinction while building on its earlier precedents on the right to privacy, especially since the constitutional restrictions on the fundamental right to the freedom of speech and expression, do not include “privacy” as a ground for restricting free speech. Unfortunately, for publishers and authors, the Supreme Court cited a litany of foreign judgments from the U.S. and U.K. to create an entirely new dimension of the right to privacy which extended to those events in the lives of citizens and public officials not otherwise found in public records. If the intention was to protect the publication of defamatory material, there is already a law of defamation in India, which provides not only civil remedies but also criminal punishment. However, the right to privacy as deployed by Jayalalitha has the potential to act as a prior restraint on free speech.

Leave the right to privacy to Parliament

Once the Supreme Court has created a right of privacy over all events not in the public record, it opens the door to censorship of any reporting on such events. What then of an account made by a friend or foe of such private events and subsequently recounted to a journalist or an author? What of the fundamental right of free speech? What of the right to write an unauthorised biography? Biographies, especially unauthorised biographies, are important to inform people of the life stories of their leaders and celebrities and such accounts are especially important in the personality driven politics of India.   

If we must create such a right to privacy, let’s leave the job to Parliament, which can introduce privacy to the already long list of vaguely worded restrictions on free speech in Article 19 of the Constitution. Until such time, one can only hope that unelected judges of the Supreme Court are careful while trimming the fundamental rights put in place by elected representatives of this country. 

(The author is an intellectual property lawyer who works for a Delhi based law firm.)

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The new term for self censorship is voluntary censorship, as proposed by companies like Netflix and Hotstar. ET reports that streaming video service Amazon Prime is opposing a move by its peers to adopt a voluntary censorship code in anticipation of the Indian government coming up with its own rules. Amazon is resisting because it fears that it may alienate paying subscribers.                   

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