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Theory that there cannot be prior restraint of media stands diluted after Privacy ruling, Madras HC

Theory that there cannot be prior restraint of media stands diluted after Privacy ruling, Madras HC

Meera Emmanuel

In an order passed earlier this week, the Madras High Court cited the right to privacy – as laid down in the Justice KS Puttaswamy case – to restrain a media house from publishing articles touching upon the private life of Kanimozhi Karunanidhi.

Justice R Subramanian based his ruling, inter alia¸ on the ground that,

The theory that there cannot be a prior restraint or a gag order upon the Press or Media stands diluted, after the judgment of the Hon’ble Supreme Court in Justice KS Puttaswamy’s case.

By way of background, Kanimozhi, a public figure and political representative for the Dravida Munnetra Kazhagam (DMK) party, had brought a suit against a Tamil bi-weekly magazine called Kumudam Reporter in 2014.

In her application, she had sought to restrain the magazine from further publication of defamatory and baseless news articles against her and other DMK leaders.

Senior Advocate P Wilson appeared for the applicant, Kanimozhi. The director/publisher of the Kumudam Reporter magazine was represented by Senior Advocates Sathish Parasaran and R Parthasarathy, whereas Advocate R Amizhdhu appeared for other magazine representatives.

In its defence, the Kumudam Reporter magazine argued that since the applicant was a public figure, it is in public interest that news regarding her political activities be published.

The respondents also sought to vacate an earlier interim injunction passed against them in the case. It was their contention that there cannot be a gag order in the guise of such an injunction. It was argued that the blanket order of injunction denies the magazine the freedom of speech and expression.

However, the Court’s findings indicated that after the Puttaswamy case, the right of free speech and expression is also subject to safeguarding the individual’s right to privacy.

It was emphasised that while there is no municipal law to protect the right to privacy, one cannot lose sight of the Supreme Court’s declaration in Puttaswamay, that the Right to Privacy is a fundamental right.

Notably, in order to buttress this finding, the Court referred to several observations made by Justice Sanjay Kishan Kaul in the Puttaswamy case, including the following.

Regarding the extension of privacy rights against acts of private agencies,

“…in today’s world, privacy is a limit on the government’s power as well as the power of private sector entities.

On the need to move towards a a new order which would offer a pre-eminent position to the right of privacy,

Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new.”

On the distinction between matters that the public is interested in and matters in public interest,

There is no justification for making all truthful information available to the public. The public does not have an interest on knowing all information that is true.

Which celebrity has had sexual relationships with whom might be of interest to the public but has no element of public interest and may therefore be a breach of privacy. Thus, truthful information that breaches privacy may also require protection.

In this context, Justice Subramanian held that the public status of the applicant and her family was not sufficient ground by itself to give a licence to others, and particularly the media, to make defamatory statements citing “public interest”. The Court’s order notes,

“…the Media cannot in the guise of public interest publish anything and everything, which may be interesting…

As has been pointed out by Hon’ble Mr Justice Sanjay Kishan Kaul in Justice KS Puttaswamy’s case, all matters in which the public [is] interest may not be in public interest.”

The Court also found that the magazine had made adverse statements touching on the private life of the applicant, which were unrelated to any public interest.

In this light, the Court found cause to criticise the respondents for attempting to pass off wild imagination as “responsible journalism.”

Given the above findings, the judge opined that the magazine could not be allowed to go on publishing articles, which do not relate to the public life of the applicant. Ultimately, the Court concluded,

“…though there cannot be a blanket injunction as rightly contended by Mr Sathish Parasaran, at the same time, there cannot be an order in favour of the respondents enabling them to publish anything and everything in the guise of public interest.

Therefore, the earlier interim injunction of the Court against the magazine was made absolute.

Consequently, the magazine has been restrained from publishing anything touching upon the private life of the applicant without her prior consent. While seeking her permission for the same, any response by the applicant should be included prominently in the article. However, if no response is received within 48 hours, the magazine would be at liberty to publish the article.

Read copy of order below: