22 April 2016

Gag Orders: Privacy v. Defamation

First thoughts...

Thinking of privacy under Indian content law (which hasn't really changed since this 2012 piece), and am rather curious about how a matter with a factual matrix comparable to that in PJS (now making its way through the UK courts) would play out in India; there, a gag seems to be being sought to restrain celebrity identification in relation to the reportage of sexual conduct considered private (even though identification has already taken place online as well as beyond England and Wales).

This bears no relation whatsoever to PJS which merely set this line of thought into motion:

In recent years, there has been far more frequent mention of gag orders in India to restrain the publication of explicit content and to prohibit the reportage of sexual conduct. For the most part, though, discussions seem to revolve around defamation, civil and criminal, and not privacy, either civil or criminal. In all likelihood, that being the case is in consonance with cultural expectations, and in consonance with legal requirements. Section 228A of the IPC which protects the identity of women raped, for example, is often simply ignored (which is hardly surprising in a society that doesn't go out of its way to respect the rights of women who have been raped). Section 499 of the IPC which deals with defamation, on the other hand, suggests that it is not enough for impugned content to be accurate to permit its publication without legal consequence: for publication to be legitimate under that provision, it should also be in the public interest.

It's hard not to conclude that we likely do have socio-cultural issues to address.

On one hand, in considering the best course of action to address the publication of explicit material or the reportage of sexual conduct, our thoughts appear to turn first to defamation presumably because we link the conduct (deemed unacceptable) to a culture of shame (deemed acceptable). On the other hand, barely recognizing privacy in our daily lives, not having a privacy statute, and having jurisprudence be developed as we go along, means that there's very little certainty about how an action relating to privacy would work out. It also means that there is no explicit statutory statement of when it is legally acceptable to breach another person's privacy through the publication of content: surely, there should be no right claim that one's privacy is breached by the reportage of abuse allegedly committed by one, for example.

Given that privacy and defamation are often turned into kedgeree in discussion, this probably isn't relevant from the point of view of practice. Nonetheless, as a matter of strategy, it could be worth asking whether it makes sense to pursue arguments relating to privacy at all except possibly to support those relating to defamation (given that arguing for privacy in non-abusive situations is particularly dicey in the almost complete absence of a statutory framework upon which to rest such arguments). That said, if one were to develop arguments relating to defamation, it's probably also worth asking, though perhaps not in relation to the individual case in isolation, what the broader implications of such arguments are, whether they could further strengthen possibly unjustifiably repressive aspects of society, and whether it's possible to develop defamation arguments without claiming that publication is, in such cases, almost in and of itself defamatory.

(This post is by Nandita Saikia and was first published at Indian Copyright.)


This site is supported by FrontierNxt.