Biographical works can be written without the permission of their subjects. However, the lack of a requirement for consent does not mean that it is prudent to create a work about another person without their consent regardless of the nature of that work.
This is because despite the fact that obtaining consent is optional, if consent is not obtained, it is much easier for the dissemination of the work to be restrained on a variety of grounds which could include:
(a) A violation of the right to privacy;
(b) A violation of the right of publicity;
(c) The infringement of copyright;
(d) Breach of contract;
(e) A violation of laws relating to obscenity;
(g) Portrayal of the subject in false light; and
(h) A violation of other laws such as those relating to sedition, not hurting the religious sentiments of any caste/class and the maintenance of law and order.
Pertinently, it is not just the subject of the work who may be able to have its dissemination restrained but also a number of other persons such as the heirs of the subject, persons claiming to be the descendants of the subject, the government, and (in the case of films) bodies such as the Central Board of Film Certification.
With respect to the grounds on which publication may be restrained, it is, of course, possible to argue that the alleged violation of rights / offence has not been committed using any of the standard defences available. For example, ‘truth’ may be a strong defence in many cases, while in others ‘public interest’ may be used. However, it is virtually impossible to predict whether or not the circumstances of any particular case would be held to fall within the scope of a valid defence.
In so far as ‘public interest’ is concerned, for instance, Gummow J stated [in SK & F v Department of Community Services  FSR 617, 663] that: "...An examination of the recent English decisions shows that the so-called ‘public interest’ defence is not so much a rule of law as an invitation to judicial idiosyncrasy...".
In light of this, it is important that one not simply assume that a biographical work would be held not to have violated any law or the rights of any person. Further, defences such as the dissemination of the work being in the public interest clearly involve a delicate balance of rights: the right/interest of the public to be informed against the right of the subject of a biographical work to privacy. As a general rule, it would be difficult for public figures to claim that acts of a public nature should be protected.
However, it is possible the situation could be quite different if a work were to portray aspects of their private life even though it has been held that “what may be the private lives of public figures become matte[r]s of public interest” in the case of Khushwant Singh and Anr. v. Maneka Gandhi (AIR2002Delhi58).
Further, it is important to note that even if the subject of a biographical work were consent to its creation and dissemination, such consent may not extend to validating the creation and dissemination of a work in total disregard to his or her right to privacy. [Phoolan Devi v. Shekhar Kapoor 1995(32)DRJ142] As such, although obtaining consent is prudent, it is not an impenetrable shield against allegations of rights having been violated or offences having been committed.
(This post is by Nandita Saikia and was first published at Indian Copyright.)
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