28 June 2019

#FOEIndiaSeries | 9. Sexual Abuse and Reportage

Free Speech in India

This is one of 14 articles (available via this page) through which I hope to share a sense of free speech and content law in India. Part I of this series considers the socio-legal basis of free speech law in India, Part II explores what regulation, both legal and social, says and, in some cases, what it should perhaps say while Part III, finally, looks at the processes through which free speech regulation is implemented in India.

Wherever possible, I've tried to avoid mention of matters I've been involved in myself. I've also tried to ensure that the series is accessible to non-lawyers.

The terms ‘child pornography’ and 'revenge porn' have been used simply because of how common they are, both in popular discourse and occasionally at law, even though neither term is accurate. 'Child porn' refers to indecent images of children and, where real children feature, is evidence of child abuse in and of itself. 'Revenge porn' generally refers to the non-consensual release of explicit imagery of a woman by a former partner of hers. It, too, is a manifestation of abuse, and is far more an expression of power than an expression of pornography.

Of course, none of the content of these articles is professional advice and it should not be relied on for any purpose. It is tinged with personal opinion, may not be accurate, and is incomplete.  

Posts in the Series

Part I.    The Foundations of the Law

1.    The Parameters of Indian Discourse    
2.    The Backbone of the Law    
3.    Legislative and Other Input

Part II. Regulating the Substance of Speech    

4.    Creative Content and Trade    
5.    Reputation and Honour    
6.    Keeping the State Functional    
7.    Maintaining Law in a Plural State    
8.    Women’s Existence in Patriarchy
9.    Sexual Abuse and Reportage
10.    Privacy and Rights-Based Legislation    
11.    Explicit Content: Choice, Consent and Coercion    
12.    State Paternalism and Public Interest

Part III.  The Processes of the Law    

13.    Keeping Track of Others’ Content
14.    The Mechanics of Regulation


Part II. Regulating the Substance of Speech


9. Sexual Abuse and Reportage


Jokes about rape may exist in a grey area. However, sexual abuse itself does not exist in a grey area: it is clearly illegal. Although it is sometimes couched in language that seems hopelessly archaic, as the crime of ‘outraging the modesty of a woman’ indicates, the law recognises assault, rape, and other forms of sexual abuse as being criminal acts, depending on who is targeted, and it regulates speech in relation to such crimes.

There are ongoing debates about what the scope of the law should be and whether such acts as marital rape should be considered to be crimes. Thus far, the response to suggestions that marital rape be criminalised has been a resounding ‘No’ — although it recognises sexual abuse, criminal law has been quite firmly grounded in patriarchy, and it has had a tendency to focus on addressing abuse by men against those women whom they would not traditionally have been considered to ‘own’. It has consequently been extremely resistant to treating marital rape as a crime.

Until 2012, criminal law also failed to adequately address child sexual abuse against boys: it primarily relied on a controversial provision of colonial vintage in the Penal Code criminalising ‘unnatural’ acts to counter such the sexual abuse. Due to this, those who were homophobic often came to use the argument that the law criminalising so-called unnatural acts was necessary to protect children. The factual basis which may have granted a thin veneer of validity to that argument was peeled off by the coming into force of the 2012 Protection of Children Against Sexual Offences Act but it didn’t automatically cause everyone to stop talking about the supposed necessity of the law essentially criminalising homosexuality. Thankfully, the Supreme Court saw matters differently and decriminalised homosexual acts between consenting adults in 2018.

There has been progress made and despite lapses and lacunae in the law itself, and despite an assortment of people making questionable legal arguments, there are a number of provisions in the law which deal with sexual abuse including abuse through speech. They aim to address abuse itself and to protect those who have been subject to sexual abuse. The latter aim is realised by placing restrictions on reportage and by restricting the nature of questions which may be asked of those who allege that they have been subject to abuse. In a rape prosecution, for example, the alleged victim cannot be asked questions relating to her previous sexual experience to prove that she had consented or to establish what the ‘quality of consent’ may have been.

When it comes to abuse itself, Section 509 of the 1860 Penal Code criminalises words, gestures, and acts intended to insult the modesty of women stating:
“Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.”
The provision applies squarely to any form of unwelcome sexual speech made in the presence or hearing of a woman although it is most commonly associated with street harassment which almost invariably takes on sexual hues. There are arguments which are occasionally made that the provision is an overkill considering that it applies to speech alone even if it is unaccompanied by any form of physical contact. However, such arguments tend to discount the adverse effects of abuse even if it is verbal. Additionally, they don’t consider that the form of abuse does not necessarily conform to a hierarchy.

The form which abuse takes may simply be one of the alternatives which an abuser may choose from depending on what he thinks he is most likely to get away with and what is most convenient to him. A buffet of alternatives, so to speak, instead of a hierarchy in which the abuser necessarily escalates from an ostensibly less severe form of abuse to a more severe form.

Further, the form which abuse takes does not necessarily speak to the effect it has on the person who is subjected to it, and cannot by itself be considered ‘benign’ simply because it doesn’t involve any form of physical contact.

Fortunately, Section 509 is not the only provision in the 1860 Indian Penal Code which sees verbal abuse as being problematic. Leaving little to interpretation or imagination, and leaving open the possibility of its being used to address street harassment in particular, Section 294 of the Penal Code categorically states:
“Whoever, to the annoyance of others — (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.”
Further, Section 503 of the Penal Code prohibits criminal intimidation while Section 507 of the same statute prohibits criminal intimidation by anonymous communication. Section 354A of the Code which was introduced in 2013 too criminalises certain forms of sexual harassment including demands or requests for sexual favours, and the making of sexually-coloured remarks.

Depending on precisely what is said, it may be possible to invoke these provisions in the Penal Code to counter verbal abuse. The essence of the provisions also often finds reiteration or support in other laws too. For example, the 2013 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act defines sexual harassment in terms remarkably similar to those of the Indian Penal Code, and the 1989 Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act makes special mention of both Sections 509 and 354A in its attempt to address atrocities against women who belong to scheduled castes and tribes by those who do not.

Apart from the provisions of 'pure' criminal law is the hybrid of criminal and civil law that is the 2005 Protection of Women from Domestic Violence Act. Although it does not criminalise such speech or contain a specific category of verbal sexual abuse, the statute recognises verbal abuse as a form of domestic violence, and defines it so as to include: ‘(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and (b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested’ in its text.

The Domestic Violence Act also notes that sexual abuse is a form of domestic violence and considers ‘any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman’ to constitute such abuse. If one were to consider the two forms of abuse together, it would emerge that despite the lack of a statutory category dedicated to it, verbal abuse of a sexual nature is considered to be domestic violence by the law.

As such, there are a variety of circumstances in which speech would constitute sexual abuse, and where it is legally restricted if not prohibited. Further, in cases where sexual abuse is either committed or alleged to have been committed, there are often safeguards in place which are intended to protect the identities alleged victims as well, in some cases, as alleged perpetrators.

The identities of women who are raped are protected by both criminal and civil law. Tort law would likely treat the non-consensual disclosure of their identity as a breach of privacy while, under criminal law, Section 228A of the Penal Code (which was first introduced in 1983 and subsequently amended in 2013) prohibits the disclosure of the identities of persons against whom certain crimes are alleged to have been committed, specifically crimes it says are punishable under the following provisions:
  • 376: Rape
  • 376A: Punishment for causing death or resulting in persistent vegetative state of victim
  • 376B: Sexual intercourse by husband upon his wife during separation
  • 376C: Sexual intercourse by a person in authority
  • 376D: Gang rape
  • 376E: Punishment for repeat offenders
Section 228A of the Penal Code not only disallows victims from being named but also disallows the publication of information which could lead to their being identified, and violating the provision is punishable with imprisonment of up to two years and a fine. However, this does not mean that women who are raped can never be identified publicly.

An adult woman who has been raped may disclose her own identity or provide written authorisation to someone else to do so. The disclosure of identity is also permissible if it is by or under a written order of the investigating police officer or the officer in charge of the police station investigating a rape case for the purpose of the investigation, assuming the officer acts in good faith.

However, if the raped woman is a minor or is dead or is of unsound mind, her identity may only be disclosed by her next of kin or someone authorised by them to the chairman or the secretary of a recognised welfare institution or organisation. As such, the law does not allow the family of the victim of a woman who is killed due to rape to directly disclose her identity to the press or the general public although, in practical terms, it is possible that no-one would rush to file a complaint against, say, the parent of a dead, raped woman who speaks to a journalist.

Despite Section 228A of the Penal Code being intended to protect women, it contains an element of state paternalism, and has the potential to take the narrative out of the hands of the family of a woman who is raped and killed which is not necessarily ideal.

Also, a loophole which emerged in the law in due course was the lack of a statutory prohibition which kept courts from mentioning the names of women who were raped in their judgments. The Supreme Court tried to address this problem although its attempt was not entirely successful in masking their identities. In a number of cases, the State’s apex court said:
“We do not propose to mention name of the victim. Section 228-A of the Indian Penal Code, 1860 (in short the 'IPC') makes disclosure of identity of victim of certain offences punishable. Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D [dealing with rape] is alleged or found to have been committed can be punished. True it is, the restriction does not relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object of preventing social victimisation or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court. High Court or lower Court, the name of the victim should not be indicated we have chosen to describe her as 'victim' in the judgment.”
Printing or publishing any matter in relation to any court proceeding with respect to rape without the Court’s previous permission is an offence punishable with imprisonment of up to two years and a fine. However, the relevant provision also clarifies that printing or publishing High Court or Supreme Court judgments would not amount to an offence within the meaning of the Section. The effect of this is that, if a raped woman’s name were disclosed in a High Court or Supreme Court judgment, it could perhaps be disclosed through the printing or publishing of the judgment without attracting the penal consequences ordinarily envisaged by Section 228A.

There was a time when the clarification allowing judgments to be published would not have mattered much given that judgments were usually buried in expensive hard copies of journals which made their way to lawyers’ chambers, legal libraries, and almost nowhere else. Times have changed though, and with almost any judgment now available online free of charge, the loophole inadvertently facilitates the public disclosure of the identities of raped women.

Those who publish High Court and Supreme Court judgments are not under any particular pressure worth mentioning from the provisions of Section 228A of the Penal Code to redact names should they find the identities of raped women in judgments, although the women may still be able to sue them in civil courts for revealing their identities. Whether or not they would be successful if they took that path is, however, not guaranteed although experience indicates that the courts would be sympathetic to women who had been raped.

In a matter where a woman who had been raped invoked the right to be forgotten and filed writ petitions to have her name redacted from copies of the judgment published online, it was reported that, in 2017, the Kerala High Court did, in fact, require that her name be removed.

It is obvious that revealing the identity of a woman who has been raped is a breach of a privacy although she may be hampered in asserting her privacy by the fact that India does not have a privacy law. In general, tort law would likely support her claim. Further, the courts would recognise that she has a fundamental right to privacy following a 2017 judgment of the Supreme Court which not only clearly recognised the right but also developed a coherent jurisprudence of privacy for the Indian corpus juris.

Somewhat puzzlingly, in holding that the law of criminal defamation is constitutional in 2016, the Supreme Court reproduced examples made by a party of instances where truth should not be an adequate defence were a defamatory comment to be made. Amongst the examples were ‘an imputation that a person is a victim of rape’ — in doing so, the Supreme Court indicated that it found such an imputation problematic and potentially defamatory.

Thus, women who are raped have a number of options available to them relating to the rights to be forgotten and to privacy, and the right not to be defamed. The possibility of initiating action in relation to defamation though perhaps unwittingly betrays what lies at the heart of discussions about whether the identities of women who have been raped should be protected at all. Having been raped shouldn’t be stigmatising; having committed rape is what should be stigmatising.

Unfortunately, rape is not viewed by society as most other crimes are — those who are subject to the crime are often the ones who are stigmatised while those who commit the crime may face no repercussions at all. The lack of accountability stems from a combination of legal and social issues which, as is usually the case, tend to feed each other: rape is a massively underreported crime in no small part because of the difficulties in accessing both law and healthcare. When it is reported, proving it is difficult because of evidentiary issues.

Even if the crime is proved, the person raped is often still viewed with a combination of suspicion and derision or, at best, with pity — the term ‘zinda laash’ is part of our cultural lexicon. It is not a term which women who have been raped would necessarily be comfortable having their identities coupled with. After all, being referred to as a living corpse is hardly complimentary.

To make matters worse, if the rapist, alleged or proved, happens to be a well-placed man, the hurdles which persons who are raped face in their attempts to obtain justice become far more difficult to surmount. Adult men raped by women may not be able to access even the semblance of justice through the criminal law provision which defines rape since the Penal Code envisages rape as a crime committed by men against women. As for women: there exists a broad (though not absolute) marital rape exception. That aside, even women, to whom the law is in theory available, often find it a combination of impossible and impractical to navigate legal processes which could potentially see men who have raped them being jailed.

In such circumstances, women are often left with little more than whisper networks which at least serve the function of helping them to warn each other of men who are predatory, and perhaps of keeping some women from being preyed on. The problem with such networks, however, is that there are always women not in the in-group and who are left out of discussions which could potentially warn them of those who have a history of harassing others. In the context of sexual harassment, 2017 saw this concern partially being addressed through the publication of online lists of men alleged to have committed harassment.

The lists of sexual abusers came with their own problems though: they didn’t always differentiate between men who were accused of having committed harassment and men who had been proven to have committed harassment, the details of what the listed men had allegedly done were sometimes missing, the accusers were often anonymous, and there was no clear mechanism through which men who featured on the lists could be held accountable or, if they had been unfairly mentioned, could clear their names.

Considering the difficulties women face in having sexual abuse addressed, the publication of the lists was both unsurprising and understandable although if their legal defensibility was questioned by many people. There were those who mentioned that even those accused of sexual harassment have a right to confidentiality under the country's anti-sexual harassment law, as indeed they do in some circumstances. There was also no dearth of comments made to the effect that the publication of such lists is in and of itself defamatory but that claim was not immediately tested in a court.

Assuming that the lists were demonstratably accurate, had proceedings been initiated in a civil court, truth would have been a defence. And if criminal law had been invoked in response to the publication of lists of alleged sexual harassers, it is possible that the publication would have been held not to be defamatory on account of the exceptions to the crime of defamation.

Apart from the first exception to defamation defined in Section 499 of the Penal Code stating that an imputation of truth which public good requires to be made or published would not be defamatory, the ninth exception exempts good faith imputations for the protection of one’s own or others’ interests from attracting liability. It reads:
“It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.”
What is interesting about the ninth exception to criminal defamation is that it does not appear to require an imputation to be truthful to be defensible. It merely seems to require the imputation to have been made in good faith for the protection of the interests of one or more people.

As such, it would appear that the publication in good faith of a list of alleged abusers for the purpose of warning others and attempting to help them avoid harassment, even if it wasn’t entirely accurate, could conceivably escape attracting criminal liability. That said, the fear of men being unfairly labelled as abusers would persist although, even if that were to happen, it is easy to imagine that men would face no significant unpleasant legal or social repercussions as a result of their names being listed especially if their accusers remained unnamed, and the conduct they were accused of remained unspecified.

Nonetheless, as understandable as it might be, outing alleged sexual harassers through public, possibly crowdsourced lists remains problematic. Although outing may enable women to address harassment through extra-legal channels, in doing so, it also highlights the weaknesses of more formal reporting systems both legal and through the media. The latter does not directly speak to accountability but it has the potential to lead to accountability. It also speaks directly to freedom of speech, the manner in which the media chooses to exercise it, and whose stories are told.

The details of trial proceedings cannot easily be published by the press. Although most trials are open, there are exceptions to this general rule. Rape trials are to be conducted in camera and permissible reportage relating to them is legally restricted. Courts may lift restrictions banning the ‘printing or publication of trial proceedings in relation to an offence of rape’ as long as the ‘confidentiality of name and address of the parties’ is maintained but they are not obligated to do so.

Even leaving aside reportage of trial proceedings, reportage of sexual violence routinely reveals that many journalists often misunderstand the most basic aspects of the law. For example, it is not at all uncommon to come across reports which talk about medical reports ‘proving rape’ although medical reports of alleged victims are only corroborative evidence. They are incapable of either proving or disproving rape in and of themselves — rape is a crime which hinges on consent not having been granted, and a medical report cannot possibly speak to consent by itself. Therefore, it cannot prove rape alone although it may support an allegation of rape.

Apart from fundamental factual and legal errors, the issue of whose allegations of rape are publicised, and the manner in which they are publicised, arises. There have been cases where women who have apparently been raped and murdered have had images of their corpses in disarray published by the mainstream media. Where such images do not even blur the faces of the victims, their publication is likely to fall foul of Section 228A of the Penal Code which prohibits the identities of victims from being revealed; it would be difficult to argue that publishing such images of dead, raped women does not reveal their identities.

Reportage of sexual assault also sometimes involves descriptions of the assault in explicit detail. It isn’t always clear that such detail is published with the informed consent of the women who are raped and it is almost never clear why it is necessary to publish the information.

The commonly-provided justification for intrusive reportage of sexual assault in what is often excruciating detail is that it highlights violence against women even though there are times when the reportage is obviously non-consensual. Despite the ostensible justification for such reportage, there is no clear evidence that it leads to anything more than 15 minutes of outrage on social media; it does not appear to help bring culprits to account, or to stem violence against women in any way. On the contrary, it could be considered to strip women of their dignity, and to turn the commission of crimes against them into a public spectacle which does no more than cater to the voyeuristic urges of those who view and, possibly, seek out such imagery.

What is particularly telling is that it is invariably poor women who are subjected to intrusive reportage, and poor men who are the subjects of long profiles when they are accused of rape. The rich, whether as the accused or as victims, tend to escape close scrutiny. The photos of upper claste women in disarray are not ordinarily splashed across the media; that is treatment which tends to be reserved for poor women with no-one to speak for their rights. The rich do not become objectified in the so-called fight to end violence against women; they are not reduced to corpses hanging from trees or anywhere else. Rich women tend to retain their personalities and, to what extent an intensely hierarchical and patriarchal society allows, their dignity.

Not all of the reportage of sexual abuse which is problematic is illegal. Not being illegal, however, does not stop the reportage from being problematic or from demonstrating how deep class and caste divisions in society are. It raises the question of who controls narratives, and the answer, more often than not, is: a miniscule percentage of people drawn from the upper class, which is hardly a harbinger of an equitable society in which the rights of all persons are equally respected and protected.

Amongst the most vulnerable members of society are children, and there are a number of legal provisions which are specifically designed to protect them. In terms of content law which restricts free speech, these provisions tend to focus on protecting the privacy of children in their everyday lives, as the victims of crimes, and as the perpetrators of crimes. Section 21 of the 2000 Juvenile Justice (Care and Protection of Children) Act protects the identities of juveniles in conflict with the law including those of alleged rapists who are juveniles although an authority holding the inquiry may permit their identities to be disclosed if it thinks that disclosure is in their interest.

Further, the 2012 Protection of Children from Sexual Offences (also called POCSO) contains what it refers to as a ‘procedure for media’ in Section 23. In essence, under this provision, no one is allowed to make indiscriminate reports or comments about children which could lower their reputation or invade their privacy. Additionally, no one is allowed to disclose the identities of children either directly or by disclosing details which could lead to their identification unless permitted in writing by the Court trying a case under the statute in the interest of the children concerned. The provision goes on to state that ‘the publisher or owner of the media or studio or photographic facilities’ from which such content is published ‘shall be jointly and severally liable’ for what their employees do, and stipulates that, if convicted, they are liable to be punished with imprisonment for between six and twelve months, or with a fine, or with both imprisonment and a fine.

Section 23 of POCSO is one of the most stringent provisions in the law intended to protect the children from having content about themselves be published. However, its enforcement is sketchy and, with the ostensible aim of highlighting social evils, it isn’t unheard of for journalists to imagine that issues such as ‘child prostitution’ make for legitimate publication material even if the identities of abused children are revealed.

Regardless of the name it is referred to by, it is difficult to see how so-called child prostitution is anything but the sexual abuse of children for commercial gain. There are, of course, several problems with 'child prostitution' features: to begin with, there can be no such thing as child prostitution — what we’re talking about when we consider child prostitution is invariably child rape. After all, children cannot grant consent to sexual activity, certainly not to adults.

Section 19 of POCSO contains a general provision to report offences which have either been committed or are anticipated, while Section 20 specifically singles out the media and outlines its obligation to report cases, stating:
“Any personnel of the media or hotel or lodge or hospital or club or studio or photographic facilities, by whatever name called, irrespective of the number of persons employed therein, shall, on coming across any material or object which is sexually exploitative of the child (including pornographic, sexually-related or making obscene representation of a child or children) through the use of any medium, shall provide such information to the Special Juvenile Police Unit, or to the local police, as the case may be.”
Simply publicising a case by claiming to highlight a ‘social evil’ by reporting it to the general public does not satisfy the requirements of the law — the law mandates such crimes be reported to law enforcement authorities.

Secondly, there are substantive concerns relating to the nature of the content: if the child were identifiable in a published photograph, it would almost certainly violate both the child’s privacy and the laws which protect the identities of rape victims. And were the photograph to be explicit, whether it was intended to make its way to an art gallery or another less highbrow place, its publication would likely violate obscenity laws. Further, if it were published online, simply viewing it could be illegal as the 2000 Information Technology Act criminalises accessing both publishing and accessing child pornography which, where it features real children, is evidence of child abuse in n and of itself.

Thirdly, even leaving aside the concerns about what is photographed, there are ‘procedural’ issues about how consent is obtained both for the photography itself, and for the publication of photographs. As a general rule, photographing and publishing content relating specifically to any person would require obtaining that person’s consent. In the case of a minor who has been sexually exploited, it is wholly unclear that claiming to have obtained the child’s consent would be adequate. Leaving aside how vulnerable a child in such a position would be, the grant of consent requires competence to contract which minors do not have. An agreement with a minor masquerading as a contract is invalid right from the time of its inception or, in the language of the law, it is void ab initio.

The case of obtaining consent — or, more accurately, not obtaining consent — from children to photograph them is clear enough legally. What is not quite as clear is the case of consent which is obtained from those who are legally considered to be adults. As far as the law is concerned, adults are ordinarily competent to contract, and they can grant consent. There are situations where a contract is treated as void or where it can be invalidated, such as where consent is obtained through coercion or undue influence but such cases tend to be few and far between. Critically, although it is generally necessary for there to exist some form of quid pro quo, and for the person granting consent to be given something for it in the way of ‘consideration’, the law almost never looks into the adequacy of consideration.

Consequently, in a situation where structural inequities are rife — which, of course, includes almost all social situations in which abuse of any form has occurred — the grant of consent is often vitiated by asymmetries of knowledge, autonomy, and power resulting, at best, in consideration being grossly inadequate. A person who grants consent to be photographed or otherwise profiled by a reporter may not fully understand what the effects of granting consent are, and they may not realise how valuable their contribution is.

Consider the case of a documentary about life in a Red-Light district. Although it could win awards, and although the documentary-makers could make a great deal of money from it, it doesn’t follow that those who feature in it would also similarly profit were they to rely on contract law alone. Provisions introduced to copyright law could potentially see them being treated as performers, and cause them to be entitled to a statutorily-mandated share of royalties in a limited number of circumstances. But unlikely statutory royalties aside, it isn’t difficult to envisage a situation where the primary effect of having granted consent to be featured in a documentary would be that those who did so would lose their privacy, and possibly face social ostracism if details of their lives not previously known were to be publicised through the documentary.

Unfortunately, in such cases, the law would be likely to fail those who featured in documentaries, as the conduct of the documentary-makers would probably not have been illegal. They may be considered to have violated the right of publicity of those whom they filmed as the right grants individuals to control the commercial use of their images. However, the right of publicity is not well established in India, and if the documentary-makers had entered into a valid contract with those who were filmed, the likelihood of a publicity rights claim succeeding would probably be slim to none.

What is, however, undeniable is that those who engage in reportage which involves people who are marginalised or in vulnerable situations have to deal with the ethical issues which such coverage raises. They are, without doubt, exercising their right to free speech by reporting but that exercise of their right could easily come at an extremely high cost to others. Whatever their motivations are, it is hard to argue that they do not have an ethical responsibility towards those whom they speak of, or, perhaps slightly more controversially, that their exercise of the right to free speech should not be considered through the extra-legal lens of ethics.

What viewing free speech with reference to ethics and structural social inequities means in concrete terms is debatable but, as an initial step, it would probably be worth simply accepting that just because a specific manifestation of the exercise of free speech is legal, it does not mean that it should necessarily be acceptable.
(This post is by Nandita Saikia and was first published at IN Content Law.)

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