Justice Gates v. Weekly Prophet – Privacy and Defamation

Anonymous

Editor’s note:

A retired SC judge was accused of sexual assault on a blog. An article was was published which mentioned the blog post, with the names and interviews of the three judges who had retired the previous year. There was a follow-up article regarding bugging the plaintiff’s residence to conduct a ‘sting operation’ with the help of an ‘insider’. The plaintiff found this out and brought an action against the defendant alleging defamation and breach of privacy. This paper deals with both sides of the argument, with all essentials of defamation and privacy, and concludes with a judgment.

Statement of Facts

Barbie Modi alleged a retired Supreme Court judge of a sexual assault on a blog. An article was published by the ‘Weekly Prophet’ which mentioned the blog post, with the names and interviews of the three judges who had retired the previous year. Also, the defendant followed the article up with bugging the plaintiff’s residence to conduct a ‘sting operation’ with the help of an ‘insider’. The plaintiff found this out and brought an action against the defendant alleging ‘defamation’ and ‘breach of privacy’.

Issues Raised

  • Did the editor of ‘Weekly Prophet’ defame Justice Gates?

  • Did the attempt to conduct a sting operation by the journalist constitute breach of privacy?

Arguments for the Plaintiff (Justice Sherlock Gates)

Justice Gates was defamed by the report in question

There are three elements which need to be proved in an action for defamation. These three elements, which were upheld in the landmark case Hay v. Asvini Kumar, [1] are (a) there must be a defamatory statement, (b) it must concern the claimant, and (c) publication of the statement by the defendant to a third person.

On the first criterion, Justice Cave in the case Scott v. Sampson [2] defined defamation as “a false statement about a man to his discredit“. In Sim v. Stretch, [3] Lord Atkin gave the following test: “Would the words tend to lower the complainant in the estimation of the right thinking members of the society generally?”  Undoubtedly, the words in question (“Though the courageous girl, studying at the University of Asgard, has not named her tormentor, it is not a herculean task to figure out the names of the judges who retired in 2012.”) tarnished Justice Gates’ “unblemished reputation as an eminent person of the society” and the same was evidenced in the subsequent indefinite postponement of his then upcoming lecture on ‘The Status of Women’s Rights in Asgard’ at University of Hogwash. Further, unlike English law, there is no distinction between libel and slander in Indian law. 5   Thus, it is irrelevant to show if the defamatory statement in question was libel or slander. In the case Bala Ram v. Sukh Sampat Lal, [4]it was observed that when on the face of them words used by the defendant have clearly injured plaintiff’s reputation, they are actionable per se. Furthermore, as was held in the landmark case Sadasiba v. Bansidha , [5]  which was a case of libel, it is not necessary to prove the actual loss of reputation and it is sufficient to establish that the defamatory statement made would damage one’s reputation.

On the second criterion, according to the holding of the landmark case Knupffer v. London Express newspaper Ltd., [6] each member of a group or class has a cause of action if something defamatory is published against that class. In the instant matter, Justice Gates was one of the three Honourable former justices who were in that class and by that virtue he has a cause of action against the defendant. Moreover, in practice the smaller the group the more are the chances of the claim succeeding as was pronounced in Browne v. D.C. Thompson.[7] On the third criterion, the defamatory statement was published in “The Supreme Court Judges: Knights for Rights” in the “Weekly Prophet” dated 12th September, 2013.Hence, all the three criteria for an action in defamation have clearly been met and thus the statement published was indeed defamatory to Justice Gates.

Justice Gates’ ‘right to privacy’ was breached by Weekly Prophet

The ‘right to privacy’ does not enjoy the status of a separate constitutional right in India.  Article 12 of Universal Declaration of Human Rights (1948) which has been ratified by India reads “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence not to attack up on his honour and reputation. Everyone has the right to protection of law against such interference or attack.” Further, Art 17 of the International Covenant on Civil and Political Rights (ICCPR) [8] and Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) [9] which have also been ratified by India recognize ‘right to privacy’ as well.

In R. Rajagopal v. State of T.N.[10] the Supreme Court of India held that the ‘right to privacy’ is implicit in the fundamental right to life and liberty guaranteed by Article 21 of the Constitution. The Supreme Court further held that the constitutional and tortious aspects of ‘right to privacy’ were both two sides of the same coin.[11]Moreover, Justice Subba Rao, in his famous minority opinion in the landmark case Kharak Singh v. The State Of U. P. & Others, [12] while concurring that the right to privacy was a part of the ‘right to liberty’ in Article 21 of the Constitution, went a step further and held that it was also a part of ‘right to freedom of speech and expression’ in Article 19(1) (a) and also of the ‘right to movement’ in Article 19(1) (d) and observed that Regulations permitting surveillance violated the fundamental right of privacy.

The Norms of Journalistic Conduct, 2010, by Press Council of India in relation to ‘Right to Privacy of Public Celebrities’ state that the press has a duty to ensure that the information about celebrities is collected by “fair means” and is not expected to use surveillance devices. There was obviously usage “unfair means” inbugging the residence of Justice Sherlock Gates. Thus, there has been a gross violation of these norms.Further, Section 24 of the Privacy Bill, 2011, clearly holds electronic surveillance by State or any private person without any conformity with law illegal. This Bill clearly shows that the Indian Parliament wants to make the aforementioned act illegal.

The English common law also recognized the samein the landmark cases R v Khan (Sultan)[13]  and Douglas v Hello Ltd.[14]. [15]In US common law,“intrusion” to ‘right to privacy’ was extended to eavesdropping upon private conversations by means of wiretapping in the case McDaniel v. Atlanta Coca Cola Bottling Co. [16] Thus, the above authorities clearly show how the defendant has breached plaintiff’s ‘right to privacy’ by bugging Justice Gates’ residence.

Arguments for the Defendant (Weekly Prophet)

Justice Gates was not defamed by the report in question

The counsel for the Defendant claims that there was no defamation of Justice Gates by the report in question. The report cannot be constructed so as to refer to Justice Gates specifically in any reasonable way. As the House of Lords had put it in the landmark case Knupffer v. London Express newspaper Ltd., [17] the decisive question is whether the words were published “of the claimant” such that they can be said to personally point at him. Quite clearly the words do not say anything for which Justice Gates can be said to be personally pointed at. In the case McCormick v. John Fairfax,[18] it was held that where there is nothing that points to a particular member of group as responsible – can’t be defamation. Also, in the case Cf Chomley v. Watson[19] it was held that when the statement was true ‘either you or Jones stole the money’ was held not to be actionable as it puts one of the three judges and not the entire group in the dock.

In arguendo that the statement was defamatory, the defense of fair comment would apply. The requisites of fair comment are (a) matter must be of public interest,[20] (b) the comment must be an observation or assertion of fact, not an assertion of fact, [21] and (c) the comment must be free of malice. [22] The first criterion viz. the matter being of public interest is met. The matter was especially in interest of law students who might have been in danger of being target of sexual assaults had they not come across the report in question. Further, the second criterion, i.e., the comment must be an observation, is met as the report is based on the blog post and is just an observation about the incidence in report rather than being an assertion. Furthermore, the last criterion, i.e., the comment must be free from malice, is also met as the comment was indeed free of malice, the report only stated the state of affairs that “a judge of the same court considered as the protector of law in the country is someone you can’t feel safe around.”

Another defense which has been a recent development by the Supreme Court of Canada in Grant v. Torstar Corp.,[23]viz. responsible communication on a matter of public interest is available in the instant matter. The new defense has application in circumstances where the media or other persons publish information to the general public, and where the facts turn out to be untrue. Provided the subject matter of the publication meets a test of being of “public interest”, there may be a complete defense.

Further, even the defense of qualified privilege – Reynolds defense (devised in Reynolds v. Times Newspapers Ltd[24]) would apply in the instant matter. There are several comments on the same which can be taken in account. [25]Establishment of some of these might suffice the claim of this defense.[26]Firstly, it has already been shown why the subject-matter is of public concern. Secondly, the source of information can be said to be quite reliable as is known that a woman would rarely make a false accusation of sexual assault. Thirdly and most importantly, plaintiff’s comment were indeed sought for and incorporated in the same report. Fourthly, the matter was of urgent public interest (as has been already shown) and thus the timing of publication wasn’t inappropriate. Fifthly, the article did contain the gist of whatever the claimant intended to say. Thus, the defendant is quite clearly entitled to Reynolds defense.

Justice Gates’ ‘right to privacy’ was not breached by Weekly Prophet

Firstly, there is no damage at all to the plaintiff as there was no publication of private information. That said, it seems a highly nonsensical claim to begin with as there was no damage. Further, the affairs and events of a public figure’s life are inherently “public”. [27] Furthermore, public figures in a way already consent to publicity which reduces the threshold of the protection of their right to privacy. [28]

Secondly, as was held in Anniruddha Bahal v. State, [29]“public interest” can be sufficient ground for quashing an FIR against a person who tries to expose corrupt politicians through a sting operation. Thus, in essence the press has a right to inform public of matters of “public interest”. Thirdly, as highlighted in Ajay Goswami v. Union of India,[30] the shortcomings of the powers of the Press Council are

“Section 14 of the Press Council Act, 1978 empowers the Press Council only to warn, admonish or censure newspapers or news agencies and that it has no jurisdiction over the electronic media and that the Press Council enjoys only the authority of declaratory adjudication with its power limited to giving directions to the answering respondents arraigned before it to publish particulars relating to its enquiry and adjudication. It, however, has no further authority to ensure that its directions are complied with and its observations implemented by the erring parties. Lack of punitive powers with the Press Council of India has tied its hands in exercising control over the erring publications. ”

Thus, the norms are not enforceable even in cases where the norms are breached.

Fourthly, the Privacy Bill, 2011, cannot be said to reflect the intention of Parliament until it is debated up on and then finally passed. The very basis of having provisions of the three readings and votes on bills is that everything that is tabled in the Parliament is not necessarily the true intention of the Parliament. Fifthly and lastly, none of the international treaties cited by the counsel for the plaintiff are enforceable in any Indian court. Thus we see how all the authorities cited by the counsel for the plaintiff don’t hold much weight.

Judgment

On the issue of defamation, the three criteria have to be met. Only one of these criteria viz. the statement did not specifically refer to Justice Gates was contended by the defendant. The defendant cited the case McCormick v John Fairfax, [31] where the facts were materially different and a comment on what a small group did and not what a member of that group had done. Further the defendant cited CfChomley v. Watson[32]where the innocent party had no course of action on the true statement. However, in the instant matter, the truth of the sexual assault is not an established fact. It was just based on a blog post and there was not even a police complaint or an FIR even after more than 3 months of the publication of the blog post. Thus, this case is also materially different from the instant matter. Moreover, the statement in question would impute suspicion on Justice Gates and that is itself defamatory, though to a lesser extent. [33]But, as Lord Atkin had pronounced in Knupffer v London Express Newspaper Ltd., [34] the only relevant rule is that in order to be actionable the defamatory words must be understood to be published of and concerning the plaintiff. There can be no law that a defamatory statement made of a firm, or trustees, or the tenants of a particular building is not actionable, if the words would reasonably be understood as published of each member of the firm or each trustee or each tenant but in the instant matter the statement cannot be constructed in a way to refer to Justice Gates specifically.

Secondly, on the issue of fair comment, there is some doubt about the fulfillment of the second criterion viz. the statement should be an opinion and not assertion of a fact. If the statement is untrue, and not privileged the defendant cannot invoke the defense by simply proving that his comment is fairly made. [35] Moreover, the Supreme Court of United States had held in the case New York Times Co. v. Sullivan[36]that the court can award damages if in case of a public figure such as this, the Plaintiff can show “actual malice.” “Actual malice” is when the statement is made with knowledge of its falsity or with “reckless disregard” of whether it was true or false. Clearly, passing such a comment on a retired Supreme Court judge on basis of a blog post and alleging him of sexual assault, especially when the claimant has not even filed a police complaint yet is nothing short of “reckless regard.” Also, the new defense devised in Grant v. Torstar Corp.,[37] that the defendant has pleaded cannot be applied to this case as the defendant should have exercised “due diligence” prior to publication to ensure that the facts are accurate to use this defense which they clearly failed to exercise in the instant matter. Lastly, Reynolds defense would not apply as clearly the article failed miserably on two very important grounds [38]viz. the article’s tone was not appropriate (it alleged instead of asking for investigation) and no steps were taken to verify the information. Further, the charges are very serious and thus the public will be relatively more misinformed, if the charges are now found to be untrue.

Thus, though none of the defenses the defendant seeks to plead would apply, the alleged defamatory statement still fails on the criterion which seeks reference to the plaintiff as the statement could not be constructed so as to specifically refer to the plaintiff. Hence, there has been not liable for defamation.

On the issue of privacy, there has been gross “intrusion” of the plaintiff’s privacy. Although there is no clarity on the issue of ‘breach of privacy by a private individual’, the various international treaties viz. Universal Declaration of Human Rights (1948), International Covenant on Civil and Political Rights (ICCPR), and European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) recognize the right. The defendant’s claim that International treaties do not hold any value in eyes of the Court is not annulled by the landmark Vishaka & Ors. v. State of Rajasthan & Ors. [39] case wherein the Supreme Court had in effect done away with dualist theory of International law [40] and directly based its judgment on an International convention India had ratified. Further, the Norms of Journalistic Conduct, 2010 by Press Council of India and the Privacy Bill, 2011, and the various Indian, English and American case laws recognize the right. Furthermore, the claim that since Justice Gates was a public figure his right to privacy had a lesser threshold of protection by law seems weak as he was no more a public figure since he had retired from his constitutional post. The fact that the damages proposed for such a breach in the Privacy Bill, 2011, are to the tune of 2 crore INR go on to show the seriousness of the act. Thus, the protection of right to privacy is well protected.

Now then, the case Anniruddha Bahal v. State, [41] is a case where the interceptor was a party to the communication. In McDaniel v. Atlanta Coca Cola Bottling Co,[42] it was held that wiretapping is not unlawful where the interceptor is a part to the conversation and vice-versa. On the contrary, in the instant matter the interceptor was not a party to the communication. Thus, the defendant is liable for breach of ‘right to privacy’.

Edited by Neerja Gurnani

[1] AIR 1958 Cal 269.

[2] (1882) 8 QBD 491.

[3] (1936) 52 TLR 669.

[4] AIR 1975 Raj. 40.

[5] AIR 1962 Orissa 115.

[6] (1994) AC 116.

[7] 1912 S.C. 359.

[8]“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

  1. Everyone has the right to the protection of the law against such interference or attacks.”

[9]“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

  1. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

[10] (1994) 6 SCC 632.

[11]“The right to privacy as an independent and distinctive concept originated in the field of Tort law, under which a new cause of action for damages resulting from unlawful invasion of privacy was recognized. This right has two aspects which are but two faces of the same coin (1) the general law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy and (2) the constitutional recognition given to the right to privacy which protects personal privacy against unlawful governmental invasion.”

[12] 1963 AIR 1295.

[13] [1997] AC 558.

[14] [2001] QB 967.

[15] These are the two prominent British cases which have recognized breach of privacy as an actionable tort. The law is still in confusion in Britain but the cases which are coming up are in conformity to the above two cited cases.
[16]  60 Ga. App. 92.

[17] Supra note 6.

[18] (1989) 16 N.S.W.L.R. 458.

[19] [1907] VLR 502.

[20] Lord Denning in London Artists Ltd v Littler [1969] at 391

[21] W V H Rogers, Winfield and Jolowicz on Tort (18th Edition) 610 (2010).

[22] Lord Porter in Turner v. Metro-Goldwyn-Mayer [1950] 1 All E.R. 449 at 461.

[23] 2009 SCC 61.

[24] [2001] 2 AC 127.

[25]“1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.

  1. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
  2. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
  3. The steps taken to verify the information.
  4. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
  5. The urgency of the matter. News is often a perishable commodity.
  6. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
  7. Whether the article contained the gist of the plaintiff’s side of the story.
  8. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
  9. The circumstances of the publication, including the timing.”

[26] (Mohamed) v. Wall Street journal Europe Sprl. [206] UKHL 44.

[27] Jamie E. Nordhaus, Celebrities’ Right to Privacy, The Review of Litigation 18:2.

[28] Id.

[29] Crl.M.C. 2793/2009.

[30] (2007) 1 SCC 143.

[31] Supra note 18.

[32] Supra note 19.

[33] Lewis v. Daily Telegraph [1964] A.C. 234.

[34] Supra note 6.

[35] Ramasawamy Iyer, Law of Torts (10th Edition) 527(2007).

[36] 376 U.S. 254.

[37] Supra note 23.

[38] Supra note 25.

[39] 1997 (6) SCC 241.

[40] “Dualists emphasize the difference between national and international law, and require the translation of the latter into the former. Without this translation, international law does not exist as law.”
[41] Supra note 29.

[42] Supra note 16.

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