Bombay High Court's 'Lakshman Rekha': Shilpa Shetty's Privacy Vs Press Freedom

Press freedom is not a licence to cast aspersions on morality and reputation of a person and violate their privacy.

"Just because Shilpa Shetty is a public figure, it doesn't mean that she has sacrificed her right to privacy guaranteed under the Constitution."

Bombay High Court

These are the words of the Bombay High Court, which on Friday, 30 July, directed 29 media channels to remove prima facie defamatory content against actor Shilpa Shetty. The order follows a plea moved by Shetty against allegedly "maligning campaigns" run by certain media channels dragging her name into the picture while reporting on her husband Raj Kundra's pornography case.

Raj Kundra is currently in judicial custody in a case which accuses him of financing porn films, which allegedly lured women to act in them on the pretext of getting Bollywood roles.

While directing the takedown of defamatory content, the court reiterated that there's a need to balance the freedom of press and a citizen's fundamental right to privacy.

Media law does recognise this "lakshman rekha" while balancing the freedom of press and the right to privacy. Therefore, various provisions of the Programme Code, Cable TV Network (Regulations) Act, Cable TV Rules, and multiple judgments of the Supreme Court delineate what is ethically and legally prohibited in media reportage.

Freedom of Press is Not an Absolute Right

In the Constitution of the United States of America, the freedom of press is explicitly recognised as a standalone right. However, under the Indian Constitution, 'freedom of press' is not a separate or explicitly worded fundamental right.

As stated by Dr BR Ambedkar during the Constituent Assembly debates, the press derives its freedom of speech and expression from the general provision of Article 19(1)(a) of the Constitution that guarantees freedom of expression to all citizens.

However, just like a citizen's freedom of speech, the freedom of press is not absolute. The said freedom is restricted by various legal and regulatory provisions, which are enacted in conformity with "reasonable restrictions" laid down in Article 19(2) of the Constitution – interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

It is in the light of these restrictions, that the Bombay High Court ruled in favour of Shilpa Shetty, ordering media channels to take down defamatory content. The court also said that this is not a "gag on media" as preventing the press from violating a person's constitutional right to privacy is a reasonable restriction on the freedom of press.

Need to Strike a Balance

While ruling in favour of Shetty, the Bombay High Court highlighted that the press can't be prevented from doing a critical reportage of a public figure, as long as such criticism doesn't 'cross the line'.

To decide what 'crosses the line' is an act of balancing the two conflicting interests that the courts have to embark upon. The Bombay High Court clearly said that freedom of speech is a valuable right and therefore reasonable restrictions to it should be "exceedingly narrowly tailored". This means, ambiguous and vague restrictions go against the spirit of both, the freedom of speech and this "balancing act".

"The considerations in a defamation case, and the wide protection recognised for the Freedom of Speech and Freedom of Press will have to be balanced against the Right to Privacy."

Bombay High Court

There are multiple legal and regulatory mechanisms that try to strike this balance between freedom of press and fundamental rights of individuals. Their objective is to encourage a culture of 'self-regulation' in media:

• Programme Code: Sets down guidelines that media channels need to confirm to while broadcasting content

• Cable TV Network (Regulation) Act

• Cable TV Network Rules

• Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021: Provides a regulatory framework for OTT platforms, social media portals, and digital media portals. The legality of the Rules are currently under challenge before various high courts.

• Section 228 of Indian Penal Code: Prohibits media and provides punishment for publishing the identity of a victim of sexual violence.

• Section 74 Juvenile Justice Act: Prohibits media from revealing the identity of a child in conflict with law or a child in need of care and protection.

Commenting on Shilpa Shetty's Parenting 'Crosses the Line'

In the present case, the court took into consideration the existing law and noted that the reportage which casted aspersions on Shilpa Shetty's parenting does amount to "crossing the line".

"Transcript of this video shows that what is included in the course of the video is a statement on moral standing of Shetty. He went on to the quality of her parenting of her minor child... In any case, none of this (reportage) should involve or be allowed to involve Miss Shetty as a parent. That right is protected by the law on privacy."

Bombay High Court

However, the court also said that it is not possible to say at this stage that all the media channels added as defendants to the suit broadcasted defamatory content. Therefore, concerns raised by Shetty in her plea would require closer scrutiny.

Each report needs to be scrutinised individually, and no general restraint order can be passed.

This 'closer scrutiny' will also look into how fundamental right to privacy impacts the freedom of speech and expression. The broadcasting of defamatory content can have permanent ramifications on the reputation of the person.

"Once besmirched by an unfounded allegation in print media and its quadrupled circulation on electronic media, a reputation can be damaged forever, especially if there is no opportunity to vindicate one's reputation."

Bombay High Court

Therefore, while reporting the claims of police and what has unearthed during the investigation might not be prima facie defamatory, but using an accusation to cast aspersions one one's character and morality, would be. Even more so in Shilpa Shetty's case, where, so far, she is not even the subject of a police investigation. Her husband, Raj Kundra, is, but not her.

The media needs to be aware of this "lakshman rekha". As the law not only provides for takedown of content, but also punitive action. It is only a matter of time and patience when both the judiciary and the regulatory bodies exercise the power to punish.