Unauthorized Biographies: Balancing the right to privacy with the right to know

Well-known personalities, such as politicians, actors and sportspersons, are recognized where they go, courted and feted for their connections and abilities. There is a keen interest in not just their public but also their personal life. This had led to various biographies, both authorized and unauthorized, being written about such individuals. It is important for authors as well their publishing houses to understand the repercussions of writing and publishing an unauthorized biography – as publication of matters that are not on ‘public record’ could result in them fighting injunctions against the publication of their books and payment of hefty damages.


Right to Privacy

Indian Courts have dealt with the issue of publication of unauthorized biographies and the relief available in such cases. The law upholds the right to privacy of an individual. In R. Rajagopal v. State of Tamil Nadu (AIR 1995 SC 264), the Supreme Court of India had elaborated the concept of right to privacy and had recognized two aspects of such right: (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 of privacy which protects personal privacy against unlawful governmental invasion. The first aspect of this right must be said to have been violated where, for example, a person’s name or likeness is used, without his consent, for advertising or non-advertising purposes or for that matter, his life story is written – whether laudatory or otherwise and published without his consent.

The Supreme Court of India had held in the above mentioned case that anything concerning the privacy of a person can only be published with the consent of that person. The only exception to the rule is any information which forms public record. The Supreme Court in R. Rajagopal had held that: “the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of the country by Article 21. It is a ‘right to be let alone’. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing, and education among other matters. None can publish anything concerning the above matters without his consent – whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy”.

The Court also carved out exceptions to the aforesaid position and held that “any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others”.

The Court also highlighted an independent rule concerning publications regarding public officials. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based on facts and statements which are not true, unless the official establishes that the publication was made with reckless disregard for truth. In such a case, it would be enough for the defendant to prove that he acted after a reasonable verification of facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen.


Public Record

Following R. Rajagopal, the question that needs to be answered is: What are public records? This question was deliberated and answered by the Delhi High Court in Phoolan Devi vs. Shekhar Kapoor and others (57 1995 DLT 154), wherein it was stated that books and interviews are not considered to be public records. Gathering information from third persons or from a weekly/magazine is also not a public record. If the contents of the book are not on the basis of a public record, then there is a clear violation of privacy under Article 21 of the Constitution of India.

The same position was reiterated by the High Court of Madras in the case of Selvi J. Jayalalithaa vs. Penguin Books India (C.S. NO. 326 OF 2011). In the book “Jayalalithaa – A Portrait”, the author had written about several events from Jayalalitha’s life before she became a politician, such as her school life, her medical college interview, her often tumultuous relationships and other details provided by her friends and recorded in other published biographies of her life. In court, the lawyers for the authors and publishers argued that Jayalalitha was a public personality and that the public had a right to know of her life from before she became a well-known figure, since these events possibly shaped her current public personality in significant ways. In the said case, the Court granted an injunction against Penguin Books India Private Limited from publishing the book “Jayalalithaa – A Portrait”, penned by senior political journalist Ms. Vaasanthi. The Court granted the injunction apprehending considerable damage to her political image and violation of her right to privacy. The Court in this case held that reasonable verification of the contents of the book had not been done in accordance with the principles laid down in R. Rajagopal.

Indian Courts have consistently upheld the existence of the right to privacy of individuals. While biographies are important sources informing people of the life stories of their leaders and celebrities, it is important for the authors and the publishers to strictly follow the broad principles that have been laid down by the Courts. In the absence of any supporting public record, authors must ensure that requisite consents from the subject of their biographies are in place. Further, a reasonable verification of facts must be undertaken by the authors prior to publication of biographies.