Limits of privacy

Published : May 19, 2006 00:00 IST

A book explores the relative merits of the cases for the individual's right to privacy and press freedom.


Privacy and the Press by Joshua Rozenberg; Oxford University Press; pages 274, Rs.950.

A New Miscellany at Law: Yet Another Diversion for Lawyers and Others by Rt. Hon. Sir Robert Megarry; edited by Bryan A. Garner; Hart Publishing; pages 450, 22.50

JOSHUA ROZENBERG's book will be most instructive to lawyers and journalists alike. Indian law on privacy is in a hazy state. There is no statute on the subject. We have to draw on case law, Indian and foreign. Hence the value of this book, which cites English, American, European and Commonwealth cases. Appended is the Press Complaints Commission's Code of Practice. That body should put our ramshackle Press Commission to shame.

Though a journalist, the author writes not as an advocate of its cause, but with conspicuous detachment. The dilemmas are acute.

Is the public entitled to know the private life of a public figure? Can his word be trusted if he cheats on his wife? A privacy law would stop reporters exposing him. Is there a right not to be photographed?

There clearly are cases in which the public's right to know should prevail over the individual's right to privacy. But, "there is no overarching principle of English law that will protect us against invasion of our privacy". The law of libel and the law of confidence can help; up to a point.

The book discusses the press' right to protect its sources, a question which does not admit of an unqualified answer though, on balance, the right to know should prevail. As Rozenberg puts it tersely, "privacy good; free press better". No absolutes.

The Supreme Court ruled in the The New York Times case that a public figure must prove malice or recklessness when he sues for libel. The House of Lords rejected this test. Lord Nicholls laid down 10 tests - the seriousness of the allegation; the nature of the information and the extent to which the subject matter is a matter of public concern; the credibility of the source of the information; the steps taken to verify the information; the status of the information; the allegation may have already been the subject of an investigation; the urgency of the matter; whether comment was sought from the claimant; whether the article contained the gist of the claimant's side of the story; the tone of the article and the circumstances of the publication, including the timing.

Incidentally, The Daily Mirror once published photographs of three Judges in the House of Lords upside down with a comment "You fools". It was not hauled up for contempt of court.

We cite English and American cases heedless of the profound difference in legal cultures. English legal culture rests on tolerance in a conservative ambience. The top Queen's Counsels (Q.C.s) are persons who have excelled in academia before going to the Bar. And the Bar, despite political differences, presents a united front when its values are attacked. A Judge of the Supreme Court confided to this writer, in May 1983, that when Justice P.N. Bhagwati's reprehensible and grovelling letter to Indira Gandhi, on her return to power in 1980, was published, he and a few other Judges intervened in the split in the Bar in support of Bhagwati J. He was heedless of his gross impropriety.

David Pannick Q.C.'s books Advocates and Judges have no counterparts in India. But, then, he was Fellow of All Soul's College, Oxford. You get a feel of that legal culture in Sir Robert Megarry's splendid volume, the third in a series which began half a century ago. It was published thanks to the devotion of his friend Bryan A. Garner, when Megarry was 94. Sir Robert became a Judge in 1967 and was Vice-Chancellor of the Supreme Court when he retired in 1985. He has written books on equity, land law and the literature of the law.

Superficially, it is tit-bits, sourced with erudition, and strung together in admirable prose. Are bees invitees, licensees of trespassers? Strange cases, eccentric judges and lawyers, weird and incredible exchanges are collected. Each reflects the clime. Together they reflect a great legal culture.

As a student at Cambridge, the author had begun to make notes of "phrases and sentences in judgments that were striking and noteworthy, [Where] there was wit, and there were remarkable events and curiosities". Seventy-five years later we have three volumes of his labours.

If less entertaining, there are records of incidents concerning the conduct of judges and lawyers which are of high contemporary relevance.

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