Ajay Patri
When I saw The Post, a movie about The Washington Post’s publication of the Pentagon Papers in the 1970s, I was struck by a particular line delivered quite early in the film. It is said by the then editor of the newspaper, Ben Bradlee, played by Tom Hanks: “The only way to assert the right to publish is to publish.” In many ways, this line epitomises the central theme of the movie: the overwhelming importance of the right to freedom of speech and expression in a liberal democracy. It helps that the line itself is short and evocative, to go along with the wittiness of its wordplay, the way the sentence doubles in on itself. The filmmakers also recognised this because Hanks uses the line more than once in the movie.
But as I heard it being said on screen, I couldn’t help but ask myself. Is it so? Is publishing indeed the only way to assert the right to publish? Invaluable as the right to freedom of speech and expression is, how does one square it against a possible violation of that other important right, the right to privacy? If there is even the slightest possibility that a publication will lead to irreparable damage to a person’s privacy, isn’t there merit in re-examining the position set by the quote?
An attempt to answer this question must account for a few factors. One, privacy once lost is very difficult, if not impossible, to reclaim. On the other hand, the act of publishing can be deferred, unless there is a very strong reason to publish immediately. Two, the presence of the internet accentuates the trade-off mentioned in point one. It is even more difficult to protect an individual’s privacy once news leaks onto the world wide web. Three, the resolution of this conflict of rights is dependent on a person approaching a court of law, mainly through a tortious claim seeking an injunction or damages. It is important to ask how efficacious this is in the Indian context.
To make matters more complicated, it is also difficult to draw a clear demarcation between the two rights. Being guaranteed one’s privacy is often an important precursor to exercising freedom of speech and expression. The Supreme Court has ruminated on this connection in the case from last year in which it declared privacy to be a fundamental right.
One possible option, which also happens to be the status quo, is to consider each case on its own merits. This involves looking at the extent to which the two rights are affected in a given situation and then taking a call over which right deserves more protection. This brings up another important question of its own. Is there a need and a way to standardise how these conflicts are resolved, given the three factors mentioned before? Or is the current system the best bet going forward?
The points made so far might give the impression that a more circumspect right to publish should be the norm, that the quote from the movie is misguided. This brings me to a final point: there is a need to distinguish the exercise of the right to freedom of speech against the State vis-à-vis other entities. In the movie’s context, the exercise of the right was against the State apparatus. Pitted against a State’s considerable clout, it makes sense to empower individuals and the media with a strong right to freedom of speech and expression.
However, there is space for more conversation in the sphere of private interactions. I look forward to reading and understanding more about this conflict in the future.rights-94c0f5bb49cb
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