By Mishika Bedi
Celebrity gossip first gained importance during the late 19th century and has expanded in various ways since then.[1] It is the staple of most magazines and newspapers today. A new form of celebrity gossip called Blind Items emerged somewhere around the late nineteenth or early twentieth century[2] and has gained immense importance worldwide. With the unfortunate demise of the Indian Actor and Model, Sushant Singh Rajput, the toxicity behind the ‘blind item’ culture was brought to light by various public figures.[3] The article aims to give a brief insight to the reader about the concepts of ‘Celebrity Gossip’ and ‘Blind Items’ and talks about the possible legal recourse available to a celebrity in cases where he/she is the subject of a blind item. Further, the author discusses how ‘celebrity rights’ is a different concept altogether and elaborates on the conflictual relationship between right to speech and the right to privacy of celebrities.
What is Celebrity Gossip?
Celebrity gossip in simple terms is the reporting of private affairs about well-known persons. The term ‘celebrity’ in this article refers to those people who are well-known in the entertainment or sporting industry, and not somebody who holds a public office. The public is naturally intrigued in the glamorous private lives of these celebrities, while the media is interested in commercially benefitting from publishing news that interests the public. Celebrity gossip stories are a great way of attracting viewership which consequently attracts advertisers.[4] Celebrity gossip takes a significant form and has a broad reach when the media starts publishing it. The media expands this concept from a mere local dimension to a national and international dimension, thereby increasing readership and making gossip consumption faster and wider.[5] In this way, the media commercially benefits by fulfilling the curiosity of the public.
What are Blind Items?
Also known as the ‘gossip column’, blind items are those sections of a newspaper or magazine in which a news story about a particular celebrity is reported without revealing the identity of the subject.[6] These are structured in the form of a ‘guessing game’ wherein the public partakes by guessing the public figure in the comments section.[7] It starts with a not-so-difficult-to-guess description of the person in terms of his profession, past work, nicknames, to name a few.[8] Following this, some controversial or private news related to the celebrity is reported to the general public. These are also strategically used by rivals for stirring a controversy to the detriment of each other.[9] Blind items are usually not reported by celebrities for fear of validating these news items written about them[10], allowing the authors to publish the material free from the apprehension of any legal consequences[11]. The major themes of these blind items are: sexual life, sexual orientation, relationship status/love life, drugs, alcohol, behaviour or character of the celebrities.[12] These have the potential to stir some major controversies and destroy someone’s career. It is repeatedly being alleged that blind items were one of the reasons or methods of destroying late Sushant Singh Rajput’s career and hence, might have been one of the contributory factors in him taking his life.[13] The late actor had to face the brunt of these Blind Items over the years. It was claimed in a number of articles that he had ‘physically abused his girlfriend[14]and his co-star[15]’, he was a womanizer and ‘his philandering ways may land him in jail’[16] and that he had major behavioural issues and ‘had been asked to leave his apartment due to complaints from his neighbours’.[17] Some of these news items, especially the one that claimed he physically abused his co-star, reportedly had such a huge toll on him that he couldn’t sleep for four nights.[18]
Right to Speech and Expression as against the lives of Celebrities
Due to their prominent position in society and a vast access to mass media communication, celebrities have the power to influence public opinion on various policy matters and to generate ‘trends’ which impact diverse patterns of human behaviour ranging from consumer behaviour[19] to daily health choices.[20] Celebrities have a considerable impact on the general public, and hence, the media coverage on their lives will inevitably be different from that of the ordinary public. The right to freedom of speech and expression under Article 19(1)(a) recognises the rights of the media in publishing news pertaining to the matters of public concern.[21] This freedom extends to taking part in uninhibited discussions about the activities of these public figures as they hold an influential position in society.[22] It is the duty of the media to act as a sentinel of public interest, and as such, it is within its capacity to bring to light any malpractices by public figures including acts of favouritism and nepotism.[23]
The existing laws relating to defamation[24] and privacy[25] are reasonable restrictions on the fundamental right to freedom of speech and expression conferred by Article 19(1)(a) of the Indian Constitution as they are saved by Article 19(2)[26]. However, there is no blanket rule or standard for the same. The restrictions of defamation and privacy are impacted by multiple factors, some of which the author has attempted to analyse below.
Legal Recourse
Doctrine of Innuendo
Defamation can be defined as “the publication of a statement which tends to lower a person in estimation of right thinking members of the society generally or which tends to make them shun or avoid that person.”[27]Sometimes, this publication of a defamatory statement happens such that it does not directly reveal the identity of the person, but it might still injure the reputation of the person it is directed to. This is similar to what happens in blind items, i.e. defamatory statements about a person are published, while their identities remain concealed. Such cases attract the application of the ‘Doctrine of Innuendo’ of the tort law. This doctrine states that it is not necessary for an explicit statement to exist to injure someone’s reputation.[28] The ‘doctrine of innuendo’ is applicable when words are prima facie innocent, but point out to a secondary meaning which is defamatory in nature.[29]
In the case of blind items, there are a series of injurious statements describing a particular person whose name is obscured. In usual circumstances, if the plaintiff proves that a) the statements were false, b) the statements were harmful to his reputation, and c) the people who knew him could reasonably infer the statements to be directed to him, then he/she can claim damages under the doctrine.[30] In the case of a celebrity, he/she will also have to prove that in addition to the statements being false, the statements were also either reported with malicious intent or with disregard of whether the statements were true or false. This saves the media from any legal repercussions if it has reported the matter in good faith.[31] The Sullivan Doctrine was adopted by the Indian Judiciary and the need for heightened degree of proof in defamation cases pertaining to public figures was recognised.[32] This is because, as discussed above, citizens have a legitimate interest in the conduct of public figures due to the immense influence they have on society.[33] Citizens and the media must hence, be able to freely debate issues of ‘public interest’ about public figures without the fear of being sued.[34] Laws should be made such that they must not have a chilling effect on matters of public interest and must not deter people from being able to voice their criticisms freely.[35]
However, what if the information published is true? Does the celebrity not have an option of taking a legal recourse then? Does that mean that everything that is true about the celebrity can be allowed to be public?
Celebrity Privacy
In simple words, the right to privacy can be defined as the “right to be left alone.[36]” It is considered an intrinsic part of the right to life and personal liberty under Article 21 of the Indian Constitution.[37] However, this right is not absolute.[38] It sometimes comes in conflict with the right to freedom of speech of a person wanting to disclose private information about another individual. In cases of such a conflict, one of these rights does not enjoy precedence over another.[39] Both the rights must be balanced against each other[40], and a comparative assessment must be conducted on a case to case basis.[41] The conflict can be resolved by balancing the right to speech and the right to privacy by viewing the ‘public interest’ of the subject matter involved. If the subject matter is of some legitimate public interest, then the right to speech prevails over the right to privacy, and vice versa.[42] Despite the fact that there is no set definition of the term ‘public interest’, the courts have reiterated in various judgements that public interest is a matter in which the public has a pecuniary, legal or social interest rather than something that fulfils mere curiosity of the public.[43] Similarly, there is no ‘public interest’ in the right to speech when it is exercised simply to quench public curiosity.[44] For example, if something related to the sexual life of B is published, it is generally a matter of ‘public curiosity’ and not ‘public interest’ and hence falls under a claim of right to privacy.[45]
Indian Courts have reiterated that the privacy expectation of a celebrity is different from that of an average person.[46] There is a very thin line between a celebrity’s ‘private information’ and the ‘public interest’ of that information.[47] Metaphorically, if privacy were to be a balloon, it would expand and shrink from situation to situation and person to person.[48] For example, the privacy rights of a public figure might be different from that of an average person in a particular situation, and it might also be different for a particular person in different situations. The balloon might be smaller for a public figure as compared to an average person; it might also be smaller in a situation where the subject matter involved is of some public interest as opposed to a subject matter which merely quenches public curiosity. For example, if A is a celebrity and B is an average member of the public and it is published that both of them have undergone a skin whitening treatment, it is certainly a privacy violation for B. However, A is followed by millions of people and his actions have a significant impact on the general public. If he undergoes a skin whitening treatment, he ends up promoting (intentionally or unintentionally) the white skin-tone, hence contributing to racial discrimination. Hence, the public has an interest in this information with respect to A, who is a celebrity but not with respect to B, who is an average member of the public.
The fact that somebody engages in an activity that is a matter of public interest does not mean that each and every aspect of their personal life is a matter of public interest.[49] When the subject matter is the private life of the celebrity and it contributes nothing to the interest of the society, the scope of freedom of speech must be narrowed and the right to privacy must be widened.[50]
Conclusion
It is pertinent to note that the Indian Jurisprudence lacks a detailed legislation on celebrity rights, especially celebrity privacy rights.[51] Further, even though judicial precedents are available with respect to public figures like people who hold public offices, there are hardly any case laws specifically related to celebrities. The privacy rights of ‘public officials’ are partially defined[52] under the Indian Jurisprudence, yet it fails to bring under its ambit those who are not ‘government employees’ like people in the entertainment or sporting industry who also hold an important place in the society.[53] Further, the term ‘public interest’ does not have a set definition and hence, it can be raised anywhere as a defence in any matters concerning the celebrities.[54] Due to this, there are no set guidelines that the courts have followed while deciding cases. This has led to ambiguity in the rights that celebrities possess.
The media also seems to be only taking advantage of the fact that celebrities do not report their highly offensive and privacy-violative blind items. The media shies away from fact checking and irresponsibly reports these items[55] with only one aim in mind- Commercial Gain. Most of the blind items are not only falsely written but are also hardly relevant to the ‘public interest’.[56] Blind items have furthered the normalisation of irresponsible reporting that infringes upon the privacy rights of celebrities.
There can surely be no ‘bright-line rules’ to determine where celebrity rights should be overshadowed by the public interest and where they should stay firm. However, there exists a need for courts and the legislature to come up with proper guidelines that not only provide for a proper recourse to the celebrities in case of any violation of their rights, but also lays down certain ethical standards for the media to follow.
The author, Mishika Bedi, is currently a law student at the Symbiosis Law School, Pune.
[1] Not So Blind Items: Anonymous Celebrity Gossip Exposed, MIT, available at http://web.mit.edu/comm-forum/legacy/mit8/papers/Ortner_MIT8_Blind_Items.pdf, last seen on 01/08/2020.
[2] Should Blind items be put to sleep?, Vidya Hattangadi, available at http://drvidyahattangadi.com/should-blind-items-be-put-to-sleep/, last seen on 12/08/2020.
[3] Kriti Sanon calls social media ‘fake, toxic place’, blasts media for ‘blind items’ after Sushant Singh Rajput’s suicide, Zee News, available at https://zeenews.india.com/people/kriti-sanon-calls-social-media-fake-toxic-place-blasts-media-for-blind-items-after-sushant-singh-rajputs-suicide-2290416.html, last seen on 12/08/2020; Kangana Ranaut hits out at ‘blind Items’ written on Sushant Singh Rajput; talks about ‘mental lynching’, Asianet News, available at https://newsable.asianetnews.com/video/entertainment/kangana-ranaut-hits-out-at-blind-items-written-on-sushant-singh-rajput-talks-about-mental-lynching–qc7wiz, last seen on 12/08/2020.
[4]The 30 Most Popular Celebrity Gossip Sites And Why Big Brands Love Them, Forbes, available at https://www.forbes.com/sites/marketshare/2013/05/24/the-30-most-popular-celebrity-gossip-sites-and-why-big-brands-love-them/#395cd7ee5264, last seen on 12/08/2020.
[5] L. Fortunati, Reflections on mediated gossip, 45, 45 in Engagement and Exposure: Mobile Communication and the Ethics of Social Networking (Kristóf Nyíri, 2009)
[6]India: Defamation Against Blind Items, Mondaq, available at https://www.mondaq.com/india/libel-defamation/958030/defamation-against-blind-items, last seen on 01/08/2020.
[7] Ibid.
[8] Supra 1.
[9]Websites are devoted to scandalous anonymous gossip on celebrities, and the issue’s back in the spotlight with Sushant Singh Rajput’s death, Patriot, available at http://thepatriot.in/2020/07/03/gossip-anonymous/, last seen on 08/08/2020.
[10]The Juiciest Anonymous Gossip of 2017, The Cut, available at https://www.thecut.com/2017/12/juiciest-celebrity-gossip-of-2017.html, last seen on 01/08/2020.
[11]Opinion | Why blind items must die in 2020, Live Mint, available at https://www.livemint.com/mint-lounge/features/why-blind-items-must-die-in-2020-11592568725317.html, last seen on 01/08/2020.
[12] Supra 1.
[13] ‘Nasty, irresponsible, shameless’: Why do blind items still hold currency in Bollywood?, Newslaundry.com, available at https://www.newslaundry.com/2020/06/27/nasty-irresponsible-shameless-why-do-blind-items-still-hold-currency-in-bollywood, last seen on 08/08/2020.
[14]Blind Item-February-Bollywood-2018, One Shot One Place, available at https://www.oneshotoneplace.com/blind-item-february-bollywood-2018/, last seen on 08/08/2020; Guess Who: This actress is tolerating physical abuse because she is madly in love, Pinkvilla, available at https://www.pinkvilla.com/entertainment/guess-who/guess-who-actress-tolerating-physical-abuse-she-madly-love-397092, last seen on 08/08/2020.
[15] Blind Item (Mumbai Mirror)- Troubled Actor- 28th, The Opinionated Indian, available at http://theopinionatedindian.com/blind-itemmumbai-mirror-troubled-actor-28th-sept/, last seen on 08/08/2020.
[16] EXCLUSIVE: Guess Who? This actor’s philandering ways may land him to the JAIL, Pinkvilla, available at https://www.pinkvilla.com/entertainment/exclusives/exclusive-guess-who-actors-philandering-ways-may-land-him-jail-428582, last seen on 08/08/2020.
[17] Guess Who: This actor has been asked to vacate his apartment after neighbours complain of his lifestyle, Pinkvilla, available at https://www.pinkvilla.com/entertainment/exclusives/guess-who-actor-has-been-asked-vacate-his-apartment-after-neighbours-complain-his-lifestyle-537162, last seen on 08/08/2020.
[18] Director Kushal Zaveri says Sushant Singh Rajput couldn’t ‘sleep for 4 nights’ during #MeToo allegations, Pinkvilla, available at https://www.pinkvilla.com/entertainment/news/director-kushal-zaveri-says-sushant-singh-rajput-couldnt-sleep-4-nights-during-metoo-allegations-554824, last seen on 08/08/2020.
[19] M. Moraes, J. Gountas, S. Gountas & P. Sharma, Celebrity influences on consumer decision making: new insights and research directions, 35 Journal of Marketing Management 1, 10 (2019), available at https://www.tandfonline.com/doi/abs/10.1080/0267257X.2019.1632373?src=recsys&journalCode=rjmm20&, last seen on 12/08/2020.
[20] S.J. Hoffman, Y. Mansoor, N. Natt, et al., Celebrities’ impact on health-related knowledge, attitudes, behaviors, and status outcomes: protocol for a systematic review, meta-analysis, and meta-regression analysis, 6 Systematic Reviews 1, 11 (2017), available at https://doi.org/10.1186/s13643-016-0395-1, last seen on 12/08/2020.
[21]Sakal Papers (P) Ltd., And Others v. The Union of India, 1962 AIR 305.
[22]R. Rajagopal v. State Of T.N, 1995 AIR 264.
[23]Shobhana Bhartia v. NCT of Delhi, (2007) ILR 7 Delhi 1.
[24]Seervai, Constitutional Law of India, 495 (3rd ed., 1984).
[25]Sasikala Pushpa v. Facebook India And Ors, MANU/DE/1143/2020.
[26] Art. 19(2), the Constitution of India.
[27] P.S.A. Pillai, Law of Tort (9th ed., 2004)
[28]V. Subair v. P.K. Sudhakaran, 1987 CriLJ 736.
[29] A. Singh & H. Kaur, Introduction to the Law of Torts, 114 (2nd ed., 2009).
[30] Frank Finn Management Consultants v. Subhash Motwani and Ors., (2009) ILR 2 Delhi 158.
[31] Supra 22.
[32] New York Times Co. v. Sullivan, 376 U.S. 254 (1964, Supreme Court of the United States).
[33]Supra 22.
[34] Ram Jethmalani v. Subramaniam Swamy, AIR 2006 Delhi 300.
[35] Nirmaljit Singh Narula v. Sh.Yashwant Singh & Ors., 2012 ( 132 ) DRJ 370.
[36]Black’s Law Dictionary (10th ed. 2014).
[37]K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
[38] Ibid.
[39] Deepti Kapur v. Kunal Julka, 2020 SCC OnLine Del 672.
[40] Khushwant Singh And Anr. v. Maneka Gandhi, AIR 2002 Delhi 58.
[41] Govind v. State Of Madhya Pradesh & Anr, 1975 AIR 1378; R. Rajagopal v. State Of T.N, 1995 AIR 264.
[42] Petronet Lng Ltd v. Indian Petro Group And Another, (2009) 158 DLT 759 (Del).
[43] Indu Jain v. Forbes Incorporated, (2007) ILR 8 Delhi 9;Dattaraj Nathuji Thaware v. State Of Maharashtra &Ors, AIR 2005 SC 540; V. Gnanasambandam and Ors. v. The District Collector, MANU/TN/2282/2019.
[44] Von Hannover v Germany, [2005] 40 EHRR 1, [65]-[66] (European Court of Human Rights).
[45] P. Wragg, A Freedom to Criticise – Evaluating the Public Interest in Celebrity Gossip after Mosley and Terry, 2 Journal of Media Law 295, 317 (2010), available at https://www.tandfonline.com/doi/abs/10.1080/17577640.2010.11675781, last seen on 01/08/2020; Kareena-Shahid photos not in good taste: SC, The Tribune, available at https://www.tribuneindia.com/2004/20041218/nation.htm#3, last seen on 12/08/2020.
[46] Khushwant Singh and Anr. v. Maneka Gandhi, AIR 2002 Delhi 58.
[47] C. Palmer, Celebrity Privacy: How France Solves Privacy Problems Celebrities Face in the United States, 50 California Western International Law Journal 245, 253 (2019), available at https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwju9OKs0vrqAhVZ7XMBHVijD3kQFjAAegQIAhAB&url=https%3A%2F%2Fscholarlycommons.law.cwsl.edu%2Fcwilj%2Fvol50%2Fiss1%2F9%2F&usg=AOvVaw2sUKd5Hpp5z53rKYshpaeT, last seen on 01/08/2020.
[48] S.Y. Ravid & B.Z. Lahav, Public Interest Vs. Private Lives—Affording Public Figures Privacy In The Digital Era:
The Three Principle Filtering Model, 19 Journal of Constitutional Law 975, 999 (2017), available at https://pdfs.semanticscholar.org/428e/51e56e8896efd9b9a82d5ea0dec4e233bae7.pdf, last seen on 01/08/2020.
[49]Virgil v. Time, Inc., 527 F.2d 1122, 1131 (1975, United States Court of Appeals); Phoolan Devi v. Shekhar Kapoor and ors., 1995 (32) DRJ 142.
[50] Supra 48.
[51]Freedom of Expression & Privacy, The Centre for Internet & Society, available at https://cis-india.org/internet-governance/blog/freedom-of-expression-and-privacy.pdf, last seen on 12/08/2020.
[52] S. 8, Right to Information Act, 2005.
[53] Supra 51.
[54] Supra 51.
[55] Supra 13.
[56] Supra 8.
The Journal of Indian Law and Society 