International Law

Petronet LNG v. Indian Petro Group : Two Unpleaded Torts

By Apar Gupta

One of the decisions I came across while recently authoring a paper on privacy law was the Delhi High Court decision in the case of Petronet LNG v. Indian Petro Group and Anr. (CS (OS) No. 1102/2006). What I found interesting were the categorical findings in the decision on the rights of privacy, which often causes courts to unnecessarily digress and even unnecessarily employ foreign precedent. The Plaintiff (LNG Petronet), a company setting up LNG terminals in the country objected to the Defendant approached the Court asking it to restrain the Defendant from publishing information relating to the plaintiff’s commercial developments on the defendants website at www.indianpetro.com. The Plaintiff alleged that these news reports published by the Defendants was interfering in its contract negotiations with third parties as well as limiting the Plaintiffs ability to negotiate as to the rates for LNG supply.

The legal grounds utilized to press for the relief was on  the grounds of, (a) breaches to the right of privacy; (b) publication of the information related to confidential negotiations and contractual clauses; (c) the publication violated the SEBI regulation on price sensitive information. The court rejected all the three contentions, playing on ?public interest? served in the disclosure of the information as opposed to a ?gag order? placed on a journalistic entity, especially when the information related to a company which was partly owned by the government as well as provided public utility services.

Privacy

The court dealt with the arguments advanced on the grounds by the Plaintiff on the issue of privacy through a study of legal precedent. The argument was defeated by the court easily holding that, that the right to privacy arises under Article 21 and can as a constitutional limitation be placed only on public authorities. The court categorically holds that:

38. In view of the above discussion, it is held that the present suit, so far as it is founded on a claim for breach of the plaintiff’s right to privacy, as part of Article 21 of the Constitution of India, is not maintainable. Neither is the plaintiff a person, entitled to the right to life and concomitant attributes of that right -which includes the right to privacy- nor is such right, assuming it to be applicable to companies and corporations, available against non-state individuals, or “actors”. This issue is, accordingly answered against the plaintiff

Through my review I have found Indian cases where the tort of privacy has also been utilized by Plaintiffs. It is indeed quite odd that for a case built on the primary contention of violation of privacy, infringement of privacy as an independent tort has not been pleaded. It is true that the majority of cases where the tort of privacy has been pleaded do not offer a categorical pronouncement the issue or become too remote for application. However, the tort of privacy has clearly been recognized in Indian Law and for the Plaintiff not to plead it, is surely a lost opportunity.

Confidentiality of Information

The Plaintiffs assertions of confidentiality of the information properly arise from the confidentiality clauses in the agreements and the negotiations the Plaintiff entered into. The problem which is posed by this line of argument is the difficulty of placing third party obligations arising from a contract which can naturally only bind the parties to the contract. The plaintiff, probably realizing, the dangers its argument was fraught with, pleaded confidentiality in the nature of information itself, stating it to be, ?extremely sensitive?. The court rejected the argument giving its, reasons as follows:

72. In view of above conclusions, it is held that the plaintiff has been unable to substantiate its claim for confidentiality or that the information in regard to the news items complained against are of such sensitive nature as to warrant prior restraint of their disclosure. On the other hand, the defendants, in the opinion of the Court, have been able to show public interest in news reporting and discussion about the plaintiff’s functioning – in the areas sought not to be intedicted by the kind of injunction sought. Clearly, the grant of injunction would destroy the very essence of press freedom and the right of the general public to be informed about the functioning of an entity in which 50% stake is held by the Central Public Sector Undertakings.

In my opinion an argument which could have been adopted premised on the tort of tortuous interference. The ingredients of tortuous interference could have are clearly satisfied in the instant case. Moreover, the Plaintiff, is seeking a claim which falls in the pith and substance of tortuous interference. Again, though tortuous interference has been pleaded in Indian Courts, there is an absence of a categorical pronouncement in this regard. Moreover, tortuous interference as a concept has been pleaded in employment contracts. However, again, I find no reason not to plead it as a ground. Technology has recently given a new lease of life as well as revitalized old torts such as, trespass to chattels. In my opinion, tort law depending on the level of judicial acceptance, had the power and persuasiveness to change the ultimate decision in the instant case.

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Full post as published by India Law & Tech on March 12, 2010 (boomark / email).