RIGHT TO PRIVACY IN INDIA: ROLE OF THE MEDIA

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THIS ARTICLE WAS WRITTEN BY AGAM BANSAL, A STUDENT OF  RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PATIALA, PUNJAB

INTRODUCTION

Privacy is a right inherent in every human being from the time of his birth. Although it is difficult to give a rigid definition of the term ‘privacy’, its essential meaning is for a person to enjoy individual autonomy and confidentiality. Coming to a more precise meaning, privacy can mean anything ranging from bodily integrity and informational self-determination to dignity, compelled speech and freedom to dissent.[1]

RIGHT TO PRIVACY IN THE INTERNATIONAL ARENA

Privacy is given utmost importance in the international sphere. Article 12 of the Universal Declaration of Human Rights, 1948 gives due mention to the Right to Privacy enjoyed by mankind and says that law must protect anyone whose Right to Privacy is infringed upon.

“Article 12—- No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”[2]

Article 17 of the International Covenant on Civil and Political Rights, 1966 also contains a similar mention.

“Article 17—- 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.”[3]

Article 7 and Article 8 of the Charter of Fundamental Rights of the European Union give a more exhaustive meaning to the Right to Privacy.

“Article 7—- Respect for private and family life. Everyone has the right to respect for his or her private and family life, home and communications.”[4]

“Article 8—- Protection of personal data. 1. Everyone has the right to the protection of personal data concerning him or her.

2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority.”[5]

INDIA AND THE RIGHT TO PRIVACY

Right to Privacy is regarded as a fundamental right in India. It forms part of Article 21 i.e. the right to life and personal liberty, and Part III i.e. the Chapter on fundamental rights, in the Indian Constitution.

“21. Protection of life and personal liberty.—- No person shall be deprived of his life or personal liberty except according to procedure established by law.”[6]

The Right to Privacy in India was declared as a fundamental right by the Supreme Court as recently as 2017. Prior to that, there had been a couple of judgements which ruled on the contrary and did not allow for the Right to Privacy to be regarded as a fundamental right. The first judgement in this regard was that of M.P. Sharma v. Satish Chandra[7] of 1954. This judgement relates to the right against self-incrimination. In this judgement, the eight-judge bench had to ascertain whether the government’s right to search and seizure was constitutional or not and whether it would amount to a breach of one’s right to privacy. Since, the concept was relatively new, the court did not dwell much into it.

In 1962, in the case of Kharak Singh v. State of Uttar Pradesh,[8] the court clearly pointed out that Right to Privacy is not guaranteed under the Indian Constitution. The court ruled that any attempt to ascertain the movements of a person is not an infringement of a fundamental right.

Then, in 2017, came the landmark case of K.S. Puttaswamy v. Union of India.[9] A nine-judge bench of the Supreme Court gave the judgement in this case which proved to be monumental with regards to the Right to Privacy in our country. The bench declared the Right to Privacy as a fundamental right, which can be derived from Articles 14, 19 and 21 of the Constitution i.e. protection of life and personal liberty, and is protected under Part III of the Constitution. In this unanimous verdict, the court observed that this right protects an individual from the scrutiny of the State in his home, his movements, choice of partner, reproductive choices etc. Any act of the State which infringes this right of the individual will fall under judicial review of the Court. The Court also ruled that this right is not absolute and reasonable restrictions can be imposed by the State in order to protect the larger public interest.

MEDIA’S IMPACT ON THE RIGHT TO PRIVACY

4.1 Media Trials

Trials by media is one of the major threats to privacy. Media trials are a direct infringement of a person’s Right to Privacy. Indian media has, over the years, portrayed itself as one which gives enormous amount of publicity to the accused, witnesses, suspects, victims or any such people involved in a high-profile case. This is not only an invasion of their privacy but also an indirect threat to their lives. This constant attention can put the lives of such people in danger and can also force them to turn hostile. Media gives its decision on the case prior to the court. This decision is based on popular sentiment of the masses and running such a story helps in raising the TRPs. Journalists often refer to this as an act to supress their freedom of speech. However, it is important for the media to show true and reliable information and wait for the decision of the judicial authorities. Media victimisation leads to the popular sentiment going against the particular individual hence, tarnishing his image and reputation in society.[10]

4.2 Right to Privacy and Social Media

Social media refers to an internet-based platform where people communicate through various socialising apps and websites. Such websites require the users to share their personal information on the website portal. Websites like Facebook, Instagram, WhatsApp, Amazon, Flipkart etc. require the users to give their personal details in order to get registered. These websites further share this information for advertising purposes which leads to the misuse of these details in order to harass the individuals. Websites asking for such sensitive information cannot do so, since it’s an infringement of the Right to Privacy.

Cybercrime came to the fore during the mid 1990s. Since then it has evolved and developed to such an extent that people have fallen prey to sexual predators, identity thefts, defamation, cyber stalking etc. The Amazon.in case and the koobface scam are recent examples of how the private data uploaded by the people online is misused in order to threaten them.[11]

Youngsters are the ones who most often fall prey to the world of cybercrime. This is because of the lack of maturity. Youngsters don’t think of the pros and cons before they share information online. In fact, the young generation shares information even with people whom they don’t know. They are not able to think and form a rational judgement as to what can be the consequences of such laxity. Their capacity to judge what is right and wrong is clouded and hence, they become victim to these online predators.

4.3 Statutory Provisions in India Protecting People against Cybercrimes

There are no explicit provisions in the Constitution of India which protect data privacy infringement. Although there is Article 21, but it is insufficient and inadequate for protection of data privacy.

However, in order to protect the people from data privacy infringements, the legislature enacted the Information Technology Act, 2000. This Act does not completely dilute the risk of cybercrimes but reduces it to a certain extent. Sections 43, 66, 66F and 67 of the Information Technology Act, 2000 protect the user’s privacy against data-related crimes.

5. CONCLUSION

Right to Privacy is a fairly new fundamental right which has been recognised by the courts in India. Prior to 2017, it was not considered a fundamental right and hence, had no express value. But since 2017, its scope has changed and a number of privacy infringement writs have been filed in various high courts across the country and the Supreme Court.

Indian media and Right to Privacy have remained at loggerheads since a pretty long time. The freedom of press versus the right to privacy debate has been going on for years. It is important for the press and the journalists to realise that media trials and media victimisation might provide a big boom to the TRPs but it should not come at the cost of exposing the lives of people, who might be innocent, in the public domain.

Also, with regards to privacy infringement on social media, it is important that the courts and the government take cognisance of such infringements and eliminate these online predators.

[1] Krishnadas Rajagopal, The Lowdown on the Right to Privacy, THE HINDU (Jul. 29, 2017, 08:15 PM), https://www.thehindu.com/news/national/the-lowdown-on-the-right-to-privacy/article19386366.ece.

[2] Art. 12, Universal Declaration of Human Rights (Dec. 10, 1948).

[3] Art. 17, International Covenant on Civil and Political Rights (Dec. 16, 1966).

[4] Art. 7, Charter of Fundamental Rights of the European Union (Oct. 2, 2000).

[5] Art. 8, Charter of Fundamental Rights of the European Union (Oct. 2, 2000).

[6] INDIA CONST. art. 21.

[7] M.P. Sharma & Ors. v. Satish Chandra & Ors., (1954) 1 S.C.R. 1077.

[8] Kharak Singh v. The State of U.P. & Ors., (1964) 1 S.C.R. 332.

[9] Justice K.S. Puttaswamy & Ors. v. Union of India & Ors., (2017) 10 S.C.C. 1.

[10] Sonal Makhija, Privacy & Media Law, THE CENTRE FOR INTERNET & SOCIETY (Jul. 19, 2011), https://cis-india.org/internet-governance/blog/privacy/privacy-media-law.

[11] Smita Gupta, Right to Privacy: Concerns Vis-à-vis Social Media, RGNUL STUDENT RESEARCH REVIEW (Oct. 27, 2018), http://rsrr.in/2018/10/27/right-to-privacy-concerns-vis-a-vis-social-media/.