Rights of Media and Privacy Issues: Bridging the Gap

ABSTRACT

Media is a social instrument that is powerful enough to mould a society, to develop or destruct it. It is a force that could be put to much constructive use in the right hands. But, the social motive behind it is being lost in the present times. Given such a huge social impact, it is also necessary to keep such a force in check. In the present times, the lack of a properly defined system of law regulating the media has given way to increasing incidences of infraction of privacy of individuals and derailment from the true purpose of the media in society. While insinuations made by the media on factual basis must be given protection, the wrongful wielding of pen and power should be condemned. This article has been written with a view to analyze the issues of modern media and its effect on the right to privacy of individuals.

INTRODUCTION

“Civilization is the progress toward a society of privacy. The savage’s whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.”[1]

The law relating to privacy is of recent origin and it recognizes an individual’s right to be let alone. This right is not restricted merely to his physical being and property but it also extends to his mind space. He possesses the right to control the flow of information with him and keep it out of the purview of the public. Before the advent of visual and electronic media the question of privacy was a subtle one as newspapers had only a limited impact given the vast majority of illiterate population.  But with the modern media finding green pastures in India the issue of privacy has gained importance. The lack of centralization which existed prior to the internet age has changed since its onset by which now startling amounts of personal information about an individual is accessible with one tap on a button. The risk of information reaching the wrong hands has become very high. There has been an unprecedented information revolution and the regulatory mechanisms existent now to control the spread of information are limited in many ways and have failed in curtailing the overstepping of the media. The laws in India have proved to be inadequate to counter these situations and it is now necessary to have an overhauling of the system.

PRIVACY AND RIGHT TO FREE SPEECH

“Privacy is vital to the mental, spiritual and physical well being of all individuals and also to the morality and personality of the individual.”[2]

The right to freedom of speech and expression and right to privacy are intricately connected. In a liberal democracy like India, citizens have a right to talk on the telephone, send e-mail, watch television  and surf the internet without interference of government unless for compelling reasons such as legitimate defense and national security considerations.[3] A person who exercises his right to know and be informed may violate another person’s right to privacy. According to the New Oxford dictionary[4] privacy is the ‘absence or avoidance of publicity or display; the state or condition from being from society of others, or from public interest, seclusion”. The Black’s law dictionary [5]  has defined it as ‘the right to be let alone; the right of a person to be away from unwanted publicity; and the right to live without unwanted interference by public in matter with which the public is not necessarily concerned.”

The Right to privacy in India has derived itself from two sources: the common law of torts and constitutional law.[6] Under common law, a private action for damages lies for unlawful invasion of privacy. In Gobind v. State of Madhya Pradesh[7], it was held that the printer and publisher of a journal, magazine or book are liable in damages if they publish any matter concerning the private life of the individual, which would include his family, marriage, procreation, parenthood, child bearing, education etc. without his consent. However this is with two exceptions which are that this right is not applicable where the publication has become public record and publication which relates to discharge of official duties of a public servant, unless the publication is proved false, malicious or is untruthful.

Under the constitutional law, the right to privacy is not a specific fundamental right but has nevertheless gained recognition. Despite not being enumerated in various reasonable restrictions to the right to freedom of speech and expression enlisted under Article 19(2), the Courts have carved out a Constitutional right to privacy through a liberal interpretation of the right to life and liberty under Art 21.[8] In Kharak Singh v. State of Punjab[9], the Supreme Court conferred judicial recognition upon the right to privacy as an aspect of the fundamental right to life and personal liberty enunciated under Article 21 of the Constitution. The rights to privacy vis-à-vis invasions by journalists were observed in Sheela Barse v Union of India[10], Prabha Dutt v Union of India[11]and also State v Charulata Joshi[12]. In two decisions the Supreme Court considered the nexus between right to privacy and electronic communications. In RM Malkhani v. State of Maharastra[13] the court held that it was important to protect citizen’s telephonic conversations and declined the argument of the accused that secret taping violated his article 21[14] as his privacy had been disturbed. In People’s Union for Civil Liberties v. Union of India[15] the court suggested that unauthorized telephone interception infringes the right to privacy.

Further, in international treaties[16], to which India is a signatory, contain provisions for the protection of individual privacy. Therefore, India has the responsibility to incorporate the ideals safeguard therein in the domestic laws.    

MODERN MEDIA AND PRIVACY ISSUES

Every democracy gets the Government it deserves and every society its media. In a country with as robust and multi-faceted a freedom of expression as India, media plays a very significant role in balancing the interests of public and exercise of its powers. Just as the media is blessed with freedom of speech and expression for spreading awareness and catering to the right to know of the public, it is equally important to ensure the privacy of individuals which is an objective sought to be achieved by the law of privacy. It has been observed by the apex court that, “When there is a competition between the right to privacy of an individual and the right to information of the citizens, the former right has to be subordinated to the latter right as it serves larger public interest.”[17]

In State of U.P v Raj Narain[18] the Supreme Court has observed that, “The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security.”

The unbridled expansion of media poses a severe threat to privacy of individuals. Also with the boom of the internet and coming of the age of information revolution almost all barriers have been removed in accessibility of information. The Right to Information Act, 2005 also stresses on an open society for reasons of transparency and according to Section 8[19] of the Act unwarranted invasion of privacy has been listed as an exception to the right to information.

Privatization and globalization has taken its toll on information dissemination. Presently, we see a shift in the purposes attributed to the media; there is a rat-race for enhanced readership and high TRP ratings. Media now is controlled by large corporate entities which are driven by the sole motive of profit-making, wherein the success and efficiency of media is measured on a scale of commercial ratings and not on one of social contributions. The race for high ratings has reflected as a major setback in the quality of media itself. Even in news channels, the TRP factor is given foremost importance and sensationalism being the key word leads to information overkill. Media has been time and again criticized for sensationalism, exaggeration of news, reporting false and fabricated news and yellow journalism. The result is that media has ignored public interest in the struggle to satisfy the viewer/reader interest.

An outrageous example of sensationalisation of news was the 26/11 issue where a national tragedy was turned into bait for profit using emotional trivia by the various competing channels. They try to create hype out of factual news and attract viewers using the private life of celebrities and other citizens through scrupulous efforts. Also in People’s Union for Civil Liberties v. Union of India[20], the apex court observed that the interception of telephonic conversations and unauthorized tapping impinges on the right to privacy of individuals and formulated guidelines to be adopted by the government when it intercepts telephonic conversations. These guidelines were also included in the Telegraph rules.

 Also the power of media in reporting of trials must not adversely affect the ideal of fair trial and tarnishing the image of parties to the case. Any opprobrious judgment made by the media either with malice or ignorance, with regard to the cases can sway public opinion. Regulations must be put in place while disseminating information to the media by police officers and lawyers during pendency of litigation and investigation. The introduction camera in courts will also facilitate more transparency in proceedings. Hence utmost caution must be exercised by the media in such matters and responsible journalism should be practiced.

CONCLUSION

Louis Brandeis J in a celebrated judgment has said that right to privacy is ‘the right most valued by civilized men.”[21] Lord Hoffmann [22] has observed in relation to the complaints against media that there is no logical ground for saying that a person should have less protection against a private individual than he would have against the state for the publication of personal information for which there is no justification.[23]

The rights to privacy and to freedom speech appear to be of equal value. A proportionate analysis should be applied to both, so the court should ask whether it was necessary to restrict publication in order to protect privacy, and vice versa, whether to allow the publication would disproportionately sacrifice the individual’s privacy.[24]Protection awarded to the right to privacy must be weighed against public interest. State cannot impose prior restrain upon freedom of the press on the ground that relevant publication would offend the privacy of an individual or would defame a public official; the remedy in all such cases would be for the aggrieved person under the appropriate law after the offending matter is published.[25] However it is also to be expatiated that the right to privacy should not be allowed to mask illegal activities.

A happy balance need to be struck between a fearless and free right to speech and proving the supremacy of law over pugnacious, malignant and unethical behavior from the fourth estate. This can be done only when the media holds aloft the spirit of values and truth and rise above vested interests and lower loyalties to be truly a part of the democratic system.