Media and the Right to Privacy: Incursion of Social Media

Introduction:

“Privacy isn’t something that everyone is simply entitled to; it’s an absolute birthright of everyone.”

Privacy enables us to form boundaries and protect ourselves from unwarranted interference in our lives, allowing us to barter who we are and therefore the way we might wish to interact with the earth around us.

Privacy protects us from arbitrary and unjustified use of power by states, companies, and other actors. It lets us regulate what is often known about us and done to us while protecting us from others who might get to exert control.

The Right to Privacy is a fundamental right of a person’s being. It fortifies human dignity and other values like freedom of association and freedom of speech. It’s become one of the foremast important human rights problems with the fashionable age. It’s recognized around the world in diverse regions and cultures and guarded within the Universal Declaration of Human Rights and it is protected in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and in many other international and regional human rights treaties.

The Right to Privacy

The Right to Privacy has been well described “as the condition or the state of being free from public attention to obstruction into or impinge with one’s acts or decision”. However, in India whether the proper to privacy may be a fundamental right or not, has always been during a heated discussion.

Indian Laws for Social Media and Privacy

The laws which are available in India aren’t sufficient to guard individual privacy. However, our Constitution has provided Article 21 as a privacy lock which is insufficient to provide adequate protection to the information. Thanks to a scarcity of Constitutional and legislative measures to guard privacy. The victims of press abuse need to take the help of tort law. Tort law doesn’t ask Privacy but only other offences like  libel, slander, defamation, morality, and decency. These different offences form part of the term Privacy but individually these offences can never fulfill the necessity for safeguarding the privacy faced by individuals. Even the Indian penal code has allowed punishment or penalty for the above offences but not for privacy.

Although within the year 2000, the legislature made effort to grab social media privacy issues, and currently India’s most comprehensive legal provisions that talk of privacy on the web is that the Information Technology Act, 2000 (referred to as “IT Act”). Albeit it cannot completely safeguard privacy, it can mitigate it to an extent. Provisions that protect user privacy include Section 43, 66, 66F, and 67 of the Information Technology Act, 2000, and also the principles of the Act.[1]

Punishment

Section 66E (Punishment for violation of privacy): Whoever, intentionally or knowingly captures, publishes or transmits the image of a personal area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may reach three years or with fine not exceeding two lakh rupees, or with both.[2]

International Perspective

Privacy could also be a fundamental right recognized within the UN Declaration of Human Rights, the International Covenant on Civil and Political Rights, and in many other international and regional treaties. Privacy underpins human dignity and other key values like freedom of association and freedom of speech. it’s become one of the foremost important human rights problems with the fashionable age.

Nearly every country within the world recognizes a right of privacy explicitly in their Constitution. At a minimum, these provisions include rights of inviolability of the house and secrecy of communications. Most recently-written Constitutions like South Africa’s and Hungary’s include specific rights to access and control one’s personal information.

In many of the countries where privacy isn’t explicitly recognized within the constitution, just like the U.S, Ireland, and India, the courts have found that right in other provisions. In many countries, international agreements that recognize privacy rights just like the International Covenant on Civil and Political Rights or the European Convention on Human Rights are adopted into law.

In the early 1970s, countries began adopting broad laws intended to protect individual privacy. Everywhere in the world, there is a general movement towards the adoption of comprehensive privacy laws that set a framework for canopy. Most of those laws are supported the models introduced by the Organization for Economic Cooperation and Development and thus the Council of Europe.[3]

The interference of Social Media in Personal Lives (Present Scenario)

Social networking sites are an internet platform that folks use to make social networks or social relations with people that share the same personal or career interests, activities, backgrounds, or real-life connections. Social media is distributed across various computer networks, linking People, organization, and knowledge or we will say that it’s an internet-based communication that everybody used it on day to day basis to communicate instantaneously with one another with convenience. This idea arises from the essential need of peoples to remain together in groups forming a community.

Wikipedia defines social network service as an online platform that focuses on building and reflecting social networks or social relations among people who share interests and activities. Social networking sites, email, instant messaging, video- and photo- sharing sites and comment posting are all tools that help people talk and socialize with each other. The primary social networking site SixDegrees.com was launched in 1997. It allowed users to form profiles, list their friends, and surf the friends’ list.

Other Social networking sites like Facebook, Twitter, WhatsApp, Hike, and Orkut have become very hip among the people of this country or worldwide within the past few years. But to use these sites everyone needs to make a profile by giving all the non-public information but the key purpose of those social networking sites is to ascertain propinquity within the virtual world but everyone should know that this boon was amid curse too.

For Example: The recent trend on social media of memes has been invasive of the privacy of various people. The meme of Scumbag Steve originated from an image of a specific Blake Boston posted on MySpace, a social media platform, circulated without his consent. This caused lots of mental trauma for Blake Boston, and his mother, both.9 This is often one such incident that gained prominence on mainstream media5.

It was also within the news that twitter shared the phone contact of their users onto their website database, just to learn more about their users.

Case Laws

• Indian Constitution doesn’t expressly recognize the right to privacy. But after this landmark case of Kharak Singh v. State of U.P, the Supreme Court for the very first time recognized the right to privacy which is implicit in the Constitution under Article 21. The Court held that the right to privacy is an integral part of the right to life, but without any clear cut laws, it still remains in the gray area. The view was based on the conclusion that the infringement of a fundamental right must be both direct as well as tangible that the freedom guaranteed u/a 19(1)(a)- a right to freedom of speech and expression was not infringed upon by a watch being kept over the movement of the suspect.[4]

• In the Maneka Gandhi case 1978 the Supreme Court included the right to live with personal dignity under the scope of Article 21. After this landmark judgment, the apex court has continued to follow this in other cases and In the case of PUCL v Union of India 1997, the Supreme Court held that tapping of telephone lines causes a breach of privacy of a person, unless it is by the procedure established by law, under Article 21. This essentially brings the right to privacy under the purview of the right to life.

• The Supreme Court of India On 24 August 2017 in a historic judgment of Puttuswamy V. Union of India has declared that the proper privacy is a fundamental right protected under Part III of the Constitution of India. While primarily focused on the individual’s right against the State for violations of their privacy, this landmark judgment will have repercussions across both State and non-State actors and will likely result in the enactment of a comprehensive law on privacy.  [5]

Conclusion

Violation of privacy in India is increasing rapidly, and it’s a time during which India has to give priority to the privacy for diminishing the crime rate However, there are certain flaws which should be eradicated first like:

1. Information Technology Act, 2000 needs a serious rehabilitate concerning social media to widen the definition of privacy.
2. Parliament must pass a new replacement Statue that covers all the aspects including social media, where, as elaborated statutory law is important. 
3. Indian users should tend the choice to opt-out of specific features rather than a singular ‘I Agree’ button.

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References:

[1] Pandey, J. N., & Central Law Agency. (2006). Constitutional law of India. Central Law Agency.

[2] SFLC.IN. (2017a, November 6). Legal provisions that affect privacy. Privacy Bytes.   https://privacy.sflc.in/legislative-provisions/#:~:text=Section%2066E%20(Punishment%20for%20violation

‌[3] Privacy and Human Rights – Overview. (n.d.). Gilc.Org. Retrieved August 26, 2020, from http://gilc.org/privacy/survey/intro.html#:~:text=Privacy%20is%20a%20fundamental%20human

[4] TRILEGAL. (2017b, August 31). India: Supreme Court Declares Right To Privacy A Fundamental Right. Www.Mondaq.Com. https://www.mondaq.com/india/privacy-protection/625192/supreme-court-declares-right-to-privacy-a-fundamental-right

[5] Panday, J. (2017, August 28). India’s Supreme Court Upholds Right to Privacy as a Fundamental Right—and It’s About Time. Electronic Frontier Foundation. https://www.eff.org/deeplinks/2017/08/indias-supreme-court-upholds-right-privacy-fundamental-right-and-its-about-time#:~:text=The%20right%20to%20privacy%20is

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