Introduction
India is regarded as one of the greatest democratic and secular country in the world. In this land of democracy fundamental rights are the powerful weapons one can have according to the constitution of India. Similarly media enjoys the right to fundamental speech and expression under Article-19(1)(a)[1]. “Media law is a legal field that releases to legal regulation of the telecommunications industry, information technology, broadcasting, advertising, the entertainment industry, censorship, and internet and online services among others”[2].
What is the Right to Privacy?
The right to privacy as defined under the Black Law Dictionary, means “right to have private space or left alone”[3]. Every person possesses a right to freedom from any unnecessary interference. It is a state of having no relationship with any other person or group or between groups and persons. Right to privacy varies from society to society and cannot be confined or limited. It may be defined as liberty granted to every individual which is free from invasion. However the word ‘Privacy’ does not have any legal definition. Privacy cannot be limited to bodily integrity, personal autonomy, informational self-determination and protection from state surveillance, dignity, confidentiality, freedom to speech and expression, move or even think, privacy is much more than these.
In this era the focus has been shifted from society to an individual. The need for privacy is for an individualistic society. Initially the law granted protection only against the body and property of an individual. After the process of civilization and the modern era when there were cases related to the intellect of a person and spiritual facets were involved. The scope of the law extended protection to these arising needs as well.
In the case of “Sharda v Dharmpal, the Supreme Court has defined privacy, as a state where a person is free from any sort of intrusion or disturbance in their private life or affairs related to their private life”[4]. The concept of the right to privacy is not only limited to individuals. But also extends to constitutional rights against the state. When privacy is related to an individual state it includes media and the general public. Where a private individual has a right to know about other citizens. Constitutional rights against the state talks about the extent to which a governmental authority can keep a track of a private citizen. Mainly through telephone tapping and surveillance.
The evolution of media has made it possible to interlink the private life of a person into the public exposing him to the risk of an invasion of a person’s space and his privacy. Earlier when there was no technological impact on a person’s life, the risk of invasion of a person’s life was relatively remote. In India newspapers have been a source of information to the public. This source of information slowly got replaced by an explosion of visual, electronic, and social media, which have facilitated an unprecedented information revolution. Technology brings down the unconnected boundaries to bond with. The right to privacy is not considered as an absolute right by the Supreme Court of India[5].
Biographical Works and its impact on the right to privacy
The biography of a person is usually written by another person. Prior consent of the person must be taken before writing. Lack of consent will lead to violation of the right to life and liberty, right of publicity, it will cause defamation against a person, and there are also chances that it might be a false story just to humiliate a person or create a false right. It also involves a large number of public interest.
In the case of Kaleidoscope India Pvt. Ltd. v Phoolan Devi[6], she was known as a dreaded dacoit which was the result of what happened in her life. A biographical movie was released on her name ‘Bandit Queen’. It was a great controversial movie. The trial court was of the view that it was a prima facie case of infringement of the right to privacy of Phoolan Devi, even though she had consented for the copyright of the film, and the high court upheld the judgment. In this case the court concluded that, Phoolan Devi was a public figure once she was released from prison as she became a politician. And then her life became a subject of public interest. Hence such a movie that talks about her private life including alleged murders committed by her and being a rape victim is an infringement of her right to life and privacy under article 21 of the Indian Constitution and such stories shall not be exposed to media[7].
Protection of identity of rape victims from getting publicized
Gender equality is an important aspect of the right to privacy under article 21. In the case of Anuj Garg v Hotel Assn.[8] of India, there was a provision under the Punjab Excise Act, 1914, that women are prohibited from being employed as a bartender. The Supreme Court struck down this provision as it was an infringement of the right to privacy and violation of the right to choose one’s profession as guaranteed under Article 35(1) of the Indian Constitution.
Any form of a sexual offense such as rape, sexual assault, etc, is a direct infringement of the right to privacy and dignity of a woman, it was held in the case of State of Punjab v Gurmit Singh[9]. The judiciary is always laid down guidelines to protect the name and dignity as well as the privacy of every women victim of sexual violence cases. In another case State of Punjab v Ramdev Singh[10], the Supreme Court made it mandatory that there shall be no disclosure regarding the identity of a rape victim. Printing or publishing information regarding such a victim is a punishable offense under the provisions of IPC, sections 376, 376-A, 376-B, 376-D of IPC.
The Supreme Court is also of the opinion that the name of a rape victim shall not be published even in the judgments given by the court of law as it is a violation of the right to privacy. A mere contention of the ‘loose moral character’ of a person is not a justifiable argument for publishing about the victim. Even a “women of easy virtue” is subject to the protection of dignity and privacy under the constitution, which was held in the case of State of Maharashtra v Madhukar Narayan Mardikar[11]. The PIL filed in the case of the Delhi Commission for Women v Delhi Police, the concern raised was regarding media coverage of children involved in rape and other sexual offenses as well as drug abuse. Supreme Court has laid down guidelines relating to media coverage and publication of such children[12].
It does not matter whether a victim of a sexual offense is a make or a female. The media has got no right to publicize the information of such a victim. With the modernization of technology it becomes easier for a person to collect information about anyone. But publication of information regarding a victim of a sexual offense is a direct violation of right to privacy and such right shall be protected by the law. The state must protect the privacy of a person. However, it is quite difficult to trust the technology in the 21st century. It becomes mandatory for every innocent citizen to submit their details to the state. Hence the state must protect the innocent citizen’s right to privacy.
Media Trial and Media Victimization
Media trial in short can be defined as adjudication by the media even before the court has passed its final verdict. Such an adjudication is only for the sake of increasing the TRP of the news channels and newspapers. It has become a medium of fake encounters and cooked stories.
In “M.P. Lohia v State of West Bengal, the Supreme Court strictly prohibited the media for publishing one-sided articles and interfering in the decision-making process of the judiciary in the pending cases”[13]. It can be affirmed from this case that media is the reason for biasing the thoughts of the general public which is a violation of the right to privacy of the judicial process.
“The Apex court has observed that the freedom of speech and expression granted to the media shall be carefully used. It is necessary to avoid interference of the media in the rights and privacy of every accused. The media shall not hamper the procedure of investigation and right of defense granted to the accused by the procedural law. The Court in the present case has made it very clear that the media shall not act as an agency of the court. Every accused is presumed to be innocent until proven guilty and this shall not be destroyed by violating the right to privacy of an individual, which in turn will destroy travesty of justice”[14].
Media is one of the biggest platforms of decision making in especially in India. In India media is being practiced quite freely as compared to other nations in the world. Such freedom was granted by keeping in mind that this is the fourth pillar of democracy and it should always stand tall and strong. It was considered as a watchdog in safeguarding the fundamental rights guaranteed under the constitution. The role of media is not limited to collect news and publish it rather it is more concerned with public opinion and public advocacy. However, the status of the media has been changed. It is remarked as “circus” due to its half-baked truth and manifested stories it has not only lost its reputation but it is resulting in violation of the rights of individuals.
Impact of Surveillance on Right to Privacy
“Surveillance is a process where the act of the people is monitored without their knowledge”[15]. This method usually opts to keep a track of the criminal activities if any occurs. It is typically meant for management and security purposes. This is technological development which is used for the security purpose of the public and determining their safety. The surveillance method is mostly used in developing countries to determine the activities in public places. Surveillance can be either in electronic form or non-electronic form. Electronic surveillance involves, cameras, tapping telephonic conversations, taking photographs and videos, etc. whereas the non-electronic form of surveillance includes, hiring humans to keep track of the activities done by others. With the increasing advancement of technology electronic surveillance is cheaper as compared to non-electronic surveillance which involves human resources.
In the case of “Kharak Singh v The State of UP, the issue raised before the court of law was that, whether or not surveillance which comes under Chapter XX of the U.P. Police Regulations infringes any of the fundamental rights guaranteed under part III of the Constitution”[16]. Clause 236(b) of the act, which granted to conduct surveillance during the night time in a domiciled area, was held to be against the provisions of Article 21 of the Indian Constitution[17]. Right to life and personal liberty under the purview of Article 21 was considered broadly, it was held that the expression ‘right to life and liberty’ also includes the right to dignity. Hence it was held by the seven-judge bench that, any sort of unauthorized interference into a man’s private space thereby causing him disturbances, is a violation of his right to liberty.
Conclusion
Media is a mode of communication between the public about the happenings in the country. But there are various circumstances where media has infringed the rights of privacy of individuals by publishing fake reports and cooked stories. Surveillance is a method of keeping track of the activities of the people, which can be said to be a violation of the right to privacy. However, surveillance is necessary when there is an investigation being conducted, and the person under surveillance is directly associated with the crime.
Similarly telephone tapping is another way of keeping track of the conversation of individuals, which is also a violation of article 21. But it becomes necessary during a crime investigation to catch hold of the criminal. Taking photographs and publishing without consent can also be considered as an infringement. It may also amount to stalking and voyeurism and is a punishable offense under the Indian Penal Code, 1860. But it becomes necessary when such a photograph is taken to identify a criminal.
Considering the recent cases of rape that have happened in India, the Hyderabad rape case, where a girl was traveling alone on her way home and was brutally raped and murdered. Within a few hours the supposed to be accused were killed. And the social media websites started flooding with posts and tweets that, “justice has been granted”. But has justice been granted remains a question of fact? Social media websites cannot be considered as a platform for making decisions.
Courts are burdened with cases every single day, but that does not give a chance to the citizens to post their decisions through social media websites. Social media is starting to become a threat to the judiciary system as well as rights guaranteed under the fundamental canon. Freedom of speech and expression and right to privacy shall not be intertwined. Media trial is becoming a threat not only to the judiciary but also to the citizens of the country.
Technological advancement has made it possible to keep track of everything and publish anything anywhere. Hence the right to privacy has to be safeguarded in a very stricter sense. In today’s era media has become a platform of biasing views and opinions. News channels are taking advantage of the technologies to increase their TRPs and earn money. Newspapers and news channels most of the time carry fake news and less researched facts which might not be true. Protection of privacy shall be not be done for the existing civilization but also for those who are dead. The medical details, bank details, family details, or identity of a person shall not be leaked unless and until the investigation must carry out.
Media is becoming an influential platform for the judicial system. With the growing rate of technology and its advancement in media, the judicial system will soon diminish the purpose of its establishment. Citizens are exercising their freedom without being considerate about anything else. Justice has to be done through the judicial system and not through social media. If the freedom of speech and expression is practiced then, other rights under the fundamental canon shall also be prioritized. Social media is for entertainment and not granting justice. Social media is not a platform to spread legal awareness it is just a source of entertainment and it shall remain so. Hence media plays a very important role in the lives of citizens and the government must take measures to protect and safeguard its people’s privacy guaranteed under the fundamental canon of the constitution.
References:
[1] Article 19(1)(a) of the Indian Constituion- (1) All citizens shall have the right (a)to freedom of speech and expression;
[2] Media Law – HG.org, , https://www.hg.org/media.html (last visited May 5, 2020).
[3] Article 21, Indian Constituion, 1950: “No person shall be deprived of his life or personal liberty except according to a procedure established by law”.
[4] (2003) 4 SCC 49, 521, para. 71: AIR 2003 SC 3450
[5] AIR 1997 SC 568
[6] AIR 1995 Delhi 316
[7] AIR 1995 Del 316
[8] (2008) 3 SCC 1: AIR 2008 SC 663
[9] (1996) 2 SCC 384
[10] (2004) 1 SCC 421: AIR 2004 SC 1290
[11] (1991) 1 SCC 57: AIR 1991 SC 207
[12] WP (Crl) 696 of 2008 (Del)
[13] (2005) 2 SCC 686
[14] Sidhartha Vashisht @ Manu Sharma v state (NCT of Delhi) (2010) 6 SCC 1
[15] surveillance noun – Definition, pictures, pronunciation and usage notes | Oxford Advanced American Dictionary at OxfordLearnersDictionaries.com, , https://www.oxfordlearnersdictionaries.com/definition/american_english/surveillance (last visited Feb 28, 2020).
[16] 1 SCR 332
[17] Ibid 4
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