Privacy, the shield that protects or the sword that strikes freedom of speech? Summary by Harsh Jain

[As part of our New Scholarship section, we have been inviting discussants to respond to the public law-themed articles featured in Volume 5 the Indian Law Review. You can access all the posts in this discussion here. In this post, our analyst, Harsh Jain introduces the arguments made by Vishal Rakhecha in his paper titled, Privacy, the shield that protects or the sword that strikes freedom of speech? The article can be accessed here.]

Introduction

Privacy and the freedom of speech are complementary to each other. The importance of privacy as a shield to protect the freedom of speech is extensively recognized and has gained prominence in light of events such as the Snowden Revelation, Cambridge Analytica and Aadhar. On the other hand, however, inadequate attention has been paid to instances where privacy has been used to restrict freedom of speech. In India, following the recognition of the right to privacy as a fundamental right in Puttaswamy v. Union of India, several courts have used privacy as a justification to restrict speech without employing any balancing test. Moreover, while the Supreme Court has provided a safeguard against government violation of individuals by recognizing the fundamental right to privacy, it has not answered the questions with regard to the right’s horizontal applicability. There is a growing trend across the world to bring even private players within the ambit of the fundamental right to privacy. As a result, media houses are being subjected to expensive litigation which curbs the right to a free press.

In this context, where the right to individual privacy and the right to a free press are pitted against each other, the role of the courts in adjudicating and balancing these two rights becomes significant. In this paper, Vishal Rakhecha begins by tracing the histories of the right to freedom of press and the right to privacy. Secondly, he looks at the question of the horizontal application of the right to privacy. Third, he looks at the theoretical underpinnings of the conflict between the two rights before finally analyzing the meaning of public interest in the various contexts it has been used and proposing an appropriate balancing test.

The recognition of the freedom of press

The freedom of press has been recognized as a right within the broader right of free speech by the Supreme Court in various decisions. The legislature and courts have also developed specific restrictions on the right for certain circumstances. One such restriction is the reporting of certain pre-judicial and judicial proceedings. For instance, the media is barred from reporting on sensitive issues such as those involving the identities of rape victims. Similarly, certain provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 prohibit the press from disclosing personally identifiable information about juveniles in conflict with the law.

Another restriction on the freedom of speech is defamation, which is closely linked to the violation of a person’s privacy. In India, defamation is a civil as well as a criminal offense. In the case of Rajagopal v. State of Tamil Nadu, the Supreme Court applied the ‘actual malice test’ which requires the plaintiff to establish that the material was not only false but also published by the defendant with reckless disregard for the truth. Moreover, the Supreme Court has upheld the constitutionality of criminal defamation in Subramaniam Swamy v. Union of India though the same is internationally recognized as a disproportionate restriction on free speech.

Development of the right to privacy

The modern conception of the right to privacy can be traced back to Samuel Warren and Louis Brandeis’ argument in 1890 to make a novel right to protect an individual’s “right to be left alone.” The new right would be relevant to protect individuals’ private affairs in which the “community has no legitimate concern.” The authors recognized, however, that private affairs of an individual may acquire public importance “if found in a candidate for public office.” Slowly, claims around privacy started growing and several states in the United States adopted a tort-based approach to privacy. While this sort of protection for breaches by the press was becoming increasingly normalized via the common-law route, it was insufficient to offer protection in surveillance issues, especially state surveillance. The inability of the common law approach to address state surveillance led to courts adopting constitutional law principles around privacy.

 

In the Indian context, while large benches of the Supreme Court had decided against recognizing privacy as a fundamental right, smaller benches started opening up gaps through which the right could be recognized in a limited form. For example, in 1995, in the Rajagopal case, the Supreme Court explicitly stated that the privacy right that is to be utilized against a private citizen is a common law right and it’s violation would invite an action for damages.

Several attempts were also made at creating a statutory right to privacy directed against news organizations. The 42nd Law Commission Report on the Indian Penal Code suggested that a “Chapter on Privacy” be added to the Code to protect individuals from the threat of artificial listening devices and unauthorized photography. In 1981, Congress leader VN Gadgil introduced a “Right to Privacy Bill” which defined privacy as the right of any person to preserve the seclusion of himself, his family or his property from any other person. The Bill was referred to the Second Press Commission, which acknowledged the need to protect the right to privacy but also expressed concern about the press becoming vulnerable to malignant litigation. It recommended that the Press Council of India deal with matters related to complaints about news organizations. More recently, the BN Srikrishna Committee Report and the Personal Data Protection Bill were major milestones in the area of informational privacy. Importantly, the Bill provided an exception for “journalistic purposes” from its safeguards.

The understanding of the right to privacy underwent a shift with the Supreme Court’s decision in Puttaswamy v. Union of India in which the Court unanimously held that the right to privacy was a constitutional right. Rakhecha identifies three aspects in the judgment related to the matter at hand:

First, the Court provided a rationale for the presence of the right to privacy. All the judges recognized that the right is an element of human dignity and the autonomy of an individual.

Second, the Court took cognizance of the violation of the right to privacy by non-state actors. Chandrachud J. discussed the potential for the violation of the citizens’ right to informational privacy by private corporations in the age of “Big Data.” Chelameswar J. stated that privacy interests in general are covered in three different forms across the world: common law, statutory recognition and constitutional protection. However, he refused to answer the specific question of the horizontal application of the right. Bobde J. held that when the interference comes from the state, it would violate the fundamental right of privacy and when the interference comes from a non-state actor, it would be violative of the common law right. Kaul J. seemed to suggest at various points that the fundamental right to privacy can be violated by a private actor but also mentions that the legislature ought to frame a law protecting people’s privacy. Therefore, with regards to horizontality, there was no consensus among the judges.

Third, the government raised the argument that the existence of the right to privacy as a common law right barred its recognition as a fundamental right. The Court said that recognizing the right to privacy as a fundamental right protects it from the uncertainties of legislative majorities and infringements from the state. All the judges agreed that the right to privacy is amorphous and its meaning would be decided on a case-to-case basis.

Post-Puttaswamy, privacy has been accorded a privileged position by High Courts in relation to freedom of speech, who have begun applying it in a worrying manner. In Kanimozhi v. Varadarajan, Ms. Kanimozhi was able to obtain injunction against the Kumudan Reporter for publishing any kind of information about her without her prior consent on the basis that her privacy would be violated since the right to reputation is a part of the right to privacy. According to the Court, Puttaswamy had elevated the status of the right to privacy as against other rights such as the right to free speech and put it in a pre-eminent position. In Swami Ramdev v. Juggernaut Publishing, the Court, while referring to Kanimozhi and Puttaswamy, held that the right to reputation would be a part of the right to privacy. In both these cases, the Court applies the right to privacy horizontally without providing any basis for the same.

Horizontal application of the right

Rakhecha undertakes an analysis of several decisions of the Supreme Court and finds that the Courts have concluded that there is no direct applicability of the fundamental right of privacy against private parties, which is in line with the established jurisprudence for applying fundamental rights only vertically. Conceptually, the reason for moving towards a horizontal application of a fundamental right is because there is an unequal bargaining power between the parties involved. While the media does have an unequal bargaining power in comparison to a common citizen, the same is not the case when it comes to politicians, godmen, etc. who have power and resources along with a vested interest in preventing critical reporting about them. Further, the recognition of the right to privacy in a horizontal manner would open the doors for other fundamental rights to be enforced horizontally. In light of the above discussion, Rakhecha concludes that the right to privacy must be adjudicated indirectly horizontally or in a completely vertical manner.

Theoretical underpinnings of a balancing act?

Conflicts arise between rights of privacy and press freedom when the media oversteps its boundaries or when the rich and powerful attempt to stifle criticism about them. In order to appreciate the sources of contest between the two rights, Rakhecha highlights the role of the press in the creation of a well-informed public. He also recognizes the value of the right to privacy in giving the individual the autonomy for making personal choices However, as Rakhecha points out, such autonomy cannot be extended to public individuals because the decisions they make have an impact on others and affect the policies they make. The media disclosing information about such individuals is necessary for the healthy functioning of a democracy. Even the Srikrishna Committee report recognizes journalists as “interpreter of events” and provides an exemption to journalists from various data protection requirements. At the same time, giving the media unrestricted powers to write about each and every aspect of any person’s personal life cannot be justified. Therefore, it becomes necessary to develop a test that balances the right to privacy and freedom of press adequately. To formulate such a test, the meaning of public interest must be clarified according to Rakhecha.

 

Meaning of public interest

The enactment of the Right to Information Act, 2005 shifted the conversation from protecting speech to information disclosures. Section 8 exempts disclosure of information that is in the “public interest.” Courts started looking at this aspect for considering the release of information. The expression “public interest” does not have a fixed meaning and courts have held that it takes the color of the statute or context that it arises in. With respect to this aspect, the Court held in Aditya v. Bandhopadhyay that the correct approach is to ensure balancing transparency and accountability while ensuring that other public interests are not harmed. The position that the court has taken is that privacy can be protected through non-disclosure but if public interest is furthered by disclosure, public interest will prevail.

Rakhecha looks at the definition of public interest given by the Second Press Commission and the Srikrishna Committee to argue that the disclosure of personal information about public officials and public figures is often in public interest. The kind of information that is in public interest from the perspective of a public figure is usually the information that is directly related to the aspect that they are the most well-known for be it sports, acting, etc. However, since they are considered role models for society, other aspects of their life such as their marriage and criminal cases against them can also be in public interest.

Manner of adjudication

In the last section, Rakhecha looks at a model for adjudicating the two rights and identifies four important factors that need to be looked at:

A. Contribution to a matter of general interest: Any publication that is made must contribute to the debate of general public interest. There is no exhaustive list of matters that are in public interest and a determination would have to be made on a case-to-case basis. Information related to the conduct of a public official’s duty, for instance, in public interest.

B. Profile of the individual whose information is being published: Matters that are related to the performance of duties by an official would be relevant. With regards to public figures, information with regards to their professional skills would be in public interest. Information related to matters such as their marital problems, sexual relations, etc. would not be relevant except in specific circumstances.

C. Content, form and communication: The manner in which information is portrayed, including choice, should also be considered. While choices should not be judged harshly lest it has a chilling effect on speech, the media also has a duty to present stories involving intimate details sensitively. Factors such as how much information is published, whether generic photos would suffice or photos of a specific situation is necessary, caption attached with the photo, etc. are relevant.

D. Manner of obtaining information: Details about how the published information was obtained are information. This includes whether the information was obtained with the person’s consent or not. The person’s consent needs to be balanced with the fact that in situations where the release of the information would be disadvantageous to the person, she is unlikely to provide such information. In such a situation, the person should be given adequate time to reply or clarify their position with regards to such information.

 

Conclusion

The discussion around privacy and free speech has always had a complicated relationship with each other. The courts had been able to maintain an uneasy balance between these claims for a long time, till a juggernaut in the form Puttaswamy upended it. There is a need for Courts to establish a nuanced test to balance these two rights.

 

The author is an associate at Saraf & Partners and works in the areas of regulation, policy and private equity.

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