MEDIA FREEDOM AND RIGHT TO PRIVACY

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PRIVACY???

The term "privacy" has been described as "therightful claim of the individual to determine theextent to which he wishes to share of himself withothers and his control over the time, place andcircumstances to communicate with others. Itmeans his right to withdraw or to participate ashe sees fit. It also means the individual's right tocontrol dissemination of information abouthimself; it is his own personal possession"

Privacy has also been defined as a Zero-relationship between two or more persons in thesense that there is no interaction orcommunication between them, if they so choose

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INTERNATIONAL DOCUMENTS ON RIGHT TO

PRIVACY

Universal declaration of Human Rights,1948:

Art.12

Int. Covenant on Civil and Political Rights :

Art 14

Convention on the Rights of the Child,1989:

Art.16

United Nations Convention on Migrant

Workers,1990:Art.14

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FOUNDATION OF PRIVACY RIGHT

The need for a law to protect privacy was

articulated as early as 1890 when an

article titled The Right to Privacy was

published by Warren and Brandies in

Harvard Law Review

The first higher American court to deal

with the right to privacy was a New York

appellate court in 1902 in Roberson v.

Rochester Folding Box Co ( Chief Justice

Parker)

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CONTD..

The most well-known American cases on privacyare Griswold v. Connecticut and Roe v. Wade ,JusticeDouglas held:

governmental purpose to control or prevent activitiesconstitutionally subject to State regulation may notbe achieved by means which sweep unnecessarilybroadly and thereby invade the area of protectedfreedoms

Striking down the legislation as an unconstitutionalinvasion of the right to marital privacy, it was heldthat the right of freedom of speech and the pressincludes not only the right to utter or to print but alsoto distribute, receive and read and that without thoseperipheral rights, the specific right would beendangered.

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THE RIGHT TO PRIVACY IN INDIA

The right to privacy in India has derived itself from essentially two sources: the common law of torts and the constitutional law In common law, a private action for damages for unlawful invasion of privacy is maintainable.

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 without such person's consent.

There are two exceptions to this rule: first, that the right to privacy does not survive once the publication is a matter of public record and, second, when the publication relates to the discharge of the official duties of a public servant, an action is not maintainable unless the publication is proved to be false, malicious or is in reckless disregard for truth.

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SC ON RIGHT TO PRIVACY IN INDIA

In India, the Constitution does not expressly recognize the right to privacy. The concept of privacy as a fundamental right first evolved in 1964 in the case of Kharak Singh v State of Uttar Pradesh. The Supreme Court, for the first time, recognized that there is a right of privacy implicit in the Indian Constitution under Article 21 . The Court held that the Right to Privacy is an integral part of the Right to Life, but with out any clear cut laws, it still remains in the grey area.

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CONTD..

Gobind v. State of M.P , a case ofsurveillance, the Supreme Court, whileupholding the regulation which authorizeddomiciliary visits by security personal, heldthat Depending on the character andantecedents of the person subjected tosurveillance as also the objects and thelimitation under which surveillance is made,it cannot be said surveillance by domiciliaryvisits would always be unreasonablerestriction upon the right of privacy.

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SC ON RIGHT TO PRIVACY IN INDIA

In R.Rajagopal v State of TN (1994) the

Supreme Court held that the right to

privacy is a right to be let alone. None can

publish anything concerning the above

matters without his consent, whether

truthful or otherwise and whether

laudatory or critical. If he does so, he

would be violating the right to privacy of

the person concerned and would be liable

in an action for damages.

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CONTD..

In India, the Supreme Court got a chance for firsttime to decide privacy issue in connection withSTD in 1998. Like USA, India too has laws thatprotect patient for disclosure of his/her medicalinformation. Indian Medical Council Act regulatesthe professional conduct. The council createdunder the Act has power to make regulation andcode of ethics regarding it. One of the ethics isnot to disclose the secrets of a patient toanybody without orders of courts.

In Mr. v. Hospital Z, (1998) 8 SCC 296 the SupremeCourt of India concluded that right of privacy isnot absolute.

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the European Convention on Human

Rights said that "As one of the basic

Human Rights, the right of privacy is not

treated as absolute and is subject to such

action as may be lawfully taken for the

prevention of crime or disorder or

protection of health or morals or

protections of rights and freedoms of

others"

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PEOPLE'S UNION FOR CIVIL LIBERTIES VS. THE

UNION OF INDIA AND OTHERS AIR 1997

Right to freedom of speech and expression isguaranteed under Article 19(1) (a) of theConstitution. This freedom means the right toexpress ones convictions and opinions freely byword of mouth, writing, printing, picture, or inany other manner. When a person is talking ontelephone, he is exercising his right to freedomof speech and expression. Telephone-tappingunless it comes within the grounds ofrestrictions under Article 19(2) would infractArticle 19(1)(a) of the Constitution.

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ANIRUDDHA BAHAL V. STATE ( 2010 172 DLT

269)

Delhi High Court held that “it is built-in duties

that every citizen must strive for a corruption

free society and must expose the corruption

whenever it comes to his or her knowledge

and try to remove corruption at all levels

more so at higher levels of management of

the State”. Thus, it said that conducting a

sting operation is a legitimate exercise by

any citizen.

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OBITER DICTA

The HC derived the right to conduct stingoperation to expose corruption under Article51A (b) of the Constitution of India. TheArticle provides that it is the duty of everycitizen to cherish and follow the noble idealsthat inspired the national struggle forfreedom. The Court opined that for fulfilmentof this duty there has to be corruption freeIndia and if any sting operation is carried outexposing any corruption then it is allowed.

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OBSERVATIONS

As there is no law on the Sting Operation

there is no legal protection available to the

journalist who conducts a sting operation.

The journalist can be sued later on for

defamation or any other offence.

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THE PRESS COUNCIL OF INDIA: GUIDELINES FOR

REPORTING OF A STING OPERATION

It provides that a newspaper proposing to report a stingoperation shall obtain a certificate from the person whorecorded or produced the same certifying that theoperation is genuine and bonafide.

The decision to report the sting operation should be takenby the editor after satisfying himself of the public interestof the matter and ensuring that report complies with alllegal requirements.

Great care and sensitivity should be exercised to avoidshocking or offending the reader when the sting operationis reported through a print media as well as to ensure thatthe sting operation itself is not completely outside thebounds of criminal law.

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LEGAL OR ILLEGAL ENTRAPMENT

A sting operation can constitute legal as well

as illegal entrapment. Legal entrapment is

where the offence is already in course. On

the other hand, an illegitimate trap is one

where the offence has not yet been born and

a temptation is offered to see whether an

offence would be committed, succumbing to

it, or not. (re M.S. Mohiddin AIR 1952 Madras

561.)

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CONTD..

In Aniruddha Bahal v. State ( 2010 172 DLT

269) the Delhi High Court held that it is not

necessary to inform the public authority before a

sting operation is carried out.

It is not essential to inform a public authority

before the journalist carries out a sting

operation. If the journalist informs the authorities

before the sting operation is carried out it may

defeat the very purpose of the sting operation.

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THE TIMES OF INDIA REPORTS(ONLINE

VERSION)

The Supreme Court’s dismissal of the Delhipolice’s appeal to prosecute two journalists forconducting a sting operation against membersof Parliament in 2005 in the cash-for-questionsscam has wide ramifications.

In its judgment, a bench headed by JusticeAftab Alam quashed the special leave petitionfiled by the police against an earlier Delhi HighCourt verdict junking their charge-sheet againstjournalists Aniruddha Bahal and Suhasini Rajof Cobrapost.com.

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SAJIDBEG ASIFBEG MIRZA VS. STATE OF

GUJARAT (2007)

A Bench comprising Justices Arijit Pasayatand SH Kapadia dismissed Mirza's petitionsaying, "There is no merit in it. However, itsaid, "It goes without saying that therelevance and admissibility of the statement,if any, given by the accused before the mediapersons shall be considered at theappropriate state in the trial." Once the"shall" word is used in the direction, then thetrial court will definitely consider theadmissibility.

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SHARAD YADAV AND ORS. VS. UNION OF INDIA

(UOI) AND ANR.

Video recorded interviews of Shri Sharad

Yadav do not amount to confessions and

cannot, therefore, be used to complete the

offence, with which Shri Sharad Yadav was

charged. Eliminating the aforesaid interviews

of Shri Sharad Yadav, there remains nothing

on record to connect him with the alleged

crime.

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MOHD. AFZAL VS. STATE OR THE PALIAMENT

ATTACK CASE

The talk which Afzal had with the TV and

press reporters admittedly in the immediate

presence of the police and while he was in

police custody, should not be relied upon

irrespective of the fact whether the statement

was made to a police officer within the

meaning of Section 162 CrPC or not.

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CONTD…

SC judgment in the Parliament attack case, whichnarrated that Ram Jethmalani, appearing for SARGeelani, had cited a TV interview given byMohammed Afzal to a TV channel purportedlyconfessing to his guilt but absolving Geelani.

The apex court, in the Parliament attack case, hadrejected the admissibility of Afzal's statement to theTV channel as it became apparent that the interviewwas arranged by the police and recorded in theirpresence.

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ANALYSIS

Television interviews are admissible as evidence in the court, but we willhave to see how evidence has been defined in the Indian Evidence Act(hereinafter referred to as the act) in section 3 says:

Evidence-"Evidence" means and includes--(1) All statements, which the Court permits or requires to be made beforesuch statements are called oral evidence;(2) [All documents including electronic records produced for the inspectionof the Court]; such documents are called documentary evidence.

Now the question before us is whether the evidence in the form of aninterview is oral evidence or a documentary evidence. Can the statementgiven in the interview be kept in the category of oral evidence and beadmitted as an evidence. If it is so then are the interviews given with thepermission of the courts. And if it is only documentary evidence then suchevidence has been accepted earlier also so there is nothing new. Above allelectronic records are now accepted as documentary evidence byamendment to the Evidence Act. So it can be taken that we are referring tothe Oral evidence in the form of interviews given to the Television Channels.

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Now even if such interviews are admitted as oral evidence what will be the relevance of such interviews? The Act defines relevant as

"Relevant" -One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.

The chapter on relevance of facts lays the circumstances in which a fact can be relevant. Under this chapter what is said in an interview can be relevant only under section 8 of the Act, which talks about the previous and subsequent conduct as an interview can only be a conduct previous, the section provides that,

Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to a fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Explanation 1. the word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements, but this explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation 2. when the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.

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