Privacy

IN Press Laws Guide | 17/09/2012

1. What is a person’s right to privacy?

Answer: A person’s right to privacy is the right to be left alone. A citizen has the right to safeguard the privacy of himself and his family. This right can extend to all aspects of an individual’s personal life (as opposed to things that the public may have an interest in knowing). It follows that a person in the public spotlight (be it as a politician or celebrity) will enjoy a degree of protection that is less than that applicable to the common man. 
 
Reasoning: Every person has the right to enjoy his life without any interference. Hence, the right to privacy has been formulated. In India, there is no explicit right to privacy under the Constitution. However, the Courts have read the right to privacy into Article 21 of the Constitution whuch gives the right to life and personal liberty. To further protect privacy, the Government of India is presently engaged in drafting a Privacy Act. Note also that n individual’s digital records are presently protected under the Information Technology Act and rules made thereunder.
 
Effect: Though there is no explicit right to privacy the Supreme Court of India has read the same into Article 21 of the Constitution of India in a number of cases. It is given the same protection as the other fundamental rights.
 
2. Who has a right to privacy? Do people in the public eye (public officials, celebrities, etc.) have a right to demand privacy?
 
Answer: Every individual has a right to privacy under Article 21 of the Constitution of India. However, the degree of right to privacy varies from person to person. A public figure, who functions under public gaze as an emissary/representative of the public cannot expect to be afforded the same degree of privacy as a private person. The press can bring the acts of these personalities to public knowledge.
 
Reasoning: Every individual has a human right to be left alone. The same has been recognised by the Indian Courts in a number of cases. However, the acts of public personalities are not afforded the same level of protection. The public has a right to know about the acts and conducts of the public officials as they work for the benefit of the public. Therefore if the acts and conduct of the public person are of public interest even if conducted in private they may be brought to public knowledge through the medium of the press. The press has however, a corresponding duty to ensure that the information about such acts and conduct of public interest of the public person is obtained through fair means. It should be properly verified and then reported accurately.
 
Effect: A public personality has to pay the price for being in the eye if the public. However, this does not mean that the media can publish any information it receives. The information has to be verifiable and accurate. The essential ingredient required for the publication is that it has to in public interest.
 
3. What sort of information is usually termed as ‘private’?
 
Answer: Any information which is not available in the public domain is termed as private. Public Domain means it is available to the public at large. Private information can be related to the family, education, marriage of the person or any other personal information.
 
The Right to Information Act, 2005 defines information as any material in any form, and information relating to any private body which can be accessed by a public authority under any other law for the time being in force. This information is public information. Any other information would be termed as private information.
 
4. How do I decide when the need for the public to possess some information trumps the right of an individual to keep it private?
 
Answer: There is no explicit law which recognises the right to privacy in India. The Indian Courts have read the right of privacy has been read into fundamental right to life and personal liberty (Article 21 of the Constitution of the India). As there is no specific law dealing with privacy, there are no guidelines for deciding when public interest outweighs private interest of the individual. The answer depends on the facts and circumstances of each case. Thus, the court has to decide which interest in more important in every case which is presented before it.
 
5. Can one person (A) object to information about ‘A’ being made public when most other people in the same situation do not?
Answer: Yes, ‘A’ can object to publication of his personal information even if other people in same situation do not. This is because the perception regarding what is private information varies from person to person. But whether the objection will be sustained or not will depend upon the facts and circumstances of the case. If information regarding the private individual is accessible by a public authority then it would be public information. Moreover, if any private information is published in the larger interest of the public then the objection would not be upheld by the concerned authorities.
 
6. What can be the consequences of a breach of privacy?
 
Answer: The right to privacy is a recognised fundamental right under Article 21 of the Constitution of India. If there is a breach of the privacy by the state then you can approach the High Court or the Supreme Court for violation of your fundamental right under Article 226 or 32 respectively. However, there can be no enforcement of fundamental rights against private actors. It may be possible however, in the facts of the case for a crime to be made out against the publisher (for breaching broad heads under penal laws for example, under the IPC – trespass, or under the Information Technology Act – hacking).
 
If there is breach of privacy by any authority other than the state then the protection of fundamental rights is not available. The remedy against private individual for breach of privacy is under the Law of Torts The action can be for violation of privacy or if the publication constitutes defamation then a suit can be filed for defamation also. The person whose privacy has been infringed can file a civil suit and can claim damages for the harm caused to him by the breach.
 
7. What are the defences for a breach of privacy?
 
Answer: The defence for breach of privacy is usually that the publication of the private information is necessary for the public interest. Moreover, if the private information is already accessible by any public authority then there is no breach of privacy.
 
8. Can a breach of privacy be defended on the grounds that the people want to know the matter that constitutes the breach?
 
Answer: No, a breach of privacy cannot be defended on the grounds that the people want to know the matter that constitutes the breach. The only situation where the breach can be defended is when the publication of information is in public interest.
 
Reasoning: The maintenance of privacy is important for every individual. Thus, if information is disclosed merely on the fact that people want to know about that issue then the right to privacy has no meaning. The only justification for breach of privacy in such a case is where the publication of information was in public interest. The interest of the public must outweigh the individual interest.
 
Effect: A journalist cannot publish information only on the demand of the public. If he does so then he can be held liable for breach of privacy by the person. The larger interest of the public has to be necessary for avoiding liability.
 
9. What are the steps I can take to prevent an inadvertent breach of privacy?
 
Answer: To prevent breach of privacy there are certain steps which the journalist can take. The journalist has to verify whether or not the information is in public domain. If not, then the publication of the private information can be done only after the person regarding whom the information has given his consent for publication of the information. Where the consent is not obtained then the publication of the private information can only be done in the case where the protection of the public interest outweighs the protection of the right to privacy.
 
10. Can the publication of same piece of information be a breach of privacy or not under different circumstances?

Answer: Yes, the publication of same piece of information can be a breach of privacy or not under different circumstances. If there is information which is published in public interest then there is no breach of privacy. But where the reason of public interest is not present or has ceased there cannot be publication of the private information. Also there can be publication of private information if the same is permitted by any law time being in force. But if that law is repealed then the permission to publish the private information will cease. If the journalist publishes any private information after the law has been repealed then there is breach of privacy of a person.

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