Consentia on International Law and Constitutional Law

Right to Privacy and Freedom of Press

 Freedom of Press – International Perspectives

Press had to struggle through centuries to have the freedom as of today. The fight began somewhere in the 1600’s. It had to overcome opposition from monarchs, parliament and even from the Courts. In England, there were constraints such as licensing of books and papers, harsh penalties for illegal or offending publications, seizure of press and jail for criminal libel. In 1644 John Milton spoke against licensing,[1] in 1689 the English Bill of Rights restrained the monarchy,[2] while later ,John Locke’s contribution concerning tolerance and free speech as a natural right was highlighted[3]. All these culminated in forming the licensing law of 1694. This gave rise to new papers coming into the scene[4].

Reformers grew bold in the 1700’s, such was in the form of Cata’s letters (1720 -23) and letters of Junius (1769 -72) in England, the latter criticizing George III’s regime on behalf of the people of England. It was during thisperiod John Wikes, M.P. and Editor of the North Britain Newspaper (1763) was acquitted of libel charge. [5]

Though reporting on Parliament was allowed in 1771 and constitutional guarantee was given to the press in the US under the First Amendment and in France under the Declaration of the rights of Man and Citizen in 1789. Still the libel threat was used in England to regulate press as a powerful charge because truth was not recognized as a defense. [6]

Threat of libel got weakened when Fox’s libel law was passed in 1792, which increased the power of juries who were inclined to support the editors. Edmund Burke who was a theorist of the English Constitution, towards the end of the 18th century, rose in the Parliament to talk about a new player in democracy, the printing press or the Fourth Estate as it is termed today.[7] Free press of today emerged in the 19th century across Europe and US.

The 20th century saw the inclusion of this press freedom in International treaties and Conventions[8] such as Universal Declaration of Human Rights 1948[9], International Covenant on Civil and Political Rights 1966[10]  and also European Convention on Human Rights 1950[11]. Then came the regional conventions such as American Convention on Human Rights 1969, which defined the press freedom in Article 13[12]. This Article states that its exercise shall not be subject to prior censorship but shall be subject to subsequent imposition of liability which shall be expressly established by law to the extent necessary to ensure respect for the rights and reputation of others, protection of national security, public order or public health or morals.[13]Article 14 recognizes the right to reply by media, to those harmed by their communications.

Freedom of press is perhaps the most projected right in the US and protected with great zeal and commitment. The First Amendment to the American Constitution provides that the ‘Congress shall make no law abridging the freedom of speech or the press’[14]. This means that any law can be challenged on the sole ground that it violates the freedom of the speech and expression and the law made in violation of this Amendment will be struck down as invalid. However this right is not absolute, other interests can overcome it, such as the reputation of others, privacy and protecting the interest of parties in a fair trial. In fact, this freedom of expression comes in conflict with many other interests and therefore restraint on it is a must. The UN declaration of 1948 in Article 10 brings in restrictions in cases of fair trial [15]and Article 12[16] puts restrictions on the ground of privacy. Most of the Bill of Rights such as Article 10[17]of the European Convention 1950 lists out some interests as exceptions to the right of freedom of expression.[18] The aspects are highlighted as there is the need to develop other interests as well for the social development.

In the UK, which has a greater history of law making compared to the US, had no Bill of Rights protecting the freedom of expression. It was only with the inception of the Human Rights Act 1998, that the right to freedom of expression was given a legislative recognition in UK[19].

Historically, in English law, there was no such thing as ‘media freedom’ as a legal concept. More typically, under the traditional English view, freedom of the press was simply the absence of a prior system of censorship. In Britain, the law of media freedom merely consisted of application of law from common law decisions. Since the enactment of Human Right Act, 1998, the position of media has changed in UK as now the freedom of expression is an express right under a statute.

May 3, is a date on which the world community celebrates the fundamental principles of press freedom, to evaluate press freedom around the world, to defend the media from attacks on their independence and to pay tribute to journalists who have lost their lives in the exercise of their profession. It was proclaimed as the world press freedom day. The UN General Assembly in 1993, following a recommendation adopted at the 26 th session of the UNESCO’s General Conference in 1991 made the above proclamation.[20]  Shriram Venekar of the The Times of India and Sebastian D’Souza of Mumbai Mirror have earned great praise from the Supreme Court for taking pictures of Kasab in the night of 26/11, which were used as evidence against him.[21]

 Media in India

The history of media in India dates back to Kautilya’s ‘Arthashastra[22]. The Muslim rulers brought into effect a system by appointing a ‘Waqaya Navis’ (events reporter) in every ‘Suba’ capital[23]. For the common people news was circulated by proclamations and through word of mouth. It was in the 16th century that Christian missionaries first brought the printing press to India. India’s first newspaper and the first printed weekly appeared on 29th January 1780, when James Augustus Hicky brought out the first issue of the ‘Bengal Gazette’ or ‘Calcutta General Advertiser’. It constituted of ten pages only. The paper was opposed to the East India Company. It strongly upheld the liberty of the press. The second newspaper of India was the Indian Gazette, established in November 1780. Gradually in February 1784 were published the Calcutta Gazette and Oriental Advertiser. In 1785 came the Bengal Journal and the Oriental Magazine and the Calcutta Amusement, which was the first monthly publication.[24] In 1786 came the Calcutta chronicle, in 1785 Richard Johnsten started the Madras Courier. Boyd came out with ‘Hirkaru’ in 1793. Two years later Madras Gazette appeared. The first English newspaper in Bombay was the Bombay Herald, which appeared in 1789. In 1790, Luki Ashburner began the Bombay Courier and in 1791 appeared the Bombay Gazette. After 1790, there erupted lot of news papers and 1794 saw the ‘Asiatic Mirror’, the ‘Indian World’, ‘The Calcutta Courier’ and the ‘Bengal Harkaru’ in 1795 and the ‘Telegraph’ and the ‘Oriental Star’ in 1798.

In 1789, Governor General, Wellesley came to India and y an article in the ‘Asiatic Mirror’. Therefore, he issued notorious regulations in 1790 for the control of the press in India. It contained several elements such as:-

 I.      Every printer of a Newspaper to print his name at the bottom of the paper.

II.      Every editor and proprietor of a news paper to deliver his name and place of abode to the Secretary to the government.

III.     No paper to be published on Sunday.

IV. No paper to be published at all, until it shall have been previously            inspected by the secretary to the government.[25]

The Bengal Gazette of 1816 was a landmark as for the first time a paper was brought out by an Indian. The Indian was Gangadhar Bhattacharjee, a votary of Raja Ram Mohan Roy’s liberal ideas. During the period of Lord Warren Hastings in 1818 the Department of Censor of Newspapers was abolished by him. He instead laid down certain restrictions on editors such as newspapers were not allowed to publish matters relating to:-

         1. Government of India or offensive remarks leveled against the public conduct of the members of the council, of Judges of the Supreme Court or the Lord Bishop of Calcutta.

        2. Having tendency of any intended interference with the religious opinions.

         3. Private scandals and personal attacks on individuals tending to excite discussion in society[26].

Later, Raja Ram Mohan Roy started the first Indian language newspaper in Bengali and Persian[27]. In 1920, he used the English Brahaminical magazine in Calcutta to spread his reformative ideas. Lord William Charles Metcalfe along with Macaulay played an important role in the freedom of the press. Later he introduced the Act XL of 1835 which repealed many earlier Acts imposing restrictions. Lord Canning’s Act of 1857 reintroduced licensing which applied to all kinds of publications. This gave the government discretionary power to grant and revoke licenses. This was rightly called the ‘Gagging Act’[28].

                  The Indian Penal Code came in 1860. It laid down offenses like obscenity and defamation which the writers and editors are liable to commit. Later through amendments other offences were also added.[29]

           After 1857, some of the well known English periodicals were G.A. Natesan’s ‘Indian Review’, Sachidanand Sinha’s ‘Hindustan Review’, Ramanand Chatterjee’s ‘Moder Review’ and Tej Bahadur Sapru’s ‘Twentieth Century’. The politically oriented magazines of the pre-independence era were Bal Gangadhar Tilak’s ‘Kesari’ and ‘Mahratta’, Annie Besant’s ‘Commonweal’, Abul Kalam Azad’s ‘Al-Hilal’, Mahatma Gandhi’s ‘Young India’ and ‘Harijan’, Lala Lajpat Rai’s ‘People’, Natrajan’s ‘Indian Social Reformer’ and Bal Krishnan Bhat’s ‘Hindu Pradeep’[30].

                  There were many other important journals in the vernacular languages and some of them were ‘Digdarshan’ and ‘Gnyanprakash’ in marathi, ‘Anandniketan’ and ‘Kalhi’ in Tamil, ‘Biswin Sadi’ and ‘Shama’ in Urdu, ‘Asha’ and ‘Samaj’ in Oriya, ‘Krishapatrika’ , ‘Andhra Prabha’, Andhra Patrika’ and ‘Andhra Jyoti’ in Telegu.

       Reuters sent a representative to India in 1866 to cover business developments in India. K.C. Roy, an Indian Journalist in the first decade of the 20th century decided to establish an India news agency. He along with two other British journalists founded the Associated Press of India (API). Soon Roy broke away and formed the Press News Bureau (PNB). Later Reuters in the year 1919 acquired both API and PNB. [31]

           S. Sadanand set up the Free Press of India (FPI) in the 1930’s, which later got shut down and from it emerged the United Press of India (UPI) in 1933. Reuters introduced tele-printer in 1937 which brought down the subscription rates and made news available to small newspapers also. After independence, the Indian interest of Reuters was bought over by the Indian & Eastern Newspaper society. This formed the Press Trust of India (PTI). PTI entered into an agreement in 1949 for purchase of Reuter’s news and sale of Indian news to the British Agency. Later in 1959, it made arrangements with Agence France Presse (AFP) and the United Press International (UPI). Later UPI was shut down in 1958 and PTI was the only big news agency in India.[32] The press suffered a lot under the Gagging Act. The act provided:-

1. The keepers of printing presses shall make a declaration before a magistrate.

2. The printer and the publisher shall make a declaration with a precise description of the premises where the printing of the publication is conducted.

3. The printer shall deliver free of expense to the government two copies of each issue of the newspaper[33].

           The press and registration of the Books Act was passed in1867, which was to regulate printing presses and newspapers. With independence, the Constitution of India under article 19(1)(a) gave the fundamental right of freedom of speech and expression, thus recognizing the importance of media in a democratic government.

  The apex court has been in the forefront to protect this right as can be seen through their decisions. In March 1950, the Chief Commissioner of Delhi issued an order under section 7(1) (c) of the East Punjab Public Safety Act 1949, to the ‘Organizer[34]. It was stated that this english weekly of Delhi has been publishing highly objectionable matters constituting a threat to public law. Therefore the press authorities were required to submit for scrutiny all communal matters and news and views about Pakistan to the above authority. The court held that the imposition of pre-censorship on a journal by the government is a restriction on the freedom of press and struck the order down.

  Similarly, the need to have a free press was emphasized by Justice Patanjali Sastri who observed:

 “Freedom of speech and expression of the press lay at the foundation of all democratic organizations for without free political discussions, no public education, so essential for the proper functioning of the process of popular government is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected with Madison, who was the leading spirit in the preparation of the First Amendment of the Federal Constitution , that it is  better to leave a few of its noxious branches to their luxuriant growth than by pruning them away, to injure the vigour of those yielding the proper fruits .”[35]

The court stated this and struck down the notification which banned the entry into or circulation, sale or distribution in Chennai of the newspaper “Crossroads”.[36]

            The extent of this freedom of press was further broadened and the apex court extended it beyond the geographical boundaries in Maneka Gandhi v. Union of India.[37]The court propounded that preventing anyone from going abroad to communicate his ideas or thoughts would be direct interference with the freedom of speech and expression.[38]

   Later, the apex court considered this fundamental right of freedom of press as part of the basic structure of the Constitution.[39]Though this freedom forms part of the basic structure, it is not absolute in its nature. As observed in Romesh Thapper [40]this freedom of speech and press does not confer an absolute right to speak or publish without responsibility, whatever one may choose or an unrestricted or unbridled licence that gives immunity for every possible use of language and prevents punishments for those who abuse this freedom.[41]

           In 1951, the Constitution was amended by the First amendment, and Article 19(2) was amended to give further power to the government to put reasonable restrictions on the freedom of press on the lines of security of India, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, incitement to an offence.[42]

 

            As the press freedom grew, the Press Council of India was established in 1965 to regulate the press. But on June 26, 1975 internal emergency was declared and the operation of article 19 was suspended and media’s freedom restricted. [43]The cabinet also approved a proposal to impose a precensorship to further restrain the press in 1975.[44]

 

           The movie ‘All the President‘s Men’ which depicted the Watergate scandal was banned in India.[45]Aandhi’ a Hindi movie believed to be the life story of the then Prime Minister Indira Gandhi, which was cleared in January 1975 by the Board of Film Censors went through difficult times during the emergency period. In July 1975, the exhibition of the film was suspended for two months and finally a revised version of the film was cleared on March 24, 1976.[46]

 

            With the resignation of Indira Gandhi as Prime Minister of India after the spell of emergency, media came out strongly and in a more powerful manner. The Press Council Act was subsequently enacted in 1978.[47]

   Privacy:  International perspective

  Protection of people against invasion into their privacy is not a new concept. In early times though the word privacy was not used, it was normally covered under the term defamation and breach of confidence. The law of the 12 Tables compiled about 300 hundred years after the founding of Rome prescribed that anyone who slandered another and injured his reputation will be beaten with a club. The Bible also forbids any one bearing false witness against his neighbor[48]. In ancient Britain at the time of Alfred in the 9th Century slander was charged depending on the slanderer’s social standing. The penalty was tearing out of tongue[49]. The only way to escape was paying the victim the price set for each social class. Accordingly, a prince was worth 1500 Shillings, a noble man 300, a farmer 100 and an agricultural serf between 40 and 80[50]. In English lawthe Church Court tried slander cases in connection with the conduct and morality of its members. Such a defendant was referred to as a ‘diffamatus[51], one whose reputation was bad enough to justify bringing him to trial. In cases where bad reputation was unfounded, the Church Court then dealt with the people who spread the non proven false statements about the defendant. The ones who committed slander have thus committed the crime and face punishment as in the Langston Constitution of 1222[52].

 

           If we go back to 1275, we would find protection of this legal concept. With the creation of   De Scandalis Magnatum, an Act of the English Crown, in 1275, slander of the leading men of England was made a crime. It was re-enacted in 1378[53]. The penalties for such statements were severe- the loss of the ears for spoken words and the loss of the right hand where the statements were in writing. These were intended to preserve the government and this became important in preserving the freedom of the press and public in the US. The Court of Star Chamber took jurisdiction to try these cases where criminality was involved[54]. In the 16th Century local and Church Courts in England began to try cases concerning spoken attacks on personal reputations. English legal traditions were incorporated into America and into India during the colonial times.

           Since the development of freedom of press, the right to privacy which was implicit as an inalienable right started shrinking, the forerunner  being USA,  where  the  right  to privacy  had   no  constitutional  base . Along with this even the tort protection in law started to shrink due to the constitutional status being given to press. There have been two great developments in the history of privacy law, one being derived from the article ‘The Right to Privacy’by Samuel Warren and Louis Brandies in 1890.[55]It was from this article that the idea of a tort remedy for invasions of privacy was conceived. They analyzed a number of decisions in the area of defamation, property, implied contract and copyright law and finally concluded that privacy right, which they named as the “right to be let alone” should be recognized as an independent tort.[56]

 

           The second great derivation towards the development of privacy law was when Dean William Prosser published his famous article on the subject in 1960.[57]He studied the court decisions on cases of invasion of privacy and determined that the law of privacy actually comprised of four distinct torts. These include (i) intrusion upon the plaintiff’s seclusion or solitude or into his private affairs, (ii) public disclosures of embarrassing private facts about the plaintiff, (iii) publicity which places the plaintiff in a false light in the public eye and (iv) appropriation , for the defendant ‘s advantage , of  the plaintiff’s name or likeness.[58]

  These definitions of Prosser regarding the four privacy torts were later adopted by the Restatement (second) of Torts.[59]The four torts stated are closely interrelated. Many a times, the gap is between an offence in private and an offence in public. This gap creates confusion as to whether there is privacy in public spots or only at homes. As the area of private domain keeps increasing, what is private space is yet to be determined regarding the concept of right to privacy.

            Privacy is the right of an individual to determine for himself or herself as to when, how, about what and to what extent information about them is communicated to others. This could be in the public realm as well at private places.

           Professor Ruth Gavison in her article [60] has defined privacy as   ‘a limitation of others’ access to an individual. She divided this into three components (1) secrecy[61], which relates to the information known about a person; (2) anonymity [62]which has to do with the attention paid to a person and (3) solitude[63], which relates to physical access to a person.

           Each person is aware of the gap between what he wants to be and what actually is, between what the world sees of him and what he knows to be his much more complex reality. In these situations, the person puts on a mask. And if intrusion takes place and breaks this mask, in many cases, this may result in depression in that person. This is again breach of privacy of his personality and personal behavior in private moments and in public. ‘Public privacy’ comes into discussions of privacy only because one takes the word ‘public’ and ‘private’ in its full sense. In reality, ‘public’ simply means society and its interests while ‘private’ is thought of in relation to boundaries which separate the society from an individual‘s interest. Therefore, it is important to discuss as to while a person definitely surrenders a great deal of privacy when a person moves in to the public domain. But it does not mean that he forfeits all legitimate expectations of privacy. Therefore, it becomes very important that privacy components are there in ‘public’ life also, without which a healthy public life is impossible.

           Invasion into privacy involves when one party, taking something intimate to another person without the latter‘s consent.  Equity demands that the latter’s interest should take precedence over the desires of the former party .Here none of the interests is either absolute and therefore has to be balanced in the competing social setup. Affluent people can purchase big estates with house fenced from public view but people in crowded areas have neither privacy at home or outside. To say that they have consented to public inspection especially by media would be very inappropriate.

Technology has developed to such an   extent that even a mobile phone could record and photograph. Now due to free lancing in journalism, this information can within seconds come on a local cable network. The time gap between collection of news and dissemination is very less. This reduces the time to rethink and reconsider whether to send it to public domain or not, as there is no time to censure at press offices. Along with this is the competition, as to which channel publicizes the news item first.

            Technology therefore was the second threat to privacy identified by Warren and Brandies, hundred and twenty years ago. Twenty first century has brought in a wide variety of surveillance devises ranging in different sizes and having varied functions. Once the news and photographs are released through the media to the world, then it reaches millions of people across the globe. The impact through media is great and the loss for the victim is irreparable. That is the reason why the process of dissemination of news is important when studying and evaluating the extent of harm caused to the victim regarding the element of offensiveness, when determining invasion into privacy.

            Since the United Nations embraced privacy as an integral part of human rights in 1948,[64]it was very soon followed by the International Covenant on Civil and Political Rights 1966,[65]which has given privacy international recognition. The European Convention on Human Rights also gave privacy a very important place in it.[66] The commendable aspect regarding this convention was the ability to bring the convention along with privacy constituent into state legislations.

           Though all these conventions recognized privacy but unfortunately none has defined the meaning of the term. Codification of the term privacy is not yet found though there have been attempts to define it. One definition put forward is that privacy is ‘a circle around every individual human being which no government – – – – ought to be permitted to overstep’ and that it is ‘some space in human existence thus entrenched around and sacred from authoritative intrusions’.[67] In other words, this means personal autonomy in a person’s life. This can be further divided into two realms. First is the realm dealing with a person’s decisions regarding his personal life and second is the realm wherein he has control over his information which is projected to the outside world. This second realm is where a conflict of interest is possible between the private interest of the person and the public interest of the society as a whole.

  European Court has been very attentive to the rise in violations of privacy. This is evident in their decisions, in one of which the court accepted that a lack of remedy by the UK court,[68] in respect of entry by the reporters into a private home to film that home, amounted to breach of Article 8 of the Convention, although there was no invasion of privacy. European Court has in fact brought right to privacy into reality through its Convention and the due to the pressure imposed on the member states to legislate on its lines. Now Human Rights Act 1998 has been enacted in United Kingdom, which is a copy of the European Convention 1950. This makes right to privacy part of the law of the land in UK.

 The right to privacy is accepted in the whole of Europe due to the strong control exerted by the European Union over Europe. This should be an example for the rest of the world to give this right a fundamental status in their respective countries.

           Contempt of court in relation to media is an extended version of invasion of privacy in the court. When media prejudices the court proceeding, it amounts to interference in rendering fair trial, in such cases contempt of court is a weapon in the hands of courts. Fair trial is given protection under Articles 10 and 11 of the UN Declaration of Human Rights 1948.[69]This is viewed as an exception to Article 17 of the convention, dealing with press freedom. In seeking to avoid such interferences with the course of justice, while at the same time giving due protection to press, it has chosen to adopt either a protective or a neutralizing model or a mixture of both.[70]

           Under the protective model, the state seeks to protect court proceedings by preventing the media from publishing potentially prejudicial material. This model is used in the UK. In UK they have the Contempt of Court Act 1981 to initiate action against the media. In the neutralizing model, the emphasis is placed on dealing with the procedures in the courts, aimed at ensuring the impartiality of the jury. These involve the use of issuing strong directions to the jury, changing the trial venue, stays etc. If neutralizing measures fail, the remedial measure of acquittal is resorted to by the courts.

           In the US the First Amendment provides immense and unqualified freedom to the press, the US courts resort to the neutralizing model rather than issuing sanctions against the press. In Nebraska Press Association[71], the Supreme Court held that adverse publicity before a trial would not necessarily have a prejudicial effect on it and that therefore a prior restraint would not be granted. The position is different in both the countries, which gives us the choice to adopt the best method, protecting the press as well as to maintain the sanctity of the courts.

  The International regulations on media finally concluded at Madrid, the Madrid Principles on the relationship between the media and judicial independence in 1994. India was a party to this convention, which evolved the ‘basic principle’ concept. This ‘basic principle’ was that in a trial the accused is innocent till proved guilty by the court[72]. Therefore while reporting the court proceedings ,clear conditions have to be followed that no matter is publicized which affects the fair trial of the accused , and no judgment should be passed other than the decision of the court.[73]  It clearly stated that the freedom of expression as stated in International convention (ICCPR) 1966, in Article 19 emphasizes the function and rights of the media. The function of the media, being to gather and convey information to the public and to comment on the administration of justice, which includes cases before, during and after trial without violating the concept of presumption of innocence.[74]So here also the commission reestablished the basic underlying concept, i.e. presumption of innocence and stated that media should keep itself distanced from violating that concept[75]. Along with this, the Judges were allowed to maintain secrecy of trial and therefore in-camera proceedings were allowed. The media were not given a right to broadcast or record Court trials unless it is so allowed by the country concerned.[76] The Commission elaborated that the strategies for implementation of these rules should be aided by judges.[77] They should assist the press by providing summaries of judgments to them and by answering their questions.[78] It concludes by stating that the balance between independence of Judiciary and freedom of the press and respect of the rights of the individual is difficult to achieve but that the process to bring this balance should continue.[79]

  Privacy in India

                                    India has in the early times followed the common law principles of Brittan, giving protection to individuals in specific areas of interests such as defamation, breach of confidence and trespass. This has long been regarded as insufficient. The first step in India giving some directions in the area of privacy was in Nihal Chand v. Bhagwan Dei[80] in which the High Court recognized the independent existence of privacy as emerging from customs and traditions of people. Gradually, the Apex Court in several decisions[81]though not in relation with the freedom of press determined the existence of this right to some degree. As stated by R.S. Sarkaria[82]:

 “While all individuals are equal, certain vulnerable categories require added protection: children, women, the aged, the mentally retarded or handicapped, the sick etc. Thus rape and molestation of women, sexual abuse of children are fit cases where privacy should be respected and the names, photographs or other particulars leading to the identity of the victims or sordid details of the offence should not be publicized to those unconcerned with law enforcement or with administrative jurisdiction in the matter, in other words sensation or a morbid curiosity cannot be a just ground for invasion of privacy at the cost of causing added hurt and trauma to the victims”.

                        The Supreme Court stated in Gobind v. State of Madhya Pradesh[83] that the right to privacy encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing. The reasoning given by the Judges is based on the concept that at home individuals drop their mask and be their real self and not act in a manner that they might represent themselves outside the home. In this safe sanctuary of a home the prying eyes of the journalists should be kept away. Even if the person is a public figure it is a basic right of the individual by birth to be let alone at least at home and in their personal affairs[84]. This gives relaxation to him and puts his head and body at rest. This restful period is needed in every individual so that he can function properly in his job or responsibility assigned to him in the public.

                       The Forty Second Law Commission examined the various aspects of right to privacy under Chapter 23 of its 42nd Report and recommended for insertion ofa new chapter to be called “offences against privacy” to substitute the existing chapter XIX making unauthorized photography and use of artificial listening or recording apparatus and publishing such information listened or recorded as offences[85]. The Law Commissionin its one hundredth and fifty sixth report stated that right to privacy is a vast subject and its scope has been widened considerably under Article 21 of the Constitution by the Supreme Court under its various decisions[86]. Various countries abroad have also dealt with the various aspects of right to privacy in separate legislations e.g. the Law Reform Commissionof Hong Kong in its Report of December 1996 entitled “Privacy, regarding the Interception of Communications”, has referred to various legislations in different countries regulating interception of communication.[87]  The Law Communication has recommended that several jurisdictions, including common law, have legislation regulating interception of communications and although the scope of protection by such legislation varies , all the statues apply criminal sanctions to safeguard the privacy interests of individuals in one way or another [88]. The Law Reform Commission of Ireland in its Consultation Paper headed ‘Privacy; Surveillance and Interception of Communications’ has recommended for the enactment of a separate Act to protect the privacy of the individual from intrusive surveillance.[89] The National Seminar on Criminal Justice in India, organised by the Law Commission on 22nd and 23rd February , New Delhi , many participants viewed that inclusion of offence against privacy in IPC , are bare and sketchy and do not meet the existing demands of society for protection of privacy of individuals.[90]

                        The Law Commission admitted that on studying the matter of privacy as extended under Article 21 of the Constitution and also in the various reports of foreign law commissions, it would recommend that these offences cannot appropriately be incorporated in the IPC. Therefore it stated that the recommendation of its 42nd Report to include ‘Offence against privacy’ is deleted and that a separate legislation should be there to comprehensively deal with such offences against privacy.[91]

                       The freedom of press and the right to privacy came seriously under consideration for the first time in R. Rajagopal v. Tamilnadu[92] in which the prison authorities attempted to prevent Nakkheeran, a Tamil Weekly, from publishing the autobiography of Auto Shankar, who had been sentenced to death. It was believed that publication may uncover the close nexus between the prisoner and several IAS and IPS officers and politicians. The contention of the respondent was that the alleged autobiography had not been written by the convict and that the convict had not authorized the publication. The Court proceeded on the assumption that the prisoner had neither written his autobiography nor had authorized the petitioner to publish the same and also that the publication would be highly defamatory of some officers and politicians. The court held that the government could not maintain a civil action for its defamation. The court also stated that right to privacy is implicit in article 21 and it is a right to be let alone. But once the matter becomes public record or the person voluntarily submits himself into controversy then it may be a different question[93]. The court granted the right to publish in so far as the information was gathered from public records. For this the court opined that no consent of the convict or authorization is necessary. The court warned that if the publishers went beyond that, then they might be invading the prisoner’s right to privacy and would be liable to that extent.

   Conclusion

  The historical perspectives elaborated in above paragraphs give the development of press and privacy in the international and domestic levels. It is clear that the international conventions give priority to privacy, being a primary inalienable individual right without which the very existence of human being is impossible. These conventions also give freedom of press an important position in regard to development of a democracy, but under restrictions, being a secondary right. Without this right a democracy fails to mature in a proper way, but for this it is important that it is properly regulated.

 The Madrid convention 1994 emphasized the need of measures, in the form of Press Councils, Ombudsman for the Press and also by having a code of ethics for the media. Though the Press Council came in 1978, it was only in 2010 that the Press Council of India finally came up with a code of ethics. Since then the PCI has been regulating the Press.

 

Author: Dr. Gifty Oommen, Faculty,

Govt. Law College, Ernakulam.Cochin Kerala

[1] Journalism Ethics for the Global Citizen, p.1-4, available at http://www.journalismethics.ca/medialaw/history  of free press htm- retrieved on 13/12/2010 at 6 pm.

[2] Ibid.

[3] Ibid.

[4]Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8]Ibid.

[9] U.D.H.R.1948,Article 19-“Everyone has a right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

[10] I.C.C.P.R.1966, Article 19-“1- Everyone shall have the right to hold opinions without interference.2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek , receive and impart information and ideas of all kinds regardless of frontiers , either orally , in writing or in print , in the form of art or through any other media of his choice.3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary. (a) for respect of the rights or reputation of others.(b) for the protection of national security or of public order, or of public health or morals.’’

[11] E.C.H.R. 1950, Article 10-“1. Everyone has the right to freedom of expression, his right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms , since it carries with it duties and responsibilities , may be subject to such formalities , conditions , restrictions , or penalties as are prescribed by law and are necessary in a democratic  society, in the interests of national security, territorial integrity or public safety , for the prevention of disorder or crime, for the protection of health or morals , for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence , or for maintaining the authority and impartiality of the judiciary.’’

[12]TheAmericanConvention on Human Rights 1969, Article 13: Everyone has a right to freedom of thought and expression. This right includes freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing, in print, in the form of art or through any other medium of one’s choice.

[13] Ibid.

[14]First Amendment  of the American Constitution in 1791- ‘ Congress shall make no law respecting an establishment of religion , or prohibiting the free exercise thereof , or abridging the freedom of speech or of the press, of the right of the people peacefully to assemble, and to petition the government for a redress of grievances.’

[15] U.N. Declaration of 1948- Article 10- “Everyone is entitled in full equality to a  fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charge against him.

[16] U.N. Declaration of 1948- Article  12-“ No-one shall be subjected to arbitrary interference with his privacy , family , home or correspondence , nor to attacks upon his honour and reputation . Everyone has the right to the protection of the law against such interference or attacks.”

[17] Supra n.8.

[18] Ibid.

[19]The Human Rights Act 1998.

[20] http://www.Unesco.org/new/en.

[21] ‘Times heroes hailed by the S.C., say they just stuck to their duty’, The Times of India, Kochi, Sept. 8, 2002, p.9.

[22] Vidisha Barua, Universal’s Press and Media Law Manual, Universal Law Publishing Company Pvt. Ltd ,( 2002). p. 26-34.

[23] Ibid.

[24] Id at p.27.

[25] Ibid .

[26]Id at p.28.

[27]First Bengali Newspaper ‘Sambad Kaumudi’, First Persian Newspaper ‘Mirat Ul-Akhbar’.

[28]Ibid.

[29] Id at p.29.

[30] Ibid.

[31] Ibid.

[32]Id at.p.30.

[33]Ibid.

[34] Brij Bhushan  v. The State of Delhi,1950 S.C.R.605.

[35] Romesh Thapper  v. State of Madras , A.I.R.1950 S.C.129.

[36] Ibid.

[37] Maneka Gandhi v. Union of India, A.I.R.1978 S.C.597.

[38]Ibid.

[39]Indian Express Newspaper v. Union of India, A.I.R. 1986 S.C.515.

[40] Romesh Thapper v. State of Madras , A.I.R.1950 S.C.124.

[41] Ibid.

[42] First Amendment of the Indian Constitution in 1950.

[43] Vidisha Barua , Universal ‘s Press & Media Law Manual, Universal Law Publishing Co.Pvt.Ltd. (2002), p.11.

[44] Id at p.12

[45] Id at p. 13.

[46] Ibid.

[47]Id at p. 31.

[48]Dwight L. Teter, Jr.Bill Loving, Law of Mass Communications – Freedom of Control of Print Broadcast Media, New York Foundation Press (2001),  U.S. p. 161.

[49] Winston S. Churchill, ‘A History of the English Speaking Peoples, The Birth of Britain’ Bar nes and Noble,New York (1993) p.67.

[50] Id at p. 6.

[51] Theodore F.T. Plucknett, A Concise History of the Common Law , Butterworth, London, (1948), p.455.

[52]Ibid.

 [53] Norman 1. Rosenberg, Protecting the Best Men :  An Interpretive History of the Law of Libel,       (University of North Caroline Press, Chapel Hill , 1986),p.4.

[54] Id at p.9.

[55] Samuel D. Warren and  Louis  D. Brandeis, “The Right to Privacy”, 4 Harv. L.Rev.193(1890).

[56] Id at 197-213.

[57] William L.Prosser, ‘Privacy’,48 Cal .L.Rev.383(1960).

[58] Id at p.389.

[59] Restatement of the Law,( second) , Torts 1977, The American Law Institute @cyber. law.harvard. edu /privacy/privacyR2dTorts.Retrieved on 12/08/2012.

[60] Ruth Gavison,  ‘Privacy and the limits of  law’, 89 Yale  L.J.421,426 (1980).

[61] Id at p.429-32.

[62] Id at p.432-33.

[63] Id at p. 433.

[64] U.D.H.R.-Article 12-‘ 1.No one shall be subject to arbitrary or unlawful interference with his privacy , family, human or correspondence nor to lawful attacks on his honour and reputation.2. Everyone has the right to the protection of the law against such interference or attacks.’

[65] I.C.C.P.R.-Article 17-‘ No one shall be subject to arbitrary or unlawful interference with his privacy , family, human or correspondence nor to lawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.’

[66] European Convention 1950-Article 8- ‘1- Everyone has the right to respect for his private  and family life, his home and his correspondence. 2. There shall be no interference  by a public authority with the exercise of this right except such as is in accordance with law and is in interests of national security , public safety , for the prevention  of the national security, disorder and crime or for the protection of health or morals.

[67] J.S. Mill, Principles of Political Economy, Penguin, 1970, p.306.

[68] Barclay v. United Kingdom, (1999) Appl. No.35712/97.

[69] U.N. Declaration  1948- Article 10-“ Everyone is entitled in full equality to a fair and public hearing by an independent and  impartial  tribunal in the determination of his rights and  obligations and of any criminal charge  against him .”Article 11- 1.“ Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence . 2. No-one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence under national or international law , at the time when it was committed . Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.”

[70] Helen Fenwick , Civil liberties and  human rights , T.J.International , Padstow , Cornwall (2002), p. 319.

[71] Nebraska Press Association v. Stuart (1976) 427 U.S.539.

[72] The Madrid Principles on the relationship between the Media and Judicial Independence 1994, Madrid.

[73] Ibid.

[74] Ibid.

[75] Ibid.

[76] Ibid.

[77] Ibid.

[78] Ibid.

[79] Ibid.

[80]Nihal Chand v. Bhagwan  Dei A.I.R. 1935 All.1002.

[81]M.P. Sharma v. Satish Chandra 1954 S.C.R. 1077 and  Kharak Singh v. State of U.P A.I.R. 1963 S.C. 1295.

[82] Sarkaria ,“Should the Press be given Special Dispensation?” 12  P.C.I. Rev. 1, 32 (1991).

[83]Gobind v. State of Madhya Pradesh A.I.R. 1975 S.C. 1378.

[84] Ibid.

[85] Law Commission of India forty second  Report on the  Indian Penal  Code ,1971, Chapter 23, pp.336-340.

[86]Law Commission of India one hundred and fifty sixth Report on the Indian Penal Code vol.1 August, 1997, p.340.

[87] Id at p. 332.

[88] Id at p. 333.

[89] Ibid.

[90] Ibid.

[91] Id at p. 341.

[92] R. Rajagopal v. Tamil Nadu, A.I.R. 1995 S.C. 264.

[93]Id at p. 529.

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