BY- Adv.Md. Zeeshan Chand
Email- zeeshanlawbhu@gmail.com
Chapter –I
The
law of privacy is recognition of the individual's right to be let alone and to
have his personal space inviolate. The need for privacy and its recognition as
a right is a modern phenomenon. It is the product of an increasingly
individualistic society in which the focus has shifted from society to the
individual. In early times, the law afforded protection only against physical
interference with a person or his property. As civilization progressed, the
personal, intellectual and spiritual facets of the human personality gained
recognition and the scope of the law expanded to give protection to these needs.
The essence of the law derives from
a right to privacy, defined broadly as "the right to be let alone." It usually excludes personal
matters or activities which may reasonably be of public interest, like those of
celebrities or participants in newsworthy events. Invasion of the right to
privacy can be the basis for a lawsuit for damages against the person or entity
violating the right.
Under the constitutional law, the right to
privacy is implicit in the fundamental right to life and liberty guaranteed by
Article 21 of the Constitution.[1]
This has been interpreted to include the right to be let alone. The
constitutional right to privacy flowing from Article 21 must, however, be read
together with the constitutional right to publish any matter of public
interest, subject to reasonable restrictions.
Right
to privacy is not enumerated as a fundamental right in the constitution.
However, such right has been culled by the Supreme Court from Art. 21 and
several other provisions of the constitution read with directive principle of
state policy.
The movement towards the
recognition of right to privacy in India started with Kharak Singh v. State of Uttar Pradesh and
Others[2] , wherein the apex
court observed that it is true that our constitution does not expressly declare
a right to privacy as fundamental right, but the said right is an essential
ingredient of personal liberty. After an elaborate appraisal of this right in Gobind v. State of Madhya Pradesh
and Another[3]
, it has been fully
incorporated under the umbrella of right to life and personal liberty by the
humanistic expansion of the Article 21 of the Constitution.
In R. Rajagopal
v. State of Tamil Nadu, the Supreme Court has asserted that in recent time’s
right to privacy has acquired constitutional status; it is implicit in right to
life and liberty guaranteed to citizens by Art. 21. It is “Right to be let alone”.
A citizen has a right to safe guard the privacy of his own, his family, marriage,
procreation, motherhood, child bearing and education among others matters.
The right to privacy in India has
derived itself from essentially two sources: the common law of torts and the
constitutional law[4] 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[5]
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.
Chapter –Ii
Meaning and Definition of
Privacy
Privacy has been derived from Latin word: privatus
meaning thereby
"separated from the rest, deprived of something, esp. office, participation
in the government", in turn privatus
has been derived from term privo "to deprive". Privacy is
the ability of an individual or group to seclude themselves or information
about themselves and thereby reveal themselves selectively. The boundaries and
content of what is considered private differ among cultures and individuals,
but share basic common themes. Privacy is sometimes related to anonymity, the wish to remain unnoticed or unidentified in the public
realm. When something is private to a person, it usually means there is
something within them that is considered inherently special or personally
sensitive.
The
concept of privacy rests on the promise that "a certain private sphere of
individual liberty will be kept largely beyond the reach of Government"[6]
and it embodies the acceptance of the "moral fact that a person belongs to
himself and not to others nor to society as a whole".
Gerety[7] defines privacy as "an
autonomy or control over the intimacies of personal identity". He
identifies three broad concepts in the legal definition of privacy-intimacy,
identity and autonomy.[8]
Bostwick[9]
relies upon a threefold classification of privacy: the privacy of repose, the
privacy of sanctuary and the privacy of intimate decision.
Solove[10] adopts a pragmatic approach and
identifies necessary and sufficient conditions for the right to privacy. He
divides privacy into six comprehensive (though not mutually exclusive) rights:
(i) the right to be let alone; (ii) limited access to the
self-the ability to shield oneself from others; (iii) secrecy-concealing
certain matters from others; (iv) control over personal information; (v)
personhood-the protection of one's personality, individuality and dignity; and
(vi) intimacy-control over or limiting access to intimate relationships.
If the Government interferes with my
right to speak to an audience in an open maidan, can it be said that my right
to privacy has been infringed? The answer is in the negative. In such cases, my
right to the freedom of speech is interfered with. However, if the Government
interferes with my right to speak to my brother in the confines of my home, can
I say that my right to privacy has been intruded upon? The answer must
necessarily be in the affirmative. The right to privacy thus emphasizes upon
the place in which the act occurs. It was this principle that prompted
Douglas, J. to enunciate the repulsive notion of invading "marital
bedrooms" for telltale signs of crime.[11]
9
However,
if I go to a bazaar and speak to my father, and the Government prevents me from
doing so, is my right to privacy infringed, in spite of the fact that the
communication was made in an open area? The answer once more is in the
affirmative. It thus appears that the right to privacy is hinged not only upon
the place, but more specifically, upon an arena which by its very nature is
secluded from access to the public. The nature of the act or the
communication must be such as is inherently personal and private. Extending
privacy protection to the spheres of marriage, procreation, contraception,
family relationships, child-rearing and education is thus justified.
An
attempt at defining privacy is of no use if the levels of abstraction do not
translate into concrete specifics. Broadly speaking, privacy law deals with
freedom of thought, control over one's body, peace and solitude in one's home,
control of information regarding oneself, freedom from surveillance,[12]
protection from unreasonable search and seizure,[13]
and protection of reputation.
Chapter –i ii
Types Of Privacy
The term "privacy" means
many things in different contexts. Different people, cultures, and nations have
a wide variety of expectations about how much privacy a person is entitled to
or what constitutes an invasion of privacy.
Physical Privacy
Physical
privacy could be defined as preventing "intrusions into one's physical
space or solitude. Physical privacy may be a matter of cultural sensitivity,
personal dignity, and/or shyness. There may also be concerns about safety, if
for example one is wary of becoming the victim of crime or stalking.[14]
Civil inattention is a process whereby individuals
are able to maintain their privacy within a crowd.
Informational Privacy
Information
or data privacy refers to the evolving relationship between technology and the
legal right to, or public expectation of privacy in the collection and sharing
of data about one's self.
Various
types of personal information are often associated with privacy concerns. For
various reasons, individuals may object to personal information such as their
religion, sexual orientation, political affiliations, or personal activities
being revealed, perhaps to avoid discrimination, personal embarrassment, or damage to their professional
reputations.
Financial privacy, in which information about a person's financial
transactions is guarded, is important for the avoidance of fraud including identity theft.
Internet privacy is the ability to determine what information one reveals or
withholds about oneself over the Internet, who has access to such information,
and for what purposes one's information may or may not be used.
Medical privacy allows a person to withhold their
medical records and other information from others, perhaps because of fears
that it might affect their insurance coverage or employment, or to avoid the
embarrassment caused by revealing medical conditions or treatments. Medical
information could also reveal other aspects of one's personal life, such as
sexual preferences or proclivity. A right to sexual
privacy enables
individuals to acquire and use
contraceptives
without family, community or legal sanctions.
Political privacy has been a concern since voting systems emerged in ancient times. The secret ballot helps to ensure that voters cannot be coerced into voting
in certain ways, since they can allocate their vote as they wish in the privacy
and security of the voting booth while maintaining the anonymity of the vote.
Organizational Privacy
Governments agencies, corporations,
groups/societies and other organizations may desire to keep their activities or
secrets from being revealed to other organizations or individuals, adopting
various security practices and controls in order to prevent this.
Organizations[15]
may seek legal protection for their secrets. For example, a government
administration may be able to invoke executive privilege or declares certain information to
be classified, or a corporation might attempt to
protect valuable proprietary information as trade secrets.
Chapter –I V
Right to Privacy
Under the constitutional law, the
right to privacy is implicit in the fundamental right to life and liberty
guaranteed by Article 21 of the Constitution[16]
This has been interpreted to include the right to be let alone. The
constitutional right to privacy flowing from Article 21 must, however, be read
together with the constitutional right to publish any matter of public
interest, subject to reasonable restrictions.
Meaning
and Definition
The law of privacy is a recognition
of the individual's right to be let alone and to have his personal space
inviolate. The need for privacy and its recognition as a right is a modern
phenomenon. It is the product of an increasingly individualistic society in
which the focus has shifted from society to the individual. In early times, the
law afforded protection only against physical interference with a person or his
property. As civilization progressed, the personal, intellectual and spiritual
facets of the human personality gained recognition and the scope of the law
expanded to give protection to these needs.
In recent years there have been only
few attempts to clearly and precisely define a "right to privacy."
Some experts assert that in fact the right to privacy "should not be
defined as a separate legal right" at all. By their reasoning, existing
laws relating to privacy in general should be sufficient[17]
Other experts, such as Dean Prosser, have attempted, but failed, to find
a "common ground" between the leading kinds of privacy cases in the
court system, at least to formulate a definition.[18]
One law school treatise from Israel, however, on the subject of "privacy
in the digital environment," suggests that the "right to privacy
should be seen as an independent right that deserves legal protection in
itself." It has therefore proposed a working definition for a "right
to privacy":
The right to privacy is our right to
keep a domain around us, which includes all those things that are part of us,
such as our body, home, thoughts, feelings, secrets and identity. The right to
privacy gives us the ability to choose which parts in this domain can be
accessed by others, and to control the extent, manner and timing of the use of
those parts we choose to disclose.
The right to privacy in India has
derived itself from essentially two sources: the common law of torts and the
constitutional law[19]
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[20]
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.
Under
the constitutional law, the right to privacy is implicit in the fundamental right
to life and liberty guaranteed by Article
21 of the Constitution[21]
This has been interpreted to include the right to be let alone. The
constitutional right to privacy flowing from Article 21 must, however, be read together with the constitutional
right to publish any matter of public interest, subject to reasonable
restrictions.
According to
recommendations of Venkata Challiah Commission:
It is proposed that a new article, namely,
article 21-B, should be inserted on the following lines:
21-B. (1) Every
person has a right to respect for his private and family life, his home and his
correspondence.
(2) Nothing
in clause (1) shall prevent the State from making any law imposing reasonable
restrictions on the exercise of the right conferred by clause (1), in the
interests of security of the State, public safety or for the prevention of
disorder or crime, or for the protection of health or morals, or for the
protection of the rights and freedoms of others.
Unfortunately
even after ten years of recommendation parliament could not dared to insert Art.
21 (B) as Right to Privacy
and other tragedy is that even Right to Privacy has not been included in Art.
19 (2) as reasonable restriction to Art.19 (1)
Chapter –V
Right to Privacy: Comparative outlook
To
better understand the theme of right to privacy and development of it. We
should take
a slight visit of
evolution of right to privacy in various other countries.
England
The American law on privacy has
evolved faster than the law in England.[22]
One of the earliest cases in England, Albert
v. Strange[23]
involved the unauthorized copying of etchings made by Queen Victoria and her
husband for their private amusement. The etchings, which represented members of
the Royal family and matters of personal interest, were entrusted to a printer
for making impressions. An employee of the printer made unauthorized copies and
sold them to the defendant who in turn proposed to exhibit them publicly.
Prince Albert succeeded in obtaining an injunction to prevent the exhibition.
The court's reasoning was based on both the enforcement of the Prince's
property rights as well as the employee's breach of confidence. This case is
widely regarded as having inspired the development of the law of privacy in the
United States.
Even as late as 1991, the law in
England was found to be inadequate in protecting privacy. In that year, the
Court of appeal decided Kaye v. Robertson.[24]
The case concerned a well-known actor who had to be hospitalized after
sustaining serious head injuries in a car accident. At a time when the actor
was in no condition to be interviewed, a reporter and a photographer from the Sunday Sport newspaper unauthorized
gained access to his hospital room, took photographs and attempted to conduct
an interview with the actor. An interlocutory injunction was sought on behalf
of the actor to prevent the paper from publishing the article which claimed
that Kaye had agreed to give an exclusive interview to the paper. There being
no right to privacy under the English law, the plaintiff could not maintain an
action for breach of privacy. In the absence of such a right, the claim was
based on other rights of action such as libel, malicious falsehood and trespass
to the person, in the hope that one or the other would help him protect his
privacy. Eventually, he was granted an injunction to restrain publication of
the malicious falsehood. The publication of the story and some less
objectionable photographs were, however, allowed on the condition that it was
not claimed that the plaintiff had given his consent. The remedy was clearly
inadequate since it failed to protect the plaintiff from preserving his
personal space and from keeping his personal circumstances away from public
glare. The court expressed its inability to protect the privacy of the
individual and blamed the failure of common law and statute to protect this
right.[25]
U.S.A
In the U.S.A., 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 Brandeis[26]
this article laid the intellectual foundations for the law on privacy.
"Recent inventions and business
method call attention to the next step which must be taken for the protection
of the person, and for securing to the individual what Judge Cooley calls 'the
right to be let alone'. Instantaneous photographs and newspaper enterprise have
invaded the sacred precincts of the home ... private devices threaten to make
good the prediction that 'what is whispered in the closet shall be proclaimed
from the house tops'.... The press is overstepping in every direction the
obvious bounds of propriety and of decency. Gossip is no longer the resource of
the idle and of the vicious, but has become a trade, which is pursued with
industry as well as effrontery.... The intensity and complexity of life
attendant upon advancing civilization, have rendered necessary some retreat
from the world, and man, under the refining influence of culture, has become
more sensitive to publicity, so that solitude and privacy have become more essential
to the individual; but modern enterprise and invention have through invasions
upon his privacy, subjected him to mental pain and distress, far greater than
could be inflicted by bodily injury. It is our purpose to consider whether the
existing law affords a principle which can properly be invoked to protect the
privacy of an individual; and, if it does, what the nature and extent of such
protection is...."
The most well-known American cases
on privacy are Griswold v. Connecticut[27]
and Roe v. Wade.
The US Supreme Court has found the
rights of marriage, procreation, contraception, family relationships,
child-rearing and education[28]
to be indefeasible fragments of the substantive right to privacy. The
fundamental choice of whether or not to beget a child forms the crux of this
cluster of constitutionally protected decisions as "decisions whether to
accomplish or to prevent conception are amongst the most private and
sensitive".[29]
The substantive right to privacy has been described as a freedom in making certain
kinds of intimate decisions.[30]
Protection has not only been extended to certain kinds of decisions but
also to certain kinds of places.[31]
The turning point came in Griswold v. Connecticut[32]
where the US Supreme Court considered the vires of a statute prohibiting
the use of contraceptives by married couples. Douglas, J. in his momentous
pronouncement, put forth the following proposition:
"Would we allow the police to
search the sacred precincts of marital bedrooms for telltale signs of the use
of contraceptives? The very idea is repulsive to the notions of privacy
surrounding the marriage relationship."[33]
In Eisenstadt v. Baird[34]
a similar provision affecting unmarried couples was rendered unconstitutional
albeit under the equal protection clause, as the evil would be identical and
the under-inclusion invidious. The Court expounded, in its equally renowned
pronouncement, upon the concept of privacy thus:
"If the right of privacy means
anything, it is the right of the individual, married or single, to be
free from unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child."[35]
In Roe v. Wade[36] the US Supreme Court considered the
constitutionality of a statute criminalising abortion. The right to privacy was
considered to be broad enough to encompass a woman's right to terminate her
pregnancy owing to the intense emotional, mental, psychological and physical
strain which it entails.[37]
In a controversial decision, a similar provision was upheld in Webster v. Reproductive Health
Services.[38]
However, the original position was reaffirmed in Planned Parenthood v. Casey[39]
where the Court elaborated the consequences of abortion:
"Abortion is a unique act. It
is an act fraught with consequences for others; for the woman who must live
with the implications of her decision; for the persons who perform and assist
in the procedure; for the spouse, family and society ... The destiny of the
woman must be shaped to a large extent on her own conception of her spiritual
imperatives and her place in society."[40]
Similarly, Ridder & Woll find that:
"When we talk about women's
rights, we can get all the rights in the world-the right to vote, the right to
go to school-and none of them means a doggone thing if we don't own the flesh
we stand in, if we can't control what happens to us, if the whole course of our
lives can be changed by somebody else that can get us pregnant by accident, or
by deceit, or by force."[41]
In Loving v. Virginia[42]
the US Supreme Court struck down a law which prevented interracial marriages.
However, the substantive right to privacy in the context of marriage suffered a
substantial setback in Bowers v. Hardwick[43]
where the US Supreme Court denied privacy protection to homosexual activity.
The decision was reversed in 2003, in Lawrence
v. Texas[44]
where Kennedy, J. found homosexuals to have the same rights as heterosexuals,
beginning, in his eloquent judgment, with:
"Liberty protects the person
from unwarranted government intrusions into a dwelling or other private places.
In our tradition the State is not omnipresent in the home. And there are other
spheres of our lives and existence, outside the home, where the State should
not be a dominant presence. Freedom extends beyond spatial bounds. Liberty
presumes an autonomy of self that includes freedom of thought, belief,
expression, and certain intimate conduct."[45]
In Skinner v. Oklahoma[46]
the US Supreme Court struck down a statute which called for the sterilization
of "habitual criminals", thus ensuring their inherent right of
procreation, while in Stanley v. Georgia[47]
the possession of obscene material in a man's house was condoned for the
reason:
"If the First Amendment means anything,
it means that a State has no business telling a man, sitting alone in his own
house, what books he may read or what films he may watch. Our whole
constitutional[48]
heritage rebels at the thought of giving Government the power to control men's
minds."[49]
India
After the delivery of landmark
judgment known as Maneka Gandhi v. Union of India,[50]
the scope of Art. 21 was enormously increased so that this Art. could include
certain rights as fundamental rights. And Right to Privacy is one of those
rights which have been evolved by The Supreme Court of India and which is
implicit in Art. 21.
An attempt at defining privacy is of
no use if the levels of abstraction do not translate into concrete specifics.
Broadly speaking, privacy law deals with freedom of thought, control over one's
body, peace and solitude in one's home, control of information regarding
oneself, freedom from surveillance,[51]
protection from unreasonable search and seizure,[52]
and protection of reputation.[53]
Indian jurisprudence has extended the ambit of privacy to the following zones
which, though not mutually exclusive, can be analysed as follows:
1. Surveillance
The first privacy case in Indian
jurisprudence was that of Kharak
Singh v. State of U.P.,[54]
where the Supreme Court considered the constitutionality of police regulations
that permitted the police to keep a close watch on would-be criminals. However,
like all unfettered power, the provision was misused. The aggrieved complained
that the police would inter alia: (i) enter his house; (ii)
knock and shout at his door; (iii) wake him up during the night; (iv)
ask him to accompany them to the station; and (v) ask him to report his
departure to the local constable. The most inhumane of all regulations under
challenge was Regulation 236 which permitted the police to render domiciliary
visits at night.
While Regulation 236 was struck down
as being unconstitutional, Ayyangar, J.
speaking for the majority, observed: (AIR para 20)
"The right of privacy is not a
guaranteed right under our Constitution and therefore the attempt to ascertain
the movements of an individual which is merely a manner in which privacy is
invaded is not an infringement of a fundamental right guaranteed by Part
III."[55]
However, Subba Rao, J. while partly concurring with the majority, stated:
(AIR para 31)
"It is true our Constitution
does not expressly declare a right to privacy as a fundamental right, but the
said right is an essential ingredient of personal liberty. ... Indeed, nothing
is more deleterious to a man's physical happiness and health than a calculated
interference with his privacy."[56]
Thereafter, in Gobind v. State of M.P.,[57]
the aggrieved complained that "his reputation had sunk low in the
estimation of his neighbours"[58]
as a result of similar activity. Mathew,
J. after reasoned deliberation, delivered a learned judgment and observed
that: (SCC paras 23-24)
"Privacy primarily concerns the
individual. It therefore relates to and overlaps with the concept of liberty.
The most serious advocate of privacy must confess that there are serious
problems of defining the essence and scope of the right. Privacy interest in
autonomy must also be placed in the context of other rights and values.
Any right to privacy must encompass
and protect the personal intimacies of the home, the family,
marriage, motherhood, procreation and child-rearing. This catalogue
approach to the question is obviously not as instructive as it does not give an
analytical picture of the distinctive characteristics of the right of privacy.
Perhaps, the only suggestion that can be offered as a unifying principle
underlying the concept has been the assertion that a claimed right must be a
fundamental right implicit in the concept of ordered liberty."[59]
However, the Court stated that the
right to privacy was subject to "restrictions on the basis of compelling
State interest".[60]
Thus, the regulations were upheld since they applied to a limited class of
citizens i.e. habitual criminals.
Similarly, in Malak Singh v. State of Punjab[61]
surveillance was held to be intrusive and an encroachment upon the right to
privacy and in Sunil Batra v. Delhi
Admn.[62]
the Supreme Court considered the question of whether two individuals, sentenced
to death, were entitled to privacy and human rights. The Court found that
though a minimum intrusion of privacy may have been inevitable, the guards were
under an obligation to ensure that human rights and privacy standards were
observed.
In People's Union for Civil Liberties v. Union of India
(hereinafter the first PUCL case)[63],
the constitutionality of "telephone-tapping" was under consideration.
While recognizing that conversations on the telephone were of an intimate and
confidential character, the Court held that tapping into conversations was
unconstitutional unless brought about by a procedure established by law. The
Court also found the concept of privacy "too broad and moralistic"
for serious judicial consideration.[64]
2. Search and seizure: The Fourth Amendment
The Fourth Amendment of the US
Constitution reads:
"The right of the people to be
secure in their person, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated and no warrants shall issue,
but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to
be seized."
The US Supreme Court had held
unreasonable searches and seizures, without the issuance of a warrant on
probable cause, to vitiate the principle of self-incrimination inherent in the
Fifth Amendment of the US Constitution.[65]
A similar argument was presented in M.P.
Sharma v. Satish Chandra[66]
with one sole difference: the petitioners did not challenge unreasonable
search and seizure, but challenged the very process of search and
seizure as derogatory to the principle of self-incrimination enshrined in
Article 20(3) of the Constitution. While striking down this proposition,[67]
the Supreme Court altogether deprecated the doctrine of the Fourth Amendment
privacy by finding that: (SCR pp. 1096-97)
"When the Constitution-makers
have thought fit not to subject such regulation to constitutional limitations
by recognition of a fundamental right to privacy, analogous to the (American)
Fourth Amendment, we have no justification to import it, into a totally
different fundamental right, by some process of strained construction. ...
Therefore, issue of a search warrant is normally the judicial function of the
Magistrate. When such judicial function is interposed between the individual
and the officer's authority for search, no circumvention thereby of the
fundamental right is to be assumed."[68]
Fifty years later, the Supreme Court
appropriately allowed fragments of the Fourth Amendment privacy to percolate
into the boundaries of constitutional protection in District Registrar and Collector v. Canara Bank[69]
where the right of privacy was explored qua search and seizure. The Andhra
Pradesh amendment of the Stamp Act, 1899 was challenged on the grounds that it
permitted "any person" to "enter upon any premises", public
or private, and "seize and impound" documents.
The Court defined the limits of
legitimate privacy intrusion and stated that legislative intrusions could be
tested using the doctrine of proportionality, administrative/executive
intrusions had to be reasonable, while judicial intrusions were permissible
upon the issuance of a judicial warrant on the premise of "sufficient
reason" and necessity.[70]
It admonishingly observed that "under the garb of the power conferred by
Section 73 the person authorised may go on a rampage searching house after
house" and "any number of documents may be inspected, may be seized
and may be removed and at the end the whole exercise may turn out to be an
exercise in futility".[71]
It was stated that: (SCC para 53)
"Unless there is some probable
or reasonable cause or reasonable basis or material before the
Collector for reaching an opinion that the documents in the possession of the
bank tend to secure any duty or to prove or to lead to the discovery of any
fraud or omission in relation to any duty, the search or taking notes or
extracts therefore, cannot be valid. The above safeguards must necessarily be
read into the provision relating to search and inspection and seizure so as to
save it from any unconstitutionality."[72]
3. Disclosure of intimate details
Privacy cannot be the right to
withhold all possible information regarding one's self from all possible
institutions at all possible times. Such a construction would render nugatory
the very concept of societal coexistence. Every day, we are required to disclose
some or the other information about ourselves, be it in a tax return (where
income is disclosed), in a university application (where marks are disclosed)
in an insurance application (where medical information is disclosed), to a
doctor (where intimate secrets are disclosed), etc. However, does the mere fact
that I have parted with my income information in a tax return permit the Income
Tax Department to disclose my income to the whole world? Or does the fact that
I have given medical information to insurance companies permit them to relay
the information to pharmaceutical companies?
The answer must necessarily be in
the negative. Privacy is therefore not merely the right to control what kind
of information is disclosed, but also the right to choose, control and limit to
whom the disclosure is made. The fact of a disclosure to an institution
does not indicate the acquiescence of its disclosure to the general public.
In addition, all individuals retain
control over that aspect of their lives which is intimate and personal by its
very nature, and over which no member of the public can have a legitimate
claim. In contrast to the information given above (an income tax return is
mandatory) this information can only be disclosed voluntarily.
In Neera Mathur v. LIC[73]
the Life Insurance Corporation of India required married female candidates to
disclose inter alia, in a form,[74]
information regarding menstrual cycles, conceptions and pregnancies and
abortions. The Supreme Court, without mentioning the right of privacy, found:
(SCC para 13)
"The particulars to be
furnished under columns (iii) to (viii) in the declaration are
indeed embarrassing if not humiliating. The modesty and self-respect may
perhaps preclude the disclosure of such personal problems like whether her
menstrual period is regular or painless, the number of conceptions taken place;
how many have gone full term, etc. The Corporation would do well to delete such
columns in the declaration."[75]
Similarly, forms regarding the
disclosure of religion, caste, community should not be made mandatory for
admission into educational institutions, government posts (except where such
disclosure is necessary for an affirmative action), etc., for these are personal
matters, the compulsory disclosure of which tends to be offensive.
However, in Sharda v. Dharmpal[76],
the Supreme Court considered the question of whether a party to a divorce
proceeding could be compelled to take a medical examination. While acknowledging
the importance of privacy and confidentiality, the Court found that the right
to privacy was not absolute and a party could be asked to take a medical
examination since in a matrimonial proceeding: (SCC para 76)
"If the respondent avoids such
medical examination on the ground that it violates his/her right to privacy or
for that matter right to personal liberty as enshrined under Article 21 of the
Constitution, then it may in most of such cases become impossible to arrive at
a conclusion."[77]
This decision demonstrates that like
all other fundamental rights, the right to privacy too is subject to reasonable
restrictions.
4. The all-pervasive "public eye"
In R. Rajagopal v. State of T.N.[78]
the Supreme Court considered the freedom of the press vis-a-vis the right to
privacy of citizens. "Auto" Shankar, convicted of six murders and
sentenced to death, had written his biography which he intended to get
published in a Tamil weekly magazine entitled Nakheeran. In 300 pages thereof, he set out the close nexus
between himself and several IAS, IPS and other officers, some of whom were his
partners in crime. The Court developed a new test, modelled on the decisions of
the US Supreme Court in New York
Times v. Sullivan[79]
and Time Inc v. Hill[80]
However, with regard to privacy, the Court observed: (SCC para 26)
"26. (1) The
right to privacy is implicit in the right to life and liberty guaranteed
to the citizens of this country by Article 21. It is a 'right to be let alone'.
A citizen has a right to safeguard the privacy of his own, his family,
marriage, procreation, motherhood, childbearing and education among
other matters. 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. The position
may, however, be different, if a person voluntarily thrusts himself into
controversy or voluntarily invites or raises a controversy."[81]
The Court thus echoed its findings
in Gobind v. State of M.P.,[82]
with a sole difference: the right to "family, marriage, procreation,
motherhood, childbearing and education among other matters"[83]
was considered exclusively to be a publishing or informational right. None can publish
anything regarding these matters. As long as information is not disclosed
regarding these matters, no harm was said to be done. However, does that then
mean that the individual has no right of independence of action regarding these
matters? Can the State interfere with the right of individuals in their
personal matters as long as no information is disclosed? Does it mean, for
example, that the State can interfere with my decision as to what higher education
I should pursue (whether I study law, medicine or business), so long as that
information is not published?
Fortunately, the Supreme Court
qualified its observations by stating that: "the principles abovementioned
are only the broad principles. They are neither exhaustive nor
all-comprehending; indeed no such enunciation is possible or advisable. As
rightly pointed out by Mathew, J. this right has to go
through a case-by-case development."[84]
Nonetheless, endeavouring to
enunciate the "broad principles" of privacy, this decision tends to
have the effect of excluding the principle of substantive privacy from the
ambit of constitutional protection.
In People's Union for Civil Liberties v. Union of India
(hereinafter the second PUCL case)[85]
the validity of the Representation of the People (Amendment) Ordinance, 2002
was under challenge. Shah, J. brought forth the decision with a poignant
question: (SCC p. 418, para 2)
"2. There was an era
when a powerful or a rich or a strong or a dacoit aged more than 60 years
married a beautiful young girl despite her resistance. Except to weep, she had
no choice of selecting her mate. To a large extent, such situation does not
prevail today. Now, young persons are selecting mates of their choice after
verifying full details thereof. Should we not have such a situation in
selecting a candidate contesting elections? In a vibrant democracy-is it not
required that a little voter should know the biodata of his/her would-be
rulers, law-makers or destiny-makers of the nation?"
The conflict between the right to
privacy of the official in the public eye and the right of the citizen to
information was said to end in favour of the citizen, thereby serving the
larger public interest.[86]
In People's Union for Civil Liberties v. Union of India[87]
(hereinafter the third PUCL case) the constitutionality of various
provisions of the Prevention of Terrorism Act, 2002, were challenged. Once
again the Court found that: (SCC para 37)
"The criminal justice system
cannot function without the cooperation of people. Rather it is the duty of
everybody to assist the State in the detection of the crime and bringing
criminals to justice. Withholding such information cannot be traced to right to
privacy, which itself is not an absolute right. Right to privacy is
subservient to that of security of State."[88]
Finally, in People's Union for Civil Liberties v. Union of India.
(hereinafter the fourth PUCL case) the appellants sought the disclosure
of information relating to safety violations in nuclear installations and power
plants. Privacy had hardly a part to play in the decision, but the Court recognized
it as one of the grounds on which the Government could withhold information.[89]
The cases that fall under this
segment have further broadened the ambit of the reasonable restrictions which
apply to the right to privacy. While the "larger public interest" and
the "security of the State" were considered to be restrictions on
privacy, the right itself was interpreted in its informational context. The
substantive interpretation of privacy is yet to make a formal appearance in
Indian legal pronouncement.
5. Marriage
Marriage is an institution the
continuance of which ensures the perpetuation of society. It has been equated
with the very concept of existence in Indian jurisprudence.[90]
The institution revolves around certain fundamental decisions concerning when
to marry,[91] whom
to marry[92]
and whether to marry at all.[93]
It facilitates (but does not enforce) the exercise of procreation, and the
questions of whether to have children at all,[94]
and how many children to have[95]
are, in themselves, fundamental choices.
Once the marriage bond is formed
certain fundamental choices and fundamental decisions are required to be made
about the new units of the family i.e. the children, when they cannot be said
to make decisions for themselves. Fundamental choices regarding children may
include the education of children i.e. which school the child should
join, which courses the child should take, etc.,[96]
the right to bring them up in their own manner, with the inculcation of
desired values, etc. Of particularly growing interest is the right to privacy
of the child, especially since the Constitution contains no "adults
only" caveat.[97]
Thus, the institution of marriage is virtually the progenitor of the notion of
substantive privacy.
The institution of marriage is based
upon mutual consent and for such consent to exist it is essential that both
spouses are fully aware of each other's medical conditions, which alone can
legitimately affect the fundamental decisions mentioned above.[98]
This condition may be referred to as "informed mutual consent". It
follows that if any medical condition is withheld from a spouse, the consent
was obtained by fraud, and the marriage, in the least, is voidable.
These fundamental decisions
associated with marriage are indefeasible elements of inviolable selfhood, and
cannot be interfered with except for the reasonable restrictions appended
below.[99]
The right to marriage is therefore a part of the fundamental right to privacy,
subject, like any other fundamental right, to reasonable restrictions.
In Mr 'X' v. Hospital 'Z’[100]
(hereinafter the first marriage case), on the donation of blood, an
individual, Mr 'X', was found to be HIV positive. This information was relayed
by the hospital to his spouse, Ms 'Y', as a result of which the marriage was
called off. The Supreme Court considered the right of privacy to be subordinated
inter alia to the protection of the health and morals of others.[101]
Without being fully aware of the medical condition of Mr 'X', Ms 'Y' would not
be able to fully exercise her fundamental decision of marriage. There was a
danger that Ms 'Y' too would contract the disease. That is not in the least to
say that individuals with diseases cannot marry, but it implies that the
marriage, like any other, must be based upon informed mutual consent. Thus, the
Supreme Court found that: (SCC para 38)
"If that person is suffering
from any communicable venereal disease or is impotent so that marriage would be
a complete failure or that his wife would seek divorce from him on that ground,
that person is under a moral, as also legal duty, to inform the woman
with whom the marriage is proposed that he was not physically healthy and that
he was suffering from a disease which was likely to be communicated to
her."[102]
However, the Supreme Court went on
to subordinate the right to marry of individuals with communicable venereal
diseases, even when such marriage was based upon informed mutual consent. It
thus stated: (SCC para 38)
"So long as the person is not
cured of the communicable venereal disease or impotency, the right to marry
cannot be enforced through a court of law and shall be treated to be a 'suspended
right'."[103]
The effect of the right to marriage
being held a "suspended right" did not mean that individuals with
communicable venereal diseases could not marry, but worse still, it meant that
if the State enacted a law preventing them from marrying, it could not be
subject to challenge under the fundamental right. It must also be noted that if
at all a fundamental right is to be suspended, the suspension must be warranted
by the Constitution and cannot be brought about by external considerations.
This decision gravely affected the right to
substantive privacy, affecting the right of individuals to make fundamental
decisions associated with marriage. The pronouncement therefore came under
review in Mr. 'X' v. Hospital
'Z'[104]
(hereinafter the second marriage case), where the Court held that the
question of whether individuals with communicable venereal diseases could marry
did not arise for consideration, and the prior observations of the Supreme
Court relating to the suspended right of marriage were struck down to that
effect.
Report of NCRWC precisely defined Right to Privacy in following words:
21-B. (1) Every
person has a right to respect for his private and family life, his home and his
correspondence.
(2) Nothing in clause (1)
shall prevent the State from making any law imposing reasonable restrictions on
the exercise of the right conferred by clause (1), in the interests of security
of the State, public safety or for the prevention of disorder or crime, or for
the protection of health or morals, or for the protection of the rights and
freedoms of others.
International Conventions
Internationally the right to privacy
has been protected in a number of conventions. For instance, the Universal Declaration of Human Rights, 1948
(UDHR) under Article 12 provides that:
"No one shall be subjected to
arbitrary interference with his privacy, family, home or correspondence, or to
attacks upon his honor and reputation. Everyone has the right to the protection
of the law against such interference or attacks."
The UDHR protects any arbitrary
interference from the State to a person’s right to privacy. Similarly, International Covenant on Civil and
Political Rights, 1976 (ICCPR) under Article
17 imposes the State to ensure that individuals are protected by law
against “arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honor and reputation.
Thus, ensuring that States enact
laws to protect individual’s right to privacy. India has ratified the above
conventions. The ratification of the Conventions mandates the State to take
steps to enact laws to protect its citizens. Although, human right activists
have periodically demanded that the State take adequate measures to protect
human rights of the vulnerable in society, the right to privacy has received
little attention.
Similarly, Article 16 of the Convention on the Rights of the Child (CRC)
provides protection to a minor from any unlawful interference to his/her right
to privacy and imposes a positive obligation on States who have ratified the
convention to enact a law protecting the same. India does have safeguards in
place to protect identity of minors, especially, juveniles and victims of
abuse. However, there are exceptions when the law on privacy does not apply
even in case of a minor.
Article 8 of the European Convention
on Human Rights reads as follows:
(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 necessary in a democratic society in the
interests of national security, public safety, for the prevention of disorder
and crime or for the protection of health or morals
The
right to privacy, therefore, is not an absolute right and does not apply
uniformly to all situations and all class of persons. For instance, privacy
with respect to a certain class of persons, like a person in public authority,
affords different protection as opposed to private individual.
Chapter –VI
Right to Privacy: RECent
trend
Right
to privacy is basically recently developed phenomenon, in fact it is still
developing. Now right to privacy is passing through a most crucial era that is
the era of information and technology. Therefore I tried my best to bring about
all that factors which affecting this cherished right.
Modern media and privacy
The development of the media in
modern times has a special relevance to the evolution of the law of privacy.
The media has made it possible to bring the private life of an individual into
the public domain, thus exposing him to the risk of an invasion of his space
and his privacy. At a time when information was not so easily accessible to the
public, the risk of such an invasion was relatively remote. In India,
newspapers were, for many years, the primary source of information to the
public. Even they had a relatively limited impact, given that the vast majority
of our population was illiterate. This has changed with a growth in public
consciousness, a rise in literacy and perhaps most importantly, an explosion of
visual and electronic media which have facilitated an unprecedented information
revolution. Advances in computer technology and telecommunications have
dramatically increased the amount of information that can be stored, retrieved,
accessed and collated almost instantaneously. An enormous amount of personal
information is held by various bodies, both public and private - the police,
the income tax department, banks, insurance agencies, credit-rating agencies,
stockbrokers, employers, doctors, lawyers, marriage bureaus, detectives,
airlines, hotels and so on. Till recently, this information was held on paper;
the sheer Vol. and a lack of centralization made it hard to collate with the
result that it was very difficult for one body or person to use this
information effectively. In the Internet age, information is so centralized and
so easily accessible that one tap on a button could throw up startling amounts
of information about an individual. This enables public authorities to keep a
closer watch over the individual.
It doesn't end with public authorities.
There are other Big Brothers watching everywhere.
·
Every
time you log on to the Internet you leave behind an electronic trail. Websites
and advertising companies are able to track users as they travel on the
Internet to assess their personal preferences, habits and lifestyles. This
information is used for direct marketing campaigns that target the individual
customer. Every time you use your credit card you leave behind a trail of where
you shopped and when, what you bought, your brand preferences, your favorite
restaurant.
·
Employee
privacy is under siege: employers routinely use software to access their
employees' email and every move of the employee.
·
Field
sales representatives have their movements tracked by the use of location-based
tracking systems in new wireless phones.
Technology blurs the traditional
boundaries between systems. Techniques such as data mining ensure that every
bit of valuable information is extracted and logged. Data matching enables
linkages to be made between the contents of previously uncorrelated databanks.
The
move towards convergence will further blur traditional distinctions between
activities, technologies and regulatory schemes. Information obtained by
private agencies is used (and misused) not only by the private sector but is
easily accessed by public authorities. Police and tax authorities the world
over are known to rely on the private sector for information about suspects and
tax evaders. Seemingly innocuous information disclosed in a specific limited
environment may be collated and used in a completely unforeseen and startling
context.7 Coinciding with this technological revolution
is the imminent enactment of a law on freedom of information. The Freedom of
Information Bill, 1992 creates rights of access to information relating to
public affairs and proceeds on a presumption in favour of openness. While the
enactment of this Bill will provide for greater transparency in public life, it
will also bring into confrontation the right of the public to know and the
right of the individual to be left alone.
Technology and privacy
The law on privacy has not kept pace
with technological development. Even today, in no country does the right to
privacy enjoy the status of a specific constitutional right. Privacy law has
evolved largely through judicial pronouncement.
As technology has advanced, the way in which privacy is
protected and violated has changed with it. In the case of some technologies,
such as the printing press or the Internet, the
increased ability to share information can lead to new ways in which privacy
can be breached.
The Internet has brought new concerns about privacy in an age
where computers can permanently store records of everything: "where every
online photo, status update, Twitter post and blog entry by and about us can be
stored forever," writes law professor and author Jeffrey Rosen.[105]
This currently has an effect on employment. Microsoft reports
that 75 percent of U.S. recruiters and human-resource professionals now do
online research about candidates, often using information provided by search
engines, social-networking sites, photo/video-sharing sites, personal web sites
and blogs, and Twitter. They also report that 70 percent of U.S. recruiters
have rejected candidates based on internet information.[106]
This has created a need by many to control various online privacy settings in
addition to controlling their online reputations, both of which have led to
legal suits against various sites and employers.[107]
The ability to do online inquiries about individuals has expanded
dramatically over the last decade. Facebook for
example, as of July 2010, was the largest social-networking site, with nearly
500 million members, or 22 percent of all Internet users, who upload over 25
billion pieces of content each month. Twitter has
more than 100 million registered users. The Library of Congress
recently announced that it will be acquiring — and permanently storing — the
entire archive of public Twitter posts since 2006, reports Rosen.[108]
According to some experts, many commonly used communication
devices may be mapping every move of their users. Senator Al Franken
has noted the seriousness of iPhones and iPads having the ability to record and store users locations in
unencrypted files,[109]
although Apple denied doing so.[110]
Andrew Grove, co-founder and former CEO of Intel
Corporation, offered his thoughts on internet privacy in an interview in
2000.[111]
Privacy is one of the biggest
problems in this new electronic age. At the heart of the Internet culture is a
force that wants to find out everything about you. And once it has found out
everything about you and two hundred million others, that's a very valuable
asset, and people will be tempted to trade and do commerce with that asset.
This wasn't the information that people were thinking of when they called this
the information age.
Right
to Information Act
The RTI Act was designed to promote
transparency in government, not to permit the invasion of the privacy of
individuals who use government hospitals or who altruistically participate in
government-funded research. The Act generally does not threaten the
confidentiality of the doctor-patient or researcher-subject relationship.
Under section 8(1) entitled
"What is not open to disclosure", the Act says that "(j)
information which relates to personal information the disclosure of which has
no relationship to any public activity or interest, or which would cause
unwarranted invasion of the privacy of the individuals should not be
disclosed." (7) In addition, the same section stipulates that "(e)
information available to a person in his fiduciary relationship"-such as
the relationship of a physician or researcher with a patient or subject-should
not be disclosed "unless a competent authority is satisfied that the
larger public interest warrants the disclosure of such information."
The Act does not grant others the right to request
information about an individual that is generated within fiduciary
relationships, even if the doctor or researcher is a government employee and
the medical or research record is housed in a government institution, unless
public interests outweigh the individual`s interest in the privacy of the
information. Thus, the degree to which the RTI Act threatens patient or subject
confidentiality depends greatly on what would count under the Act as a
"public activity or interest" and as an "unwarranted
invasion" of privacy.
Sting
Operations
Television channels have started a series of investigative
attempts with hidden cameras and other espionage devices. The advent of
miniaturized audio and video technology, specially the pinhole camera technology,
enables one to clandestinely make a video/audio recording of a conversation and
actions of individuals. Such equipment generally has four components-- the
miniaturized camera, often of a size of a 25 paisa coin or even smaller (pin
top size), a miniature video recording device, a cord to transmit the signals
and a battery cell. The use of the cord can be avoided through wireless
transmissions.
In law enforcement, a
sting operation is an operation designed to catch a person committing a crime
by means of deception. A typical sting will have a law-enforcement officer or
cooperative member of the public play a role as criminal partner or potential
victim and go along with a suspect's actions to gather evidence of the
suspect's wrongdoing. Now the moot question that arises is whether it is for
the media to act as the ‘law enforcement agency’!
The carrying out of a
sting operation may be an expression of the right to free press but it caries
with it an indomitable duty to respect the privacy of others. The individual
who is the subject of a press or television ‘item’ has his or her personality,
reputation or career dashed to the ground after the media exposure. He too has
a fundamental right to live with dignity and respect and a right to privacy
guaranteed to him under Article 21 of the Constitution.
Public Records on the Internet
Description of issue.
One of the hallmarks of our
democracy is open government. Most government agency and court records are
considered "public" records, primarily so "we the people"
can monitor our government. In the past, individuals accessed public records by
traveling to the courthouse or to the government office and using the records
there, a time-consuming and often expensive task. In recent years, however, a growing
number of government agencies and court systems have made these records
available on the Internet.
Upon first consideration, it might
be thought beneficial for government records to be easily available to the
public via the Internet. After all, our government is supposed to be accessible
to citizens.
- But what happens when the full texts of divorce records are available to anyone with an Internet connection, complete with sensitive financial data and family histories?
- What about access to an individual's criminal records of years gone by, showing a crime for which the individual has long since paid his or her debt to society, and which may have been legally expunged?
- Will an employer have a forgiving attitude toward a 30-year-old whose criminal record shows a conviction for shoplifting when the applicant was 19 years of age?
- Will an employer overlook a DUI conviction even after the individual has lived free of alcohol for many years?
- Is one's bankruptcy cause for negative value judgments by employers, relatives and neighbors?
- Should stalkers be able to locate their victims just because that person votes or drives, thereby revealing the home addresses in public records?
- Should identity thieves be able to pluck Social Security numbers, dates of birth, and mothers' maiden names from public records posted on the Internet?
Unless we are somehow transformed
into a tolerant society, our "transparent society," to borrow a term
from sci-fi writer David Brin, is going to pose significant problems for a large
number of individuals. The full texts of criminal and civil court records,
divorce decrees, bankruptcies, and more are slated to be available from
government and information broker websites. Employers are likely to use such
information to make adverse hiring decisions. Identity thieves will find their
pot of gold at the end of the rainbow simply by clicking a mouse. And neighbors
and relatives may learn more about us than we are comfortable with.
Georgetown University law professor
Jeffrey Rosen wrote The Unwanted Gaze about just such a scenario. He
explains the value of privacy protection as follows:
Privacy protects us from being
objectified and simplified and judged out of context in a world of short
attention spans, a world in which part of our identity can be mistaken for the
whole of our identity. (p.115)
There are several potential
drawbacks for posting public records online, especially the full texts of court
records.
- Fewer individuals will choose to participate in government in order to prevent information about them from being posted on the Internet.
- Many will choose not to seek justice through the court system. Justice will only be available to those with the resources and know-how to seek private judicial proceedings.
- Individuals will experience shame and embarrassment, even discrimination, when details of their personal lives are broadcast in court records available on the Internet.
- Reputations will be destroyed because of errors.
- Data from electronic public records files will be used for secondary purposes that stray far from the original public policy purposes for which they were first created, that being government accountability.
- A particularly troubling consequence of untrammeled access to electronic public records is the loss of "social forgiveness." The 30 year-old who has turned his life around might be judged harshly for his transgressions at age 19.
- Our society will see a growing number of individuals who are disenfranchised for life. Large numbers will not be able to find employment because of negative information in court files - whether true or not - from years gone by. Or they will be relegated to lower-paying jobs in the service industries.
The solution is not to ban
public records altogether from the Internet. Instead, records should be
selectively redacted, for example, by removing Social Security numbers and
financial account data. Instead of publishing the full texts of
sensitive proceedings such as divorce cases, on the Internet, just the index
information should be published. Certain categories of case files, family court
records for example, should be available at the court house and not online.
These and other solutions must be sought in order to prevent the negative
consequences of publishing public records online, but without losing sight of
the need for access to public records in order to provide oversight of our
government.
Description of issue.
As a result of the federal Financial
Services Modernization Act, banks, insurance companies, and brokerage firms are
now able to affiliate with one another under one corporate roof. This law,
known as Gramm-Leach-Bliley (GLB) after its sponsors, was implemented in 2001.
Credit card companies, banks,
insurance companies, and brokerage firms may share their respective databases
with one another -- called affiliate sharing -- but they cannot sell customer
data to third parties without providing an opt-out notice to their customers.
Looking ahead.
Unless legislation is passed at both
the federal and state levels to strengthen the Financial Services Modernization
Act, the process of affiliate sharing will enable these merged corporations to
assemble customer data files of unprecedented scope. Some financial
institutions have more than 2,000 affiliates spanning a broad array of
businesses.
While "junk" mail, e-mail,
and telemarketing solicitations are a likely result of widespread affiliate
sharing of customer data, privacy advocates are even more concerned about the
potential for harmful uses of data merging and data profiling:
- Decisions on one's credit worthiness might hinge on medical information gleaned from insurance company data.
- A scam artist might use one's profile as a risk-taking investor to pitch get-rich-quick schemes.
- Elderly individuals with cash-rich portfolios could be vulnerable to fraud artists' promises of lucrative returns on risky investments.
The GLB Act contains a provision
that enables state legislatures to pass stronger privacy provisions. Indeed,
several states have debated privacy bills that allow for an opt-in for third
party data sharing, thereby setting the default at no sharing unless the
customer says "yes." In contrast, the GLB standard is opt-out.
The California legislature passed the Financial Information Privacy Act that requires an “opt in” by customers before a financial institution can sell personal information to third parties. Customers are given the ability to “opt out” of the sharing of personal information with company affiliates.
Given the high percent of the population favoring strong privacy protection -- 80% to 90% in most polls -- state legislatures and Congress are expected to grapple with this issue for years to come. The financial services industry is likely to exert considerable pressure on Congress to pass an amendment to GLB that prohibits states from enacting stronger privacy measures.
Description of issue.
It is not an exaggeration to state
that our video rental records have had more privacy protection than our medical
records in the past. The Clinton Administration's Health and Human Services
Department (HHS) attempted to rectify this situation by developing privacy
regulations as required by the passage of HIPAA, the Health Insurance
Portability and Accountability Act.
The HIPAA regulations, effective in April 2003, made significant strides for American healthcare consumers, especially in requiring healthcare institutions to give patients notice of their information practices, and in enabling individuals to gain access to their own medical records. But some of the privacy provisions have been rolled back due to pressure from the healthcare industry, in particular the patient consent requirements. Consent is not required for information sharing involved in treatment, payment, and operations.
The HIPAA regulations, effective in April 2003, made significant strides for American healthcare consumers, especially in requiring healthcare institutions to give patients notice of their information practices, and in enabling individuals to gain access to their own medical records. But some of the privacy provisions have been rolled back due to pressure from the healthcare industry, in particular the patient consent requirements. Consent is not required for information sharing involved in treatment, payment, and operations.
During the first 5 years of HIPAA
enforcement, HHS did not assess a single civil penalty in response to well over
30,000 complaints. The agency claims to focus on voluntary compliance and
correction by covered entities.
In July 2008, for the first time
since the privacy rules went into effect in 2003, the HHS entered into a
resolution agreement with a covered entity requiring the organization to pay
$100,000.
Looking ahead.
Most individuals consider their medical
information to be among the most sensitive of any information about them. And
many are under the mistaken impression that the Hippocratic oath still holds
true today.
Whatsoever things I see or hear
concerning the life of men, in my attendance on the sick or even apart
therefrom, which ought not be noised abroad, I will keep silence thereon,
counting such things to be as sacred secrets. Hippocrates, 4th
Century B.C.
But in truth, one's medical
information is an open book in our far-flung healthcare system-from medical
providers, to insurance companies, to self-insured employers, to laboratories,
and to payment companies, medical transcriptionists, pharmacies and pharmacy
benefits systems, government regulators, and more.
It remains to be seen whether HHS
will depart from its current policy of voluntary compliance and begin to take a
more aggressive approach in enforcing the HIPAA regulations.
Genetic Privacy
Description of issue.
Genetics is the science of differences and can be used to
categorize people, stigmatize them, or subject them to social or economic
discrimination. Persons being tested aren't the only people with an interest in
the test results. Family members and potential mates, employers, insurers, the
press and the government all may desire information about a person's genetics.
Hence, genetic information raises a host of privacy issues.
The use of genetic data to discriminate in both employment
and health insurance is of growing concern to consumers, healthcare
professionals, and policymakers alike. In 2001, U.S. News & World Report
reported that the railroad company Burlington Northern secretly conducted
genetic tests on employees who had filed worker's compensation claims for
carpal tunnel syndrome. The company's intention was presumably to be able to
reject some claims because of genetic predisposition to the condition, despite
the fact that predisposition to this ailment is questionable. (Dana Hawkins,
"The dark side of genetic testing," U.S. News & World Report,
Feb. 19, 2001).
Another key issue is determining when disclosure of genetic
information should be permitted in order to protect third parties from harm.
For example, can a physician over a patient's objection reveal a positive test
result for an inherited disorder to the patient's children, on the ground that
disclosure is necessary to enable the children to protect themselves?
A number of states have enacted legislation to prohibit
health insurers from collecting or using certain types of genetic information,
but this is not a complete solution. Most of these laws cover only limited
types of genetic information and apply only in limited settings. They also do
not address the problem of employment discrimination.
On the federal level, the Genetic Information
Nondiscrimination Act of 2008 (GINA) was designed to prohibit the improper use
of genetic information for insurance and employment purposes. GINA prohibits
insurers from denying coverage to a healthy individual or charging that person
higher premiums based solely on a genetic disposition to developing a disease
in the future. The legislation also bars employers from using genetic
information when making employment decisions. Unfortunately, the legislation
does not go far enough in enabling personal control over genetic testing
results. For a more detailed analysis of GINA.
Looking ahead.
Notwithstanding the potentially valuable information that
genetic testing may provide, we must be wary of the potential threat to our
privacy. There are no simple solutions. As biotechnology and computer
technology advance, substantial privacy issues will continue to arise.
The challenge of protecting health information is compounded
by the increasing reliance upon digital data. Medical records are shifting from
largely paper-based systems to electronic health records (EHRs). Ultimately, a
person’s EHR may include all of their medical information from "cradle to
grave." In a paper-based system, privacy is mainly protected by
fragmentation and chaos. Because the system is fragmented, it can be difficult
or impossible to compile an individual’s records from multiple providers over
extended periods.
The number of genetic tests and the number of people taking
them will increase significantly in the coming years. EHRs will make it easier
to disclose genetic information widely. As the U.S. and other countries
contemplate better ways to deal with genetic information, policymakers are
seeing that protecting privacy is neither cheap nor easy. Improved security
measures can keep information from being disclosed without authorization, but
restricting the scope of authorized disclosures is equally important. It is
essential, and challenging, to decide which individuals and entities have a
right to which information and for what purposes.
Effective legislation should, at minimum, include four
elements, according to experts. First, it should address the underlying
difficulties in gaining access to health insurance and carefully balance the
rights of employers and employees. Second, legislation should limit nonmedical
uses of predictive health information, including for life insurance, disability
insurance and long-term care insurance. Third, any legislation should limit the
scope of disclosures, penalize wrongdoers and provide remedies for people
harmed by wrongful disclosures. And fourth, EHRs should be designed so that
they can limit disclosures to relevant health information. Tackling these
matters will provide an effective first step toward shaping the future of
medical privacy. (Mark A. Rothstein, "Tougher Laws Needed to Protect Your
Genetic Privacy", Scientific American, August 19, 2008
Chapter –ViI
Right to Privacy: RECent cases
Privacy-related issues have recently
cropped up in a variety of cases, ranging from biographical films to
telephone-tapping to the right of confidentiality of an HIV-infected person.
Recent cases in India
In Kaleidoscope (India)(P) Ltd. v. Phoolan
Devi[112]
the trial Judge restrained the exhibition of the controversial film Bandit
Queen both in India and abroad. The trial court reached a prima facie
view that the film infringed the right to privacy of Phoolan Devi,
notwithstanding that she had assigned her copyright in her writings to the film
producers. This was upheld by the Division Bench. The Court observed that even
assuming that Phoolan Devi was a public figure whose private life was exposed
to the media, the question was to what extent private matters relating to rape
or the alleged murders committed by her could be commercially exploited, and
not just as news items or matters of public interest.
People's Union for Civil Liberties
v. Union of India[113] involved a challenge to Section
5(2) of the Telegraph Act, 1885 which permits the interception of messages in
cases of public emergency or in the interest of public safety. The Supreme
Court held that the right to privacy, which was part of the fundamental right
to life guaranteed under Article 21, included the right to hold a telephone
conversation in the privacy of one's home or office. It was held that
telephone-tapping, a form of "technological eavesdropping" infringed
the right to privacy. Finding that the Government had failed to lay down a proper
procedure under Section 7(2)(b) of the Act to ensure procedural
safeguards against the misuse of the power under Section 5(2), the Court
prescribed stringent measures to protect the individual's privacy to the extent
possible.
Does the disclosure by a hospital of
the medical condition of an AIDS patient to his fiancé amount to a breach of
the patient's privacy? This question arose in Mr. 'X' v. Hospital 'Y'. The Supreme Court was
confronted with the task of striking a balance between two conflicting
fundamental rights: the AIDS patient's right to life which included his right
to privacy and confidentiality of his medical condition, and the right of the
lady to whom he was engaged to lead a healthy life. The Supreme Court concluded
that since the life of the fianc‚e would be endangered by her marriage and
consequent conjugal relations with the AIDS victim, she was entitled to
information regarding the medical condition of the man she was to marry. There
was, therefore, no infringement of the right to privacy.
This case may be compared with the English case, X v. Y[114],
from the late eighties. A newspaper reporter acquired information about two
doctors practising in the National Health Service despite having AIDS. The
information was acquired from hospital records and was supplied by employees of
NHS. Despite the plaintiffs having obtained an injunction against the use of
any confidential information from hospital records, the second defendants,
owners of a national newspaper published an article written by the defendant
reporter titled "Scandal of Docs with AIDS" and threatened to
disclose the identity of the doctors. While recognizing the public interest in
having a free press and informed public debate, the Court took the view that
this was outweighed by the public interest that victims of AIDS should be able
to resort to hospitals without fear of disclosure and breach of confidence by
employees of the hospital. The Court felt that a breach of confidentiality
would make patients reluctant to come forward for treatment and counselling and
this, in turn, would lead to a spread of the disease, which was contrary to
public interest. Even over ten years before the X v. Y[115]
type of case arose before the Supreme Court in India, the English Court showed
far more zealousness in protecting the privacy of AIDS victims.
Most Recent Cases
IN THE SUPREME COURT OF
INDIA
“Decided On: 04.07.2011”
Appellants: Ram Jethmalani
and Ors.
Vs.
Respondent: Union of India (UOI) and Ors.[116]
Vs.
Respondent: Union of India (UOI) and Ors.[116]
Ratio Decidendi:
“Right to privacy is an
integral part of right to life, a cherished constitutional value and it is
important that human beings be allowed domains of freedom that are free of
public scrutiny unless they act in an unlawful manner.” “Revelation of bank
account details of individuals, without establishment of prima facie grounds to
accuse them of wrong doing, would be a violation of their rights to privacy.”
“State cannot compel citizens to reveal, or itself reveal details of their bank
accounts to the public at large, either to receive benefits from the State or
to facilitate investigations, and prosecutions of such individuals, unless the
State itself has, through properly conducted investigations, within the four
corners of constitutional permissibility.”
IN THE SUPREME COURT OF
INDIA
“Decided On: 11.05.2011”
Appellants: Amar Singh
Vs.
Respondent: Union of India (UOI) and Ors.[117]
Vs.
Respondent: Union of India (UOI) and Ors.[117]
Case
Note:
Constitution - Right to privacy - Respondent No.
7 was intercepted Petitioner's conversation on phone by monitoring them and
recording them - Hence, this Petition - Whether, orders for interception was
unconstitutional - Held, affidavit filed by Petitioner in support of his
Petition, was not at all modeled either on order XIX Rule 3 of the Code of
Civil Procedure, or Order XI of the Supreme Court Rules, 1966 - Appellant had
to disclose his source of information so that other side got fair chance to
verify it - However, Appellants did not disclose any information on which
Appellants were founded - When matter had come up for contested hearing, he
withdrawn his allegations against Respondent No. 7 - Moreover, Petitioner made
statement that Anurag Singh edited and tampered some of conversations of
Petitioner - Petitioner also admitted that he relied on information from same Anurag
Singh to file detailed affidavit in support of his Petition - Therefore, it
appeared that Petitioner was shifting his stand as per his convenience - It was
no where mention that Petitioner gave statement under Section 161 of Code of
Criminal Procedure in connection with investigation arising out of FIR lodged -
Therefore, it was clear that Petition was frivolous and was speculative in
character and it was attempt by Petitioner to mislead Court - Petition
dismissed.
Ratio Decidendi:
"Court shall protect right to privacy of
individual only in accordance with constitutional privileges."
Chapter –ViIi
Right to Privacy: an analytical
outlook
As
per my opinion right to privacy in existing society is a myth. Below mentioned
controversies are enough to establish that in this techno-friendly era this
right rarely survives.
Analysis of Right to Privacy Bill, 2011
“The Government proposes to bring
out a legislation that will provide protection to individuals in case their
privacy is breached through unlawful means. For the purpose it is working on
‘Right to Privacy’ Bill. The drafting of the legislation is at a very
preliminary stage and details of the legislation are yet to be finalized.”
(Ministry of Personnel, Public Grievances & Pensions, Right to Privacy
Bill, Release ID: 74743)
Ø The
full fledge analysis of Right to Privacy bill, 2011 is being provided in the
annexure attached to this project.
Ratan Tata and Neera
Radia Controversy
Tata group chairman
Ratan Tata moved the Supreme Court seeking to restrain the broadcast and
publication of purported conversations between him and lobbyist Niira Radia who
is under investigation in the 2G spectrum allocation case.
The petition, filed
through corporate lawyer Ryan Karanjawala, said that the tapes could be used for
investigative purposes but should not be made public as it “infringed” on his
“right to privacy”.
This is possibly the
first time a high-profile industrialist has moved the Supreme Court seeking to
protect his privacy. Actress Monica Bedi had earlier moved the top court on
this ground after her purported photographs in a prison shower were published.
The court had then restrained all publications from publishing the photographs.
But in Tata’s case, the
tapes are already in public domain. At best, the court can restrain any repeat
publication of the transcripts of the tapes.
The tapes are part of
the 5,851 calls intercepted allegedly by the income tax department and the
enforcement directorate as part of investigations into the 2G scandal. Tata’s
petition may also prompt the government to take action to prevent any more
leaks. The government today ordered a probe to establish how the contents of
the tapes were leaked.
Tata has also demanded
that the court direct the government to take action against those who were
responsible for the leaks.
The purported
conversations give the impression that Tata was not too keen on having DMK
leader A. Raja as telecom minister, expressing his preference for Dayanidhi
Maran.
Tata Teleservices was
one of the contenders for 2G licence and Radia handled the company’s public
relations.
In his petition, Tata
contended that intercepts of the conversations between Radia and him violated
his right to privacy.
The Supreme Court had
earlier held that the right to privacy was part of the right to life guaranteed
by the Constitution. Tata said that the recorded conversations should have been
used for investigation alone and should not have been published.
His petition said that
he was not challenging the government’s right to investigate the 2G scam but
only the unauthorized publication of the transcripts.
The Radia tapes feature
purported conversations she had with several journalists, politicians and
industrialists, apparently trying to lobby for cabinet berths for particular
parties. The tapes have been circulating on the Web and have been published by
two magazines.
Raja has had to step
down in the aftermath of the scam. The CBI has already registered a case
against unknown companies and individuals. However, the Supreme Court has
panned the agency for dragging its feet on the probe.
Reacting to Tata’s
petition, the counsel for the Centre for Public Interest Litigation, an NGO
that has called for court monitoring of the CBI probe, said he would contest
the Tata plea.
“We are seriously
considering filing an application in the Supreme Court to ensure that there is
no injunction against these tapes and these recordings are put out in public
domain,” lawyer Prashant Bhushan said. “These are not private conversations.
These are conversations between a lobbyist and her clients... bureaucrats,
journalists and ministers. These show glimpses of all kinds of fixing and
deal-making and show how the whole ruling establishment functions. There is
enormous public interest in putting these tapes out. It is absurd for Mr Tata
to say that this is an invasion of his privacy,” he said.
Monika Bedi Controversy
The Supreme Court barred the
possible telecast or publication of Bollywood starlet Monica Bedi's
photographs, allegedly shot surreptitiously during her stay in the women's ward
of Bhopal jail.
While banning the possible telecast
of Bedi's "obscene" photographs, the bench headed by Chief Justice K
G Balakrishnan also directed the information and broadcasting ministry to
communicate the apex court order to various news channels for compliance.
The bench, which included Justice
Tarun Chatterjee and Justice R V Raveendran, banned the possible publicising of
Monica's photographs on her petition, seeking court intervention to protect her
right of privacy and right to life with dignity.
The girlfriend of extradited mobster
Abu Salem moved the apex court through her counsel K T S Tulsi under Article 32
of the constitution, invoked when the Fundamental Right of an individual is
violated.
Bedi approached the court a day
after Zee TV telecast her "objectionable and obscene" photographs,
which was released to the media by an opposition leader of Madhya Pradesh.
A Congress leader of the state had
released the photographs contending that the security arrangement inside the
Bhopal Jail was so fragile under the Bharatiya Janata Party government in the
state that one can even photographs women even in the jail's bathroom.
Without acknowledging if Monica's
photographs, allegedly shot in the jail with hidden camera were genuine or
morphed, Tulsi said that the possible telecast or publication of these
photographs would impinge upon his client's right to privacy and her
fundamental right to life which included the right to live with dignity.
In her petition, Bedi said that in
case these photographs were found genuine and were indeed shot with hidden
camera, it called for a high level-probe into how it was shot inside the jail.
"If the photographs are found
to be genuine, the official responsible for the security of the jail deserves
to be dealt with sternly," Monica said in her petition.
She
was acquitted by a Bhopal court in a passport forgery case on July 16 and was
released July 25 from a Hyderabad jail after getting bail from a court there in
a similar case.
Blackberry Controversy
Today BlackBerry caved in to the demands of the government and
agreed to install a server in India. It seems the Indian government is
uncomfortable with any kind of private communication. It wants to know
everything and calls those who disagree traitors.
It’s shocking to see the support that the government has. Many
have congratulated the administration for “being firm” and “not bowing down.”
As if being an arrogant, overbearing jerk somehow validates your worth. This
adolescent prick waving by the government to show their strength only
highlights its insecurity. By telling me that everything I say and write has to
be monitored, it’s asking me to trust them completely. Is that even possible?
It’s astounding how some people can criticize the government
no end on one hand, and at the same time demonstrate a touching degree of faith
in Big Brother. Hello split personality!
The Indian Supreme Court has ruled several times that privacy is a Constitutional Right in India. Now we’re expected to
believe that giving it up and letting bureaucrats scan my life will bring me
some sort of security. But will it? In reality, the chances of me being
killed in a terror attack are fifty time lesser than being hit by lightning!
So to prevent this miniscule number of deaths, the citizens of a free country
are expected to give up their right to confidential communication? It’s absurd
on the very face of it.
Moreover, we should remind ourselves of India’s nature. Freedom
comes with risks. I’m willing to take the risk of dying in a terrorist attack
if I’m allowed my civil liberties. I don’t want to hide away in closed rooms
and have all my communications monitored. That’s not life worth living. And
when we became independent in 1947, we decided to take that risk.
India isn’t a country for the feeble hearted. It’s not a place
where you can be secure and get offended by every little thing. If you
want foolproof security, go to another country. Some ultra nationalists claim
that the Indian government had the right to demand concessions from BlackBerry
because China and Saudi Arabia had them. What a comparison! What proud company
we keep…
Let’s remember the quote of Benjamin Franklin. One that
has been repeated very often these days and which is still ignored.
‘Those
who would give up Essential Liberty to purchase a little
Temporary Safety, deserve neither Liberty nor Safety.’
Naz Foundation Case[118]
The most significant
development outside search and surveillance issues is the new decision of the
High Court of Delhi in the Naz Foundation Case (2 July 2009). The case
was public interest litigation brought by the NGO, Naz Foundation to challenge
the constitutional validity of Section 377 of the Indian Penal Code, 1860
(IPC), which criminally penalizes what is described by the section heading as
‘unnatural offences’ (‘Whoever voluntarily has carnal intercourse against the
order of nature with any man, woman or animal …’), therefore in the Court’s
interpretation effectively criminalizing sex other than heterosexual
penilevaginal.
The Delhi High Court
initially dismissed the application as an ‘academic challenge’, but was
required by the Supreme Court in 2004 to re-examine the matter.
The petitioners argued ‘to the effect that the prohibition of
certain private, consensual sexual relations (homosexual) provided by Section
377 IPC unreasonably abridges the right of privacy and dignity within the ambit
of right to life and liberty under Article 21 [which] can be abridged only for
a compelling state interest which, in its submission, is amiss here’. As the
Court noted ‘A rather peculiar feature of this case is that completely
contradictory affidavits have been filed by two wings of Union of India. The
Ministry of Home Affairs (MHA) sought to justify the retention of Section 377
IPC, whereas the Ministry of Health & Family Welfare insisted that
continuance of Section 377 IPC has hampered the HIV/AIDS prevention efforts.’
The Court concluded that ‘it is clear that the thrust of the [MHA’s] resistance
to the claim in the petition is founded on the argument of public morality.
Though the MHA has referred to the issue of public health and healthy
environment, the affidavit has not set out elaborately the said defence.’
The key passage in the
Court’s finding that Sec.377 breached the right of privacy is: The sphere of privacy allows persons to
develop human relations without interference from the outside community or from
the State. The exercise of autonomy enables an individual to attain
fulfillment, grow in self-esteem, build relationships of his or her choice and
fulfill all legitimate goals that he or she may set. In the Indian
Constitution, the right to live with dignity and the right of privacy both are recognized
as dimensions of Article 21. Section 377 IPC denies a person's dignity and criminalizes
his or her core identity solely on account of his or her sexuality and thus
violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a
gay person a right to full personhood which is implicit in notion of life under
Article 21 of the Constitution.
The Court then disposed
of claims that this invasion of privacy was justified within the
exception to Article 21: While it could
be “a compelling state interest” to regulate by law, the area for the protection
of children and others incapable of giving a valid consent or the area of
non-consensual sex, enforcement of
public morality does not amount to a “compelling state interest” to justify
invasion of the zone of privacy of adult homosexuals engaged in consensual sex
in private without intending to cause harm to each other or others.
… it is not within the constitutional competence of the State to invade
the privacy of citizens lives or regulate conduct to which the citizen alone is
concerned solely on the basis of public morals. The criminalization of private
sexual relations between consenting adults absent any evidence of serious harm
deems the provision's objective both arbitrary and unreasonable. The state
interest “must be legitimate and relevant” for the legislation to be non-arbitrary
and must be proportionate towards achieving the state interest. If the
objective is irrational, unjust and unfair, necessarily classification will
have to be held as unreasonable.
The nature of the
provision of Section 377 IPC and its purpose is to criminalize private conduct
of consenting adults which causes no harm to anyone else. It has no other
purpose than to criminalize conduct which fails to conform with the moral or
religious views of a section of society. The discrimination severely affects
the rights and interests of homosexuals and deeply impairs their dignity.
In addition, the Court
held that s377 violated Article 14 (equality before the law) and its
more particular expression in Article 15
(prohibiting discrimination on the grounds of sex). It found that sexual
orientation is a ground analogous to sex, and that discrimination on the grounds
of sexual orientation violates Article 15. While some constitutional rights are
only of ‘vertical’ application (against State actions), ‘Article 15(2)
incorporates the notion of horizontal application of rights. In other words, it
even prohibits discrimination of one citizen by another in matters of access to
public spaces. In our view, discrimination on the ground of sexual orientation
is impermissible even on the horizontal application of the right enshrined under
Article 15’.
The
Court therefore held that s377 violated Articles 21, 14 and
15 of the Constitution, insofar as it criminalizes consensual sexual acts of
adults in private. Because of the doctrine of
Severability, it ‘will continue to
govern non-consensual penile non-vaginal sex and penile non-vaginal sex
involving minors’ [under 18].
The Naz Foundation
Case therefore takes the protection of privacy under the Indian Constitution
beyond issues of search and surveillance. The broadest statement of the Delhi High
Court’s approach is where, following its review of Indian case law to date on
protection of privacy, it states ‘The
right to privacy thus has been held to protect a “private space in which man
may become and remain himself”. The ability to do so is exercised in
accordance with individual autonomy’. If such an expansive approach was adopted
by the Indian Supreme Court, it is capable of developing in the direction of
something like the ‘right to informational self determination’ of the German
Constitutional Court.
Recently chief minister of J&k
taken the name of rape victim in the assembly but before this matter get hyped
he apologized publicly.
Chapter –ix
conclusion
The notion of fundamental rights, such as a right to privacy as
part of right to life, is not merely that the State is enjoined from derogating
from them. It also includes the responsibility of the State to uphold them
against the actions of others in the society, even in the context of exercise
of fundamental rights by those others.
The right to privacy in India has
failed to acquire the status of an absolute right. The right in comparison to
other competing rights, like, the right to freedom of speech & expression,
the right of the State to impose restrictions on account of safety and security
of the State, and the right to information, is easily relinquished. The
exceptions to the right to privacy, such as, overriding public interest, safety
and security of the State, apply in most countries. Nonetheless, as the paper
demonstrates, unwarranted invasion of privacy by the media is widespread. For
instance, in the UK, Sweden, France and Netherlands, the right to photograph a
person or retouching of any picture is prohibited unlike, in India where press
photographers do not expressly seek consent of the person being photographed,
if he/she is in a public space. In France, not only is the publication of
information is prohibited on account of the right to privacy, but the method in
which the information is procured also falls within the purview of the right to
privacy and could be violative. This includes information or photograph taken
in both public and private spaces. Privacy within public spaces is recognized,
especially, “where there is reasonable expectation of privacy.” The Indian
norms or code of ethics in journalism fail to make such a distinction between
public and private space. Nor do the guidelines impose any restrictions on
photographing an individual without seeking express consent of the
individual.
The Indian media violates privacy in
day-to-day reporting, like overlooking the issue of privacy to satisfy morbid
curiosity. The PCI norms prohibit such reporting, unless it is outweighed by
‘genuine overriding public interest’. Almost all the above countries prohibit
publication of details that would hurt the feelings of the victim or his/her
family. Unlike the UK, where the PCC can pass desist orders, in India the
family and/or relatives of the victims are hounded by the media.
In India, the right to privacy is not a positive right. It
comes into effect only in the event of a violation. The law on privacy in India
has primarily evolved through judicial intervention. It has failed to keep pace
with the technological advancement and the burgeoning of the 24/7 media news
channels. The prevalent right to privacy is easily compromised for other
competing rights of ‘public good’, ‘public interest’ and ‘State security’, much
of what constitutes public interest or what is private is left to the
discretion of the men.
references
BOOKS:
·
Seervai.,
H.M., “Constitutional Law of India: A Critical Outlook”, 3rd
Edition, Vol: 2, 2008.
·
Jain.,
M.P., “Constitutional Law of India”,6th Edn.,2010,Nagpur:lexis
nexis,butterwords.
·
Shukla.,
V.N., “Constitution of India”., 10th Edition, Rd. by Singh., M.P.,Reprint-March,2007,
Eastern Book Company: Lucknow.
·
De., D.J.,
“Interpretation and Enforcement of Fundamental Rights”., Eastern Law House: Kolkata,
2000.
ARTICLE:
·
THE
SUBSTANTIVE RIGHT TO PRIVACY: TRACING THE DOCTRINAL SHADOWS OF THE INDIAN
CONSTITUTION by Abhinav Chandrachud
ü Cite as : (2006) 3 SCC (Jour) 31
·
The Right to Privacy in the Age of Information and Communications
by Madhavi Divan
by Madhavi Divan
ü Cite as : (2002) 4 SCC (Jour) 1
·
Privacy and the Right to Information Act, 2005 by N
N Mishra, Lisa Parker, L Nimgaonkar, S N Deshpande.
·
Privacy & Media Law
INTERNET:
- - - - - - - - -
[1] (1994)
6 SCC 632, 649-50 R.Rajagopal v. State of Tamilnadu.
[2] AIR 1963 SC 1295
[3] (1975) 2 SCC 148
[4] There are also a few statutory provisions
contained in the Code of Criminal Procedure Section 327(1), the Indecent Representation of Women
(Prohibition) Act, 1980 (Sections 3 and 4), the Medical Termination of
Pregnancy Act, 1971 Section 7(1)(c), the Hindu Marriage Act, 1955
(Section 22), the Special Marriages Act, 1954 (Section 33), the Children Act,
1960 (Section 36), and the Juvenile Justice Act, 1986 (Section 36), all of
which seek to protect women and children from unwarranted publicity.
[5]
This would include his family, marriage,
procreation, motherhood, child-bearing, education etc.
[6]
Thornburgh
v. American College of Obstetricians
& Gynecologists, 476 US 747, 772 (1986).
[7] Gerety,
[8] Ibid.
[9] Bostwick,.
[10]
Daniel J. Solove, "Conceptualizing
Privacy", (2002) 90 CAL. L. REV. 1087, 1088 (hereinafter Solove).
[12]
The early Indian privacy cases dealt
exclusively with police surveillance of habitual criminals. See e.g. Kharak
Singh v. State of U.P., AIR 1963 SC 1295 (challenging Chapter XX of
the U.P. Police Regulations which placed possible criminals under
surveillance); Gobind v. State of M.P., (1975) 2 SCC 148
(challenging the validity of Regulations 855 and 856 of the M.P. Police
Regulations, which permitted the police to keep an uncomfortable surveillance
on individuals suspected of perpetrating crime).
[13] The Fourth Amendment of the US
Constitution provides a safeguard from unreasonable search and seizure, and no
search can be carried out without a warrant issued on probable cause. The
Supreme Court has not allowed Fourth Amendment developments to percolate into
the Indian Constitution. See M.P. Sharma v. Satish Chandra, AIR
1954 SC 300 (rejecting the premise that search and seizure violates the
principle of self-incrimination embedded in Article 20(3) of the Constitution).
But see District Registrar and Collector v. Canara Bank, (2005) 1
SCC 496 (finding the Andhra Pradesh Amendment to Section 73 of the Stamp Act,
1899, to be unconstitutional since it permitted search and seizure on private
premises). See infra I.B.2. Search and Seizure: The Fourth Amendment.
[15]
Kyllo v US.,121 US 354 (2003).
[16]
(1994) 6 SCC 632, 649-50.
[18] Ibid.
[19]
There are also a few statutory
provisions contained in the Code of Criminal Procedure Section 327(1), the
Indecent Representation of Women (Prohibition) Act, 1980 (Sections 3 and 4),
the Medical Termination of Pregnancy Act, 1971 Section 7(1)(c), the
Hindu Marriage Act, 1955 (Section 22), the Special Marriages Act, 1954 (Section
33), the Children Act, 1960 (Section 36), and the Juvenile Justice Act, 1986
(Section 36), all of which seek to protect women and children from unwarranted
publicity.
[20]
This would include his family, marriage,
procreation, motherhood, child-bearing, education etc.
[21] (1994) 6 SCC 632, 649-50.
[22]
Ironically, it was by borrowing from the English case-law and creatively
interpreting it that the law in America developed. And yet, the law of privacy
in England has lagged far behind, inviting serious criticism from commentators.
[23]
(1849)
1 Mac & G 25 : 41 ER 1171
[24] (1991) FSR 62
[25]
Hopefully, the Human Rights Act in 1998
which imposes a positive obligation to act in accordance with the European
Convention on Human Rights will have a positive effect on the development of
the law in the U.K.
[26] 4
Harv L Rev 193.
[27]
381 US 479 (1965)
[28]
Roe v. Wade,
410 US 113 (1973).
[29]
See
Meyer v. Nebraska, 262 US 390 (1923); Pierce v. Society
of Sisters, 268 US 510 (1925); Prince v. Massachusetts, 321
US 158 (1944).
[30]
Carey v. Population Services
International, 431 US 678, 685 (1977). See also Washington v. Glucksberg,
521 US 702 (1997) (dealing with the question of autonomy and suicide).
[32]
Bowers v. Hardwick, 478 US 186,
204 (1986) (Blackmun, J. dissenting).
[33]
381
US 479 (1965)
[34] Ibid., at 485-86
[35]
405
US 438 (1972)
[36]
Ibid., at 453
[37]
410
US 113 (1973)
[38]
Ibid., at 153
[39]
492
US 490 (1989)
[42]
Ridder
& Woll, supra
fn 88 and 78.
[43]
388
US 1 (1967)
[44]
478
US 186 (1986)
[45]
539
US 558 (2003)
[46]
Ibid., at 562
[47]
316
US 535 (1942)
[49]
394
US 557 (1969)
[50] AIR 1978 sc 597.
[51]
The early Indian privacy cases dealt
exclusively with police surveillance of habitual criminals. See e.g. Kharak
Singh v. State of U.P., AIR 1963 SC 1295 (challenging Chapter XX of
the U.P. Police Regulations which placed possible criminals under
surveillance); Gobind v. State of M.P., (1975) 2 SCC 148
(challenging the validity of Regulations 855 and 856 of the M.P. Police
Regulations, which permitted the police to keep an uncomfortable surveillance
on individuals suspected of perpetrating crime)
[52]
The Fourth Amendment of the US
Constitution provides a safeguard from unreasonable search and seizure, and no
search can be carried out without a warrant issued on probable cause. The
Supreme Court has not allowed Fourth Amendment developments to percolate into
the Indian Constitution. See M.P. Sharma v. Satish Chandra, AIR
1954 SC 300 (rejecting the premise that search and seizure violates the
principle of self-incrimination embedded in Article 20(3) of the Constitution).
But see District Registrar and Collector v. Canara Bank, (2005) 1
SCC 496 (finding the Andhra Pradesh Amendment to Section 73 of the Stamp Act,
1899, to be unconstitutional since it permitted search and seizure on private
premises). See infra I.B.2. Search and Seizure: The Fourth Amendment
[53]
Solove.
[54]
AIR 1963 SC 1295
[55] Ibid., at 1303
[56]
Ibid., at
1306
[57]
(1975) 2 SCC 148
[58]
Ibid., at
150
[59]
Ibid., at
156.
[60]
Ibid., at
157.
[61]
(1981) 1 SCC 420
[62] (1978) 4 SCC 494. For more discussion on
the topic, See Richard Gruner, "Government Monitoring of
International Electronic Communications: National Security Agency Watch List
Surveillance and the Fourth Amendment", (1978) 51 S. CAL. L. REV. 429;
Mark Jonathon Blitz, "Video Surveillance and the Constitution of Public
Space: Fitting the Fourth Amendment to a World that Tracks Image and
Identity", (2004) 82 TEX. L. REV. 1349
[63]
(1997) 1 SCC 301. It must be noted that
surveillance does not merely refer to physical surveillance. It has been
defined as a "police investigative technique involving visual or electronic observation
or listening
directed at a person or place". See Black's Law Dictionary, (5th
Edn., 1979) p. 1296. It therefore follows that "telephone-tapping" is
a form of surveillance. See also V.R. Krishna Iyer, Freedom of
Information, (1990), p. 129
[64]
Ibid., at 311. See also R.M.
Malkani v. State of Maharashtra, (1973) 1 SCC 471 (stating that
evidence obtained by telephone-tapping could be used in a court of law).
[65]
"Nor shall (any person) be
compelled in any criminal case to be a witness against himself...." (sic).
See generally Boyd v. United States, 116 US 616 (1886)
(considering the seizure of 35 cases of plate glass by the Collector); Weeks
v. United States, 232 US 383 (1914) (considering the seizure of papers
by the police, which showed the accused to have sent lottery tickets through
the mail); Olmstead v. United States, 277 US 438 (1928)
(Brandeis, J. dissenting that it would be a lesser evil for criminals to go
free than for the Government to "play an ignoble part" by tapping
phone conversations); Katz v. United States, 389 US 347 (1967)
(finding that tapping into a telephone conversation would amount to a search
and seizure and all the Fourth Amendment safeguards would apply); Terry
v. Ohio, 392 US 1 (1968) (considering a confrontation on the street
between a policeman and citizens to amount to a search and seizure); Stanley
v. Georgia, 394 US 557 (1969) (finding that the State had no business to
tell a man what books to read in the privacy of his home). However, a
particular author finds these developments to be "initially plausible but
ultimately misguided": Akhil Reed Amar, "Fourth Amendment First
Principles", (1994) 107 HARV. L. REV. 757. See also Carol S.
Steiker, "Second Thoughts About First Principles", (1994) 107 HARV.
L. REV. 820 (justifying the principles of the Fourth Amendment on the grounds
that "individual liberties entail social costs").
[66]
1954 SCR 1077
: AIR 1954 SC 300. See also R.M. Malkani v. State of Maharashtra,
(1973) 1 SCC 471, supra fn 46
[67] Ibid.,
AIR at 304-06. The Supreme Court considered the decision of the US Supreme
Court in Boyd v. United States, 116 US 616 (1886), and found that
(SCR p. 1091): "what that decision really established was that the
obtaining of incriminating evidence by illegal search and seizure is
tantamount to the violation of the Fifth Amendment"
[69]
(2005) 1 SCC
496. See also ITO v. Seth Bros., (1969) 2 SCC 324 (dealing with a
similar question regarding Section 132 of the Income Tax Act, 1961).
[74] Ibid.,
at 288. (a) Are you married-Yes (b) If so, please state: (i)
Your husband's name in full and occupation; (ii) State the number of
children, if any, and their present ages; (iii) Have the menstrual
periods always been regular and painless and are they so now? (iv) How
many conceptions have taken place? How many have gone full term? (v)
State the date of last menstruation; (vi) Are you pregnant now? (vii)
State the date of last delivery; (viii) Have you had any abortion or
miscarriage?
[79]
376 US 255 (1964) (permitting the criticism of official conduct).
[80]
385 US 374 (1967) (finding no fault to lie as long as the statement was
not made with actual malice, with knowledge that it was false, or with reckless
disregard of whether it was false or not)
[81]
(1994) 6 SCC 632, 649-50
[82]
(1975) 2 SCC 148, (finding that "Any right to privacy must
encompass and protect the personal intimacies of the home, the family,
marriage, motherhood, procreation and child-rearing"). See supra
I.B.1. Surveillance
[83]
Incidentally, the US Supreme Court has defined the right as that of
marriage, procreation, contraception (as opposed to
"motherhood"), family relationships, child "rearing"
as opposed to child "bearing" and education
[84]
(1994) 6 SCC 632, 650
[85]
(2003) 4 SCC 399. For a discussion on the first PUCL case see supra
I.B.1. Surveillance
[86]
Ibid., at 471
[87]
(2004) 9 SCC 580
[88]
Ibid., at 603
[89]
(2004) 2 SCC 476
[90]
Ibid., at 479
[91]
Kesavananda Bharati v. Union of India, (1973) 4 SCC 225,
873 (Mathew, J.). For definitions of marriage by the US Supreme Court, see Skinner
v. Oklahoma, 316 US 535, 541 (1942); Griswold v. Connecticut,
381 US 479, 486 (1965); Loving v. Virginia, 388 US 1, 12 (1967)
[92] This decision is subject to a minimum
prescription imposed by the State.
[93]
The State can enumerate prohibited relations, in order to prevent
persons of the same family from marrying one another. The decision cannot
however be made on the consideration of dowry.
[94]
The State can impose a restriction on the number of persons one can
marry, depending upon the collective conscience of a society.
[95]
This question cannot be based upon any considerations of the sex of the
child, particularly when the child in the womb is a female, in order to prevent
manifestations of female infanticide.
[96] The
State can impose restrictions on the maximum number of children one can have
depending upon the population policy
[97] This
decision should not be confused with whether
to educate the child at all, which is not in the hands of the parents, but
rather, in the hands of the State as parens
patriae. This right is also subject to child labour laws.
[98] Susan
P. Stuart, "Fun with Dick and Jane and Lawrence: A Primer on Education
Privacy as Constitutional Liberty", (2004) MARQ. L. REV. 563, 565
[99] While
appearance, habits, income, personality, etc. may all be factors which
determine consent, medical ailments (e.g. whether a person is a lunatic, etc.)
can fundamentally affect this
decision. The Hindu Marriage Act, 1955 states that when a person is unable to
consent to marriage, owing to lunacy, etc., no marriage can take place
[100] Supra
fn 76-81
[101] (1998)
8 SCC 296.
[102] Ibid.,
at 306
[103] Ibid.,
at 308
[104] Ibid.,
at 308
[106]
Ibid.
[107]
Ibid.
[108]
Ibid.
[109]
Popkin, Helen A.S., "Gov't officials want answers to secret iPhone
tracking" MSNBC,
"Technology", April 21, 2011
[112] AIR
1995 Del 316
[113] (1997)
1 SCC 301
[114] Interestingly,
although the identity of the parties was concealed, a law journal which first
reported the judgment disclosed the names of the parties. This was subsequently
rectified by the publication of an apology and the rectification of names. But
the damage to the privacy of those concerned had already been done.
[115] (1988)
2 All ER 648.
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