Media and Telecommunications Law: The Right to Privacy

INTRODUCTION

“Privacy is not something that I’m merely entitled to, it’s an absolute prerequisite.”

Privacy (from Latin privatus ‘separated from the rest, deprived of something, esp. office, participation in the government’, from privo ‘to deprive’) 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 aperson, it usually means there is something within them that is considered inherently special or personally sensitive. The degree to which private information is exposed therefore depends on how the public will receive this information, which differs between places and over time. Privacy is broader than security and includes the concepts of appropriate use and protection of information. [2]

“Privacy is an interest of the human personality. It protects the inviolate personality, the individual’s independence, dignity and integrity.” [3] “It is the right to be let alone – the most comprehensive of the rights and the right most valued by civilized men.” [4] Privacy underpins human dignity and other key values such as freedom of association and freedom of speech. [5] In other words, it is the state of being free from intrusion or disturbance in one’s private life or affairs. [6]

The media has made it possible to bring the private life of an individual into public domain exposing him to the risk of an invasion of his space and privacy. [7] With the process of globalization, and the development of the internet [8] , the convergence of information beyond technological barriers has become a common affair.

PROTECTION OF RIGHT TO PRIVACY

Privacy does not hold an inviolate or separate constitutional legal status in any country, it has rather, arisen out of judicial pronouncements. [9] Due to the inadequacy of laws to protect privacy of an individual, initially, the claims of the aggrieved were usually based on the malicious falsehood and trespass to a person. This was found to be highly inadequate since it failed to protect the plaintiff from keeping his personal circumstances away from public glare. [10]

POSITION IN USA

In US, the need for protection of privacy was articulated as early as 1890. [11] The right to privacy in the US was explicitly recognised in Griswold v Connecticut [12] .

The U. S. Constitution contains no express right to privacy.  The Bill of Rights, however, reflects the concern of James Madison and other framers for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions as against unreasonable searches (4th Amendment), and the 5th Amendment’s privilege against self-incrimination, which provides protection for the privacy of personal information.  In addition, the Ninth Amendment states that the “enumeration of certain rights” in the Bill of Rights “shall not be construed to deny or disparage other rights retained by the people.”  The meaning of the Ninth Amendment is elusive, but some persons (including Justice Goldberg in his Griswoldconcurrence) have interpreted the Ninth Amendment as justification for broadly reading the Bill of Rights to protect privacy in ways not specifically provided in the first eight amendments.

The question of whether the Constitution protects privacy in ways not expressly provided in the Bill of Rights is controversial.  Many originalists, including most famously Judge Robert Bork in his ill-fated Supreme Court confirmation hearings, have argued that no such general right of privacy exists.  The Supreme Court, however, beginning as early as 1923 and continuing through its recent decisions, has broadly read the “liberty” guarantee of the Fourteenth Amendment to guarantee a fairly broad right of privacy that has come to encompass decisions about child rearing, procreation, marriage, and termination of medical treatment.  Polls show most  Americans support this broader reading of the Constitution.

The Supreme Court, in two decisions in the 1920s, read the Fourteenth Amendment’s liberty clause to prohibit states from interfering with the private decisions of educators and parents to shape the education of children.  In Meyer v. Nebraska, [13] the Supreme Court struck down a state law that prohibited the teaching of German and other foreign languages to children until the ninth grade.  The state argued that foreign languages could lead to inculcating in students “ideas and sentiments foreign to the best interests of this country.”  The Court, however, in a 7 to 2 decision written by Justice McReynolds concluded that the state failed to show a compelling need to infringe upon the rights of parents and teachers to decide what course of education is best for young students.  Justice McReynolds wrote:

“While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

Two years late, in  Pierce v. Society of Sisters, [14] the Court applied the principles of Meyer to strike down an Oregon law that compelled all children to attend public schools, a law that would have effectively closed all parochial schools in the state.

The privacy doctrine of the 1920s gained renewed life in the Warren Court of the 1960s when, in Griswold v. Connecticut, [15] the Court struck down a state law prohibiting the possession, sale, and distribution of contraceptives to married couples.  Different justifications were offered for the conclusion, ranging from Court’s opinion by Justice Douglas that saw the “penumbras” and “emanations” of various Bill of Rights guarantees as creating “a zone of privacy,” to Justice Goldberg’s partial reliance on the Ninth Amendment’s reference to “other rights retained by the people,” to Justice Harlan’s decision arguing that the Fourteenth Amendment’s liberty clause forbade the state from engaging in conduct (such as search of marital bedrooms for evidence of illicit contraceptives) that was inconsistent with a government based “on the concept of ordered liberty.”

In 1969, the Court unanimously concluded that the right of privacy protected an individual’s right to possess and view pornography (including  pornography that might be the basis for a criminal prosecution against its manufacturer or distributor) in his own home.  Drawing support for the Court’s decision from both the First and Fourth Amendments, Justice Marshall wrote inStanley v Georgia:

“Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. 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 heritage rebels at the thought of giving government the power to control men’s minds.”

The Burger Court extended the right of privacy to include a woman’s right to have an abortion in Roe v Wade, [16] but thereafter resisted several invitations to expand the right.  Kelley v Johnson, [17] in which the Court upheld a grooming regulation for police officers, illustrates the trend toward limiting the scope of the “zone of privacy.” (The Court left open, however, the question of whether government could apply a grooming law to members of the general public, who it assumed would have some sort of liberty interest in matters of personal appearance.)  Some state courts, however, were not so reluctant about pushing the zone of privacy to new frontiers.  The Alaska Supreme Court went as far in the direction of protecting privacy rights as any state. In Ravin v. State, [18] drawing on cases such as  Stanley and Griswold but also basing its decision on the more generous protection of the Alaska Constitution’s privacy protections, the Alaska Supreme Court found constitutional protection for the right of a citizen to possess and use small quantities of marijuana in his own home.

In more recent decades, the Court recognized in Cruzan v. Missouri, [19]  Department of Health that individuals have a liberty interest that includes the right to make decisions to terminate life-prolonging medical treatments (although the Court accepted that states can impose certain conditions on the exercise of that right).  In 2003, in Lawrence v. Texas, [20] the Supreme Court, overruling an earlier decision, found that Texas violated the liberty clause of two gay men when it enforced against them a state law prohibiting homosexual sodomy.  Writing for the Court in Lawrence, Justice Kennedy reaffirmed in broad terms the Constitution’s protection for privacy:

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life….The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. ‘It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”

One question that the Court has wrestled with through its privacy decisions is how strong of an interest states must demonstrate to overcome claims by individuals that they have invaded a protected liberty interest.  Earlier decisions such as Griswold and Roe suggested that states must show a compelling interest and narrowly tailored means when they have burdened fundamental privacy rights, but later cases such as Cruzan and Lawrence have suggested the burden on states is not so high.

The future of privacy protection remains an open question The public, however, wants a Constitution that fills privacy gaps and prevents an overreaching Congress from telling the American people who they must marry, how many children they can have, or when they must go to bed.  The best bet is that the Court will continue to recognize protection for a general right of privacy.

POSITION IN UK

England does not have a written constitution and its tort law is mostly judge-made common law. The right to privacy is not expressly protected by statute, unlike the right to reputation, and even in those cases where the courts see fit to grant it protection, they have done so – up until recently – by attaching a variety of names and labels to it – i.e., breach of confidence, misuse of private information – and refraining, insofar as possible, from using the term “privacy” in all of its various derivations.

Nevertheless, already in 1848, of all places in England – and many years before the “official” birth of the privacy right in its “native” country, the United States – we find explicit case-law recognition of the fact that pictures of Queen Victoria, Prince Albert and even their beloved dog must remain “in a state of privacy.” Even though the pictures of the royal family members had originally been sent willingly and for the purpose of (limited) dissemination, the Vice Chancellor decided that “They alone are entitled to decide whether, and when, and how, and for whose advantage, their property shall be made use of.” [21]

Although the terminology used in this judgment and its overall rationale – with an emphasis on the element of control, the reasonable expectation of a realm of privacy, and the element of consent – are consistent with our perception of the privacy right in its familiar modern dress, it is impossible to cite this judgment as a recognition by English law of such a right. This and other similar decisions have been categorized – up until today – as part of the law of confidence, which constituted a separate source of equity-based liability for injury to a private interest, and remains valid to this very day, as the following analysis of recent English judgments shall demonstrate.

It may be said that the first true buds of such a right to privacy only began to sprout in 1998, when the British Parliament enacted the Human Rights Act, incorporating the principles of the 1950 European Convention on Human Rights into English law. The protection of privacy is enshrined in Article 8 of the European Convention, [22] while Article 10 establishes protection over freedom of expression. [23]

The combination of the European Convention on Human Rights and the statutory provisions compelling the English courts to apply its principles opened the door for every British citizen to file a lawsuit for an invasion of privacy based on a direct violation of the Human Rights Act, and dictated that the courts examine the compatibility of the common law to the requirements of the European Convention in each instance where the human rights protected therein are relevant in the case at hand. Within this context, the House of Lords ruled, already in 2003, that there was no need for a fundamental upheaval or a recognition of new legal principles in order to meet the requirements of Article 8 of the Convention, and that the torts protecting the varied aspects of privacy, as developed by English law, were sufficient – particularly the breach of confidentiality tort – to provide adequate protection for the “new” right, not just in the relationship between the individual and the State, but also in relations between individuals themselves. [24]

Nevertheless, in recent years, protection of the right to privacy has gained momentum in English law, perhaps more than could have been expected at the outset.

INTERNATIONAL TREATIES

While there is no universally accepted privacy law among all countries, some organizations promote certain concepts be enforced by individual countries. For example, the Universal Declaration of Human Rights, article 12, states:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 8 of the European Convention [25] on Human Rights provides a right to respect for one’s “private and family life, his home and his correspondence”, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”.

This article clearly provides a right to be free of unlawful searches, but the Court has given the protection for “private and family life” that this article provides a broad interpretation, taking for instance that prohibition of private consensual homosexual acts violates this article. This may be compared to the jurisprudence of the United States Supreme Court, which has also adopted a somewhat broad interpretation of the right to privacy. Furthermore, Article 8 sometimes comprises positive obligations: whereas classical human rights are formulated as prohibiting a State from interfering with rights, and thus not to do something (e.g. not to separate a family under family life protection), the effective enjoyment of such rights may also include an obligation for the State to become active, and to do something (e.g. to enforce access for a divorced father to his child).

In Golder v. United Kingdom, [26] prisoner requested a lawyer because he said he wanted to sue a guard for defamation. Access was denied. This violated the right to a fair trial (Article 6 ECHR) and client confidentiality. In Mosley v. News Group Newspapers Ltd, [27] per Eady J, whereby equitable breach of confidence is extended to protect Art. 8 rights.

The European Court of Human Rights in Strasbourg has developed a large body of jurisprudence defining this fundamental right to privacy.[citation needed] The European Union requires all member states to legislate to ensure that citizens have a right to privacy, through directives such as the 1995 Directive 95/46/EC on the protection of personal data.

POSITION IN INDIA

Right to Privacy Under Article 21

In India, the law of privacy evolved due to the challenge raised on police surveillance. The Court, struck down a regulation permitting surveillance and equated ‘personal liberty’ with ‘privacy’, and observed, that “the concept of liberty in Article 21 was comprehensive enough to include privacy. and that a person’s house, where he lives with his family is his ‘castle’ and that nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy”. [28] The law of privacy is the recognition of the individual’s right to be let alone and to have his personal space inviolate. The term ‘privacy’ denotes the rightful claim of the individual to determine the extent to which he wishes to share of himself with others and his control over the time, place and circumstances to communicate with others. It means his right to withdraw or to participate as he thinks fit. It also means the individual’s right to control dissemination of information about himself as it is his own personal possession. Privacy primarily concerns the individual. It, therefore, relates to and overlaps with the concept of liberty.

The most serious advocates 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. [29] The right to privacy as an independent and distinctive concept originated in the field of Tort law, under which a new cause of action for damages resulting from unlawful invasion of privacy was recognised. This right has two aspects which are but two faces of the same coin: (1) the general law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy, and (2) the constitutional recognition given to the right to privacy which protects personal privacy against unlawful governmental invasion. The first aspect of this right must be said to have been violated where, for example, a person’s name or likeness is used, without his consent for advertising or non advertising purposes or for that matter, his life story is written whether laudatory or otherwise and published without his consent. In recent times, however, this right has acquired a constitutional status. [30] India is a signatory to the International Covenant on Civil and Political Rights, 1966. Article17 thereof provides for the ‘right of privacy’. Article12 of the Universal Declaration of Human Rights, 1948 is almost in similar terms. Article 17 of the International Covenant does not go contrary to any part of our municipal law. Article21 of the Constitution has, therefore, to be interpreted in conformity with the international law. [31]

In some cases, although the right to privacy has not been expressly touched upon, but it was held that, the freedom of the press is not an absolute right. The press must first obtain the willingness of the person sought to be interviewed and no court can pass any order if the person to be interviewed expresses his unwillingness. [32] Where the question was whether the disclosure of the fact that a person was HIV+, resulting in the calling off of his marriage, was a violation of the right to privacy, the court held that the right of privacy was not treated as absolute and was ‘subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedom of others.” [33] The Supreme Court in a case, [34] held that the petitioners have a right to publish what they allege to be the autobiography of Auto Shankar insofar as it appears from the public records, even without his consent or authorization. But if they go beyond that and publish his life story, they may be invading his right to privacy. The Supreme Court held that the telephone tapping by Government [35] amounts infraction of Article 21 of the Constitution of India. Right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. [36]

Freedom of Expression and information U/A 19(1) (a)

The right to impart and receive information is a species of the right to freedom of speech and expression. A citizen has a Fundamental Right to use the best means of imparting and receiving information. The State is not only under an obligation to respect the Fundamental Rights of the citizens, but also equally under an obligation to ensure conditions under which the Right can be meaningfully and effectively be enjoyed by one and all. Freedom of speech and expression is basic to and indivisible from a democratic polity. The world has moved towards universalisation of right to freedom of expression. In this context reference may be made to Article 10 of the European Convention on Human Rights. Article 10 of the Convention provides that everyone has a right to freedom of expression and this right shall include freedom to hold opinions and to receive information and ideas without interference by the public authorities and regardless of the frontiers. Again, Article 19(1) and 19(2) of the International Covenant on Civil and Political Rights declares that everyone shall have the right to hold opinions without interference, and everyone shall have the right to freedom of expression, and this right shall include freedom to seek, receive and impart information of ideas of all kinds regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice. [37]

Similarly, Article 19 of Universal Declaration of Human Rights, 1948 provides that everyone has the right to freedom of opinion and expression and this right includes freedom to hold opinion without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. In the Indian context, Article 19(1) (a) of the constitution guarantees to all citizens’ freedom of speech and expression. At the same time, Article 19(2) permits the State to make any law in so far as such law imposes reasonable restrictions on the exercise of the rights conferred by Article 19(1) (a) of the constitution in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency, morality, contempt of court, defamation and incitement of offence. Thus, a citizen has a right to receive information and that right is derived from the concept of freedom of speech and expression comprised in Article 19(1) (a). [38]

In Kaleidoscope (India) (P) Ltd. v. Phoolan Devi, [39] 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.

It must, however, be noted that freedoms under Article 19, including Article 19(1) (a), are available only to citizens of India. An alien or foreigner has no rights under this Article because he is not a citizen of India. Thus to confer protection upon non-citizens one has to depend upon and apply Article 21 which is available to all persons, whether citizen or non-citizen.

Right to know under Article 21

Article 21 enshrines right to life and personal liberty. The expressions “right to life and personal liberty” are compendious terms, which include within themselves variety of rights and attributes. Some of them are also found in Article 19 and thus have two sources at the same time. [40] In R.P.Limited v Indian Express Newspapers [41] the Supreme Court read into Article 21 the right to know. The Supreme Court held that right to know is a necessary ingredient of participatory democracy. In view of transnational developments when distances are shrinking, international communities are coming together for cooperation in various spheres and they are moving towards global perspective in various fields including Human Rights, the expression “liberty” must receive an expanded meaning. The expression cannot be limited to mere absence of bodily restraint. It is wide enough to expand to full range of rights including right to hold a particular opinion and right to sustain and nurture that opinion. For sustaining and nurturing that opinion it becomes necessary to receive information. Article 21 confers on all persons a right to know which include a right to receive information. The ambit and scope of Article 21 is much wider as compared to Article 19(1) (a). Thus, the courts are required to expand its scope by way of judicial activism.

In P.U.C.L v. U.O.I [42] the Supreme Court observed that Fundamental Rights themselves have no fixed contents, most of them are empty vessels into which each generation must pour its contents in the light of its experience. The attempt of the court should be to expand the reach and ambit of the Fundamental Rights by process of judicial interpretation. There cannot be any distinction between the Fundamental Rights mentioned in Chapter-III of the constitution and the declaration of such rights on the basis of the judgments rendered by the Supreme Court. Further, it is well settled that while interpreting the constitutional provisions dealing with Fundamental Rights the courts must not forget the principles embodied in the international conventions and instruments and as far as possible the courts must give effect to the principles contained in those instruments. The courts are under an obligation to give due rega