Right to Privacy as a Human Right

‘Civilization is the progress towards a society of privacy’

– Ayn Rand, The Fountainhead

Curiously enough, although the right to housing, food and education have been branded as Economic, social and cultural rights, the right to privacy is seen as a civil right which is protected in most countries as something akin to a natural right. [1] There have been moves from the seventeenth century by various authors to describe so vague a concept as privacy [2] , however the importance of privacy as a human right has emerged primarily in the twentieth century, particularly in the years following the Second World War. [3]

The concept of privacy is very fluid and even the General Comment [4] of Article 17 of the ICCPR does not strive to explain what it means exactly. Some authors believe that Privacy underpins human dignity and other values such as freedom of association and freedom of speech [5] while some argue that privacy often if not always conflicts with the right to freedom of speech and expression. [6] Different countries recognize privacy in myriad ways in their country. In some jurisdictions such as in the United States of America, as privacy is not explicitly mentioned in the Constitution, a tort of privacy has been recognized. [7]

In England on the other hand, though the Human Rights Act, 1998 brought into effect the mandate of Article 8 of the ECHR, despite optimism by the judiciary [8] , neither is there a tort of privacy yet nor is there a well-developed right to privacy in the country yet. In fact it has been suggested that it is the very presence of Article 8 of the ECHR and its corresponding legitimization into the Human Rights Act that has stalled the process of giving legal teeth to the abstract right of privacy.

The Constitution of India also does not provide an explicit mention of the right to privacy but the judiciary has read in this right into Article 21 and also recognized the concept of privacy as a tort. [9] It is in India where the rights language is said to be well-developed at least with regard to civil and political rights that privacy faces opposition vis-à-vis other enumerated rights such as the right to freedom of speech [10] and the right to life. [11]

Chapter I:

Right To Privacy As A Human Right: Origins

1.1 Emergence of Privacy as a Concept

1.1.1 Privacy: A definitional crisis

The word ‘privacy’ itself is notoriously difficult to define. It is a slippery concept whose holistic understanding has eluded most authors on this subject. A primary reason for this confusion is that ‘privacy’ has myriad meanings and applications, and so attempts to develop a unitary definition should in fact be discouraged. Nevertheless, it would be useful to look at some definitions proposed by different commentators on the subject:

One of the first articles which advocated a Right to Privacy was that written by Warren and Brandeis in 1890. [12] They do not claim to provide an exhaustive or wholly accurate definition and merely indicate a class of matters wherein publication might be restricted on grounds of privacy. Dean William Prosser [13] , another eminent writer on the subject points towards a simple definition provided by the American Judge Cooley [14] : (Privacy is) “the right to live one’s life in seclusion, without being subjected to unwarranted and undesired publicity. In short it is the right to be let alone…” [15]

Later writers and cases have articulated myriad definitions of privacy [16] , articulation of all of which is not within the scope of this article. [17] One author even recommended that the word ‘privacy’ should not be used as a legal term of art as it adds little to our understanding either of the interest that it seeks to protect or of the conduct that it is designed to regulate. [18] In fact, this definitional crisis is reflected in the fact that even Committees in the UK commissioned for the very task of researching on Privacy were unable to cull out a comprehensive definition. [19]

1.1.2 Does the Right to Privacy originate in the theory of Natural Rights?

The recognition of the Right to Privacy is a relatively recent conception [20] however its origins have been traced in most cases to jurisprudential concepts. Firstly, to understand privacy as a concept, distinction has to be made between the “public” and the “private.” This was a debate which was present since the time of Aristotle and Socrates though not directly related to privacy. For Socrates, this distinction between the “outer” and “inner” man led to a private space in which man may become and remain himself which is nothing but the idea of privacy itself. [21] Locke, in his Labour Theory also talked about each man being his “own person” which is a disguised recognition of the right to privacy. [22] This was based on his conception of a person owning property in himself and this idea has been taken up and elaborated upon by Warren and Brandeis in their article. [23] According to them the best protection of the right to Privacy is afforded by embracing the Right to Property (inviolate personality) in its widest sense. They also argued that the right to Privacy is a right arising not from contract or from special trust but is a right applied against the entire world. This is almost identical to the rationale given for natural rights including human rights – it is a right (entitlement) held simply by virtue of being a person (human being). [24]

Later comments on Warren and Brandeis’ article by Harry H Wellington [25] also reiterate that their idea of an inviolate personality and its right to privacy was grounded on natural law philosophy. The link that privacy has with natural right was judicially recognized by an American Court in Pavesich v. New England Life Insurance Co. [26] which concluded that the “right to privacy has its foundations in the instincts of nature…and is therefore derived from natural law.”

1.2 The Right to Privacy as a Human Right: International Instruments

1.2.1 A human right to Privacy: Whether a civil/political right or a cultural/economic right?

The discussion above establishes to some degree of certainty that the right to privacy [27] originates from natural law theories. The fact that it has been accepted as a human right is obvious from the many international covenants/declarations and Agreements which mandate protection of the right of privacy. The primary amongst these documents is Article 12 [28] of the Universal Declaration of Human Rights, 1948 (UDHR). Two aspects are notable about this protection in the Magna Carta (Great Charter) of Human Rights: firstly that privacy has not been defined or qualified though it has been given explicit recognition. And secondly this article seems to give the State the duty to protect their citizens from any violation of their rights hence giving the right to privacy both a negative and a positive dimension. On this note, it is important to look at the protection granted by Article 17 of the International Covenant of Civil and Political Rights (ICCPR) [29] which almost reiterates Article 12 of UDHR verbatim. The European Convention on Human Rights, 1950 (ECHR) deals with freedom of expression encompassing the rights to publicity and personality under Articles 8 and 10.

Thus it can be seen that privacy is usually classified as a civil or a political right in line with the protection guaranteed under Article 17 ICCPR. The International Covenant of Economic, Social and Cultural Rights (ICESCR) does not mention a right to privacy but some authors argue that in certain respects it also involves questions of economic, cultural and social rights. [30] Another argument which can be put forth to argue that privacy is also a cultural right is the fact that a number of authors [31] believe that the right to privacy originates from the concept of morality [32] which is again a culture-specific understanding. Professor David Flaherty is of the opinion that though privacy is an important value but it is not identical to such fundamental values as liberty, freedom and democracy. [33] In other words he puts the right to privacy at a lower pedestal though there have been authorities to suggest how important the right is to ensure the fulfillment of other rights and hence is of a universal character. [34]

1.2.2 The interpretation of the International Regime for Right to Privacy: Scope of the provisions

Article 17 of the ICCPR mentions privacy but does not define it. General Comments 28 [35] and 16 [36] which seek to qualify it, also do not provide a definition or the scope of the term ‘privacy.’ Furthermore, in the most important case law on this Article: Coeriel and Aurik v. The Netherland [37] Mr Herndl in his dissenting opinion points to this flaw which leaves the word ‘privacy’ open to interpretation. That the State has obligations, both positive and negative to uphold privacy rights is undeniable.

Article 8 of the ECHR 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”. The Broad wording of this Article has allowed various kinds of rights to be protected, ranging from right to be free from unlawful searches to trans-sexuality. For instance, in the case of Malone v. UK [38] , the ECHR held that the tapping of telephones by the police constituted a clear breach of privacy under Article 8 of the Convention, even though the same was conducted under the express authority of the UK Government. Even though the primary objective behind this Article is “protecting the individual against arbitrary interference by the public authorities” [39] , some amount of interference has been justified as was observed in the case of Pretty v. The United Kingdom [40] . This case involved a challenge to the prohibition on assisted suicide as being a violation of Article 8, ECHR. The ECHR found that interference was “necessary in a democratic society” for the protection of the rights of others. [41] The ECHR expounded that the concept of necessity entails that the interference should relate to a pressing social need and must be proportionate to the legitimate aim pursued, taking into account that a certain margin of appreciation is always left to the national authorities. [42]

1.3 An Indian Conception of Privacy

Indian law on privacy is in its incipient stages. Even though an explicit mention of the right to privacy is not found in any ancient records or in Indian jurisprudence as such, a constitutional right to privacy was first carved out by a creative interpretation of the right to life under Article 21 and right to freedom of movement under Article 19(1)(d). [43] This article would not delve into a detailed analysis of the cases dealing with recognition of the right to privacy as a constitutional right in India [44] , however one landmark early judgment is required to be discussed regarding the State’s role in maintaining the right to privacy as required by the UDHR and the ICCPR [45] : the minority opinion of Justice Subbarao in Kharak Singh v. State of U.P. [46] who opinionated for the first time that the concept of liberty in Article 21 is comprehensive enough to include privacy and hence according to him, Regulation 236 of the U.P. Police Regulations (which allowed inter alia domiciliary visits by the police) would be ultra vires Article 21 and Article 19(1)(d). [47]

Chapter II:

Violations of Privacy by Non-State Actors in India: A look at the Conflict between Freedom of Speech And Privacy

3.1 Constitutional Guarantee: Freedom of Speech and Right to Privacy

3.1.1 Early Judicial rendering of the Right to Privacy

The Constitution of India guarantees freedom of speech and expression under Article 19(1)(a) to every citizen of India. No explicit right has been carved out for the Press in India nor do the reasonable restrictions mentioned in Article 19(2) include privacy. India is a signatory to the ICCPR and the UDHR and their privacy provisions have had a bearing on the development of the Right in India. [48]

The first case which discussed the relation of the freedom of the press vis-à-vis the right to privacy was R. Rajagopal v. State of Tamil Nadu [49] known commonly as the ‘Auto Shankar’ case after the criminal convicted of six murders and sentenced to death, who 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 State sought an injunction to restrain the newspaper from publishing the autobiography purportedly coming from Auto Shankar himself. The Court held that there are two aspects of privacy: (1) the tortuous law of privacy which affords an action for damages resulting unlawful invasion of privacy (2) the constitutional recognition given to the right to privacy under Article 21 [50] Though there is no independent right of privacy in India, for non-state violations, remedy can be sought through tort and defamation under Sections 499/500 of the Indian Penal Code.

3.1.2 Privacy of certain Court proceedings: Bar on reporting by the media

Section 327 of the Code of Criminal Procedure, 1973 provides that during the trial for certain offences such as rape and other sexual/intimate matters would be held in camera. Further in any such proceedings, it would be unlawful for anyone to print or publish any matter in relation to such proceedings without prior permission by the court. Similar provisions are present in Section 22 of the Hindu Marriage Act (HMA) and a number of other statutes. [51] The media in India prides itself on its reporting of “important” judgments. However sometimes it crosses its legal boundaries and violates the right to privacy present in the above statutes. One such recent case was the divorce proceedings of a cine actress and an NRI in R. Sukanya v. R. Sridhar [52] where the scope of Section 22 of HMA was in question after an in-camera trial had been agreed upon and an application filed for stopping the publicity of the trial. The Court upheld the Right to privacy guaranteed under Section 22 for matrimonial cases and shot down the “public interest” and Article 19(1)(a) argument advanced by the Press. [53] Recognizing its importance, the present Chief Justice Balakrishnan had also declared recently that the media should not violate the privacy of individuals during investigation or trial. [54]

3.2 Comparison of the Efficacy of different Privacy enforcement rules vis-à-vis the media

The Supreme Court has accepted that the Right of privacy may, apart from contract, also arise out of a particular specific relationship which may be commercial, matrimonial, or even political. [55] From the above discussion, it is apparent that India has all three kinds of protection against violation of privacy: constitutional, statutory as well as common law tort. All of them have been applied in different situations against media violations of the privacy right: in Media Watch Group v. UOI [56] when the faces of a rape victim and her husband were telecasted without concealing their identity on Doordarshan, the petitioner NGO filed this Writ to ask the first respondent to frame Rules/Regulations or to issue and prescribe guide-lines for telecast of programmes featuring rape and violence victim. Filming such victims of sexual violence etc without their permission was alleged to be a violation of Articles 14, 15, 19 and 21. However direct agitation of fundamental rights is only possible in cases where the media concerned is a “State” according to Article 12.

The balance has not always been tilted on the side of the right to privacy though: in cases such as Mr. K.J. Doraisamy v. AGM, SBI [57] , it has swung the other way as well. This involved the question whether a Bank/Financial Institution, has the right to publish the photograph of the defaulting borrower in Newspapers notwithstanding the existence of the Right to Privacy both legal and constitutional. The Court referred to the four exceptional circumstances when a banker might disclose information regarding its customer using an English case: Tournier v. National Provincial and Union Bank of England [58] one of which is applicable here: ‘duty of the Bank to disclose information to the public’ supersedes the Right to Privacy which was held to be a qualified right.

CONCLUSION

This article only gives select few examples of how the freedom of speech given to the media conflicts with the right to privacy which is a human right. The media, however does not always have a negative impact on the society. For example in the Jessica Lal case it was certain sections of the media which kept the case alive and raised enough agitation for the court to proceed. As reiterated in all the decisions mentioned above, both in India and abroad an acute need is felt to balance freedom of the press and the right to privacy.

Other than the strictly legal solutions explored above, it would be interesting if certain amount of self-regulation was practiced by the media in this area something akin to Advertising Standards Council of India. This would be a much needed compromise towards protecting the dignity of public figures and ordinary individuals alike.