RIGHT TO PRIVACY VIS A VIS MEDIA

INTRODUCTION
THE press is regarded as the fourth pillar of democracy and it is an institution
meant for the welfare of the country and its people. According to Article 19 (1)
A of the Indian Constitution, all citizens shall have the right to freedom of
speech and expression. The press also enjoys this freedom of speech and is
considered an institutional medium through which people of the country can
ask for their rights. The existence of a free, independent and powerful media
is the cornerstone of any democracy, especially of a highly mixed society like
India. Media is not only a medium to express ones feelings, opinions and
views, but it is also responsible and instrumental for building opinions and
views on various topics of regional, national and international agenda. The
pivotal role of the media is its ability to mobilize the thinking process of
millions. The increased role of the media in todays globalized and tech-savvy
world was aptly put in the words of Justice Hand of the United States Supreme
Court when he said, "The hand that rules the press, the radio, the screen and
the far spread magazines, rules the country".Democracy is the rule of the
people, a system which has three strong pillars - the executive, the legislature
and the judiciary. But as Indian society today tries to stabilise on its three
pillars, the guarantee of Article 19 (1) (a) has given rise to a fourth pillar i.e.
media. It plays the role of a conscience keeper, a watchdog of the functionaries
of society and attempts to address to the wrongs in our system, by bringing
them to the knowledge of all, hoping for correction. It is indisputable that in
many dimensions the unprecedented media revolution has resulted in great
gains for the general public. Even the judicial wing of the state has benefited
from the ethical and fearless journalism and taken suo motu cognizance of the
matters in various cases after relying on their reports and news highlighting
grave violations of human rights. The criminal justice system in this country
has many lacunae.
Media is a social instrument that is powerful enough to mould a society, to develop or
destruct it. It is a force that could be put to much constructive use in the right hands. But,
the social motive behind it is being lost in the present times. Given such a huge social
impact, it is also necessary to keep such a force in check. In the present times, the lack of a
properly defined system of law regulating the media has given way to increasing incidences
of infraction of privacy of individuals and derailment from the true purpose of the media in
society. While insinuations made by the media on factual basis must be given protection,

the wrongful wielding of pen and power should be condemned. This article has been written
with a view to analyze the issues of modern media and its effect on the right to privacy of
individuals.
INTRODUCTION
Civilization is the progress toward a society of privacy. The savages whole existence is
public, ruled by the laws of his tribe. Civilization is the process of setting man free from
men.[1]
The law relating to privacy is of recent origin and it recognizes an individuals right to be let
alone. This right is not restricted merely to his physical being and property but it also
extends to his mind space. He possesses the right to control the flow of information with
him and keep it out of the purview of the public. Before the advent of visual and electronic
media the question of privacy was a subtle one as newspapers had only a limited impact
given the vast majority of illiterate population. But with the modern media finding green
pastures in India the issue of privacy has gained importance. The lack of centralization
which existed prior to the internet age has changed since its onset by which now startling
amounts of personal information about an individual is accessible with one tap on a button.
The risk of information reaching the wrong hands has become very high. There has been an
unprecedented information revolution and the regulatory mechanisms existent now to
control the spread of information are limited in many ways and have failed in curtailing the
overstepping of the media. The laws in India have proved to be inadequate to counter these
situations and it is now necessary to have an overhauling of the system.
PRIVACY AND RIGHT TO FREE SPEECH
Privacy is vital to the mental, spiritual and physical well being of all individuals and also to
the morality and personality of the individual.[2]
The right to freedom of speech and expression and right to privacy are intricately
connected. In a liberal democracy like India, citizens have a right to talk on the telephone,
send e-mail, watch television and surf the internet without interference of government
unless for compelling reasons such as legitimate defense and national security
considerations.[3] A person who exercises his right to know and be informed may violate
another persons right to privacy. According to the New Oxford dictionary [4] privacy is the
absence or avoidance of publicity or display; the state or condition from being from society
of others, or from public interest, seclusion. The Blacks law dictionary [5] has defined it
as the right to be let alone; the right of a person to be away from unwanted publicity; and
the right to live without unwanted interference by public in matter with which the public is
not necessarily concerned.
The Right to privacy in India has derived itself from two sources: the common law of torts
and constitutional law.[6] Under common law, a private action for damages lies for

unlawful invasion of privacy. In Gobind v. State of Madhya Pradesh[7], it was held that 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, which would include his family,
marriage, procreation, parenthood, child bearing, education etc. without his consent.
However this is with two exceptions which are that this right is not applicable where the
publication has become public record and publication which relates to discharge of official
duties of a public servant, unless the publication is proved false, malicious or is untruthful.
Under the constitutional law, the right to privacy is not a specific fundamental right but has
nevertheless gained recognition. Despite not being enumerated in various reasonable
restrictions to the right to freedom of speech and expression enlisted under Article 19(2),
the Courts have carved out a Constitutional right to privacy through a liberal interpretation
of the right to life and liberty under Art 21. [8] In Kharak Singh v. State of Punjab[9], the
Supreme Court conferred judicial recognition upon the right to privacy as an aspect of the
fundamental right to life and personal liberty enunciated under Article 21 of the
Constitution. The rights to privacy vis--vis invasions by journalists were observed in Sheela
Barse v Union of India[10], Prabha Dutt v Union of India[11]and also State v Charulata
Joshi[12]. In two decisions the Supreme Court considered the nexus between right to
privacy and electronic communications. In RM Malkhani v. State of Maharastra[13] the
court held that it was important to protect citizens telephonic conversations and declined
the argument of the accused that secret taping violated his article 21 [14] as his privacy
had been disturbed. In Peoples Union for Civil Liberties v. Union of India [15] the court
suggested that unauthorized telephone interception infringes the right to privacy.
Further, in international treaties[16], to which India is a signatory, contain provisions for
the protection of individual privacy. Therefore, India has the responsibility to incorporate the
ideals safeguard therein in the domestic laws.
MODERN MEDIA AND PRIVACY ISSUES
Every democracy gets the Government it deserves and every society its media. In a country
with as robust and multi-faceted a freedom of expression as India, media plays a very
significant role in balancing the interests of public and exercise of its powers. Just as the
media is blessed with freedom of speech and expression for spreading awareness and
catering to the right to know of the public, it is equally important to ensure the privacy of
individuals which is an objective sought to be achieved by the law of privacy. It has been
observed by the apex court that, When there is a competition between the right to privacy
of an individual and the right to information of the citizens, the former right has to be
subordinated to the latter right as it serves larger public interest. [17]
In State of U.P v Raj Narain[18] the Supreme Court has observed that, The people of this
country have a right to know every public act, everything that is done in a public way, by
their public functionaries. They are entitled to know the particulars of every public
transaction in all its bearing. The right to know, which is derived from the concept of
freedom of speech, though not absolute, is a factor which should make one wary, when

secrecy is claimed for transactions which can, at any rate, have no repercussion on public
security.
An outrageous example of sensationalisation of news was the 26/11 issue where a national
tragedy was turned into bait for profit using emotional trivia by the various competing
channels. They try to create hype out of factual news and attract viewers using the private
life of celebrities and other citizens through scrupulous efforts. Also in Peoples Union for
Civil Liberties v. Union of India[20], the apex court observed that the interception of
telephonic conversations and unauthorized tapping impinges on the right to privacy of
individuals and formulated guidelines to be adopted by the government when it intercepts
telephonic conversations. These guidelines were also included in the Telegraph rules.

STING OPERATION VIS--VIS RIGHT TO PRIVACY Article 19(2) of the Constitution of India provides that
nothing in sub-clause (a) thereof shall affect the operation of any existing law in so far as it relates to, or
prevent the state from making any law relating to libel, slander, defamation, contempt of court or any
matter which offends decency or morality or which determines the security of, or tends to overthrow
the state.The Sting Operations done by the media in India covers mostly the working of the public
servants in their offices. The official work of the public servants should be transparent and open to all as
it is in the public interest. But the courts have held that the Right to Privacy does not cover this official
work in its purview. Sting Operation began with a laudable objective of exposing corruption in high
places and gradually degenerated into cheap entertainment.A sting operation, as resorted by the law
enforcement agencies, is an operation designed to catch a personcommitting a crime by means of
deception. A typical sting will have a law-enforcement officer or a 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 question that arises is whether it is proper for the media
to act as the law enforcement agency.The carrying out of a sting operation may be an exercise of the
right of free press but it carries with it an indomitable duty to respect the privacy of others. The
individual who is the subject of such 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.Sting
operations are also undertaken to establish adultery. Such Operations can also be useful in the arrest of
terrorists and anti-national elements. The spy camera of media caught 11 members of the Parliament
accepting bribe for asking questions in the Parliament. When the media gets all the evidence against the
corrupt and the wrongdoer and the aim is public interest, why do media not file a case in the proper
court and submit these as proof? This will lead to punishing of these wrongdoers. Or, even after getting
such evidences, why no information is given to public authorities so as to make them take appropriate
actions? But, there exists an opposite view. Such cases cannot be filed in courts with these tapes- audio
or video recording- as evidence or proof because courts do not consider these as credible evidence and
proof. Moreover, as the Government machinery is not functioning the way it should function, that is
why instances of sting operations are on the increase.
In India, there has been a lot of controversy over the last few months over Section 66A of the Indian
Cyberlaw being the amended Indian Information Technology Act, 2000 on different occasions. In

Professor Ambikesh Mahapatra case, Professor Ambikesh Mahapatra was arrested on account of
forwarding of caricature/cartoons on Facebook. Further, Ravi Srinivasan Twitter case showed how on a
complaint, a persons tweets could be brought within the ambit of Section 66A of the amended Indian
Information Technology Act, 2000.
In K V Rao case, two men K.V. Rao and Mayank from Mumbai, were arrested for allegedly posting
offensive comments against some leaders on their Facebook group.
The recent case pertaining to Shaheen Dhada, where two girls were arrested for Facebook post and its
liking respectively, has become the talking point for all users.
In the last few days, we have been seen various discussions about defective IT legislation in India and
how there is a need for changing the same.
Section 66A makes it an offense when you send, by means of a computer resource or
communication device, any of the following information:
1.
2.
3.
4.
5.
6.
7.
8.
9.

any information that is grossly offensive;

any information that has menacing character;
any information which you know to be false but which is sent for purpose of causing annoyance;
any information which you know to be false but which is sent for purpose of causing inconvenience;
any information which you know to be false but which is sent for purpose of causing danger;
any information which you know to be false but which is sent for purpose of causing obstruction;
any information which you know to be false but which is sent for purpose of causing insult;
any information which you know to be false but which is sent for purpose of causing injury;
any information which you know to be false but which is sent for purpose of causing criminal
intimidation;
10. any information which you know to be false but which is sent for purpose of causing enmity;
11. any information which you know to be false but which is sent for purpose of causing hatred; or
12. any information which you know to be false but which is sent for purpose of causing ill will.
All the above as per (3) to (12) must be done persistently by using a computer resource or
communication device.
13. any e-mail or electronic mail message for the purpose of causing annoyance;
14. any e-mail or electronic mail message for the purpose of causing inconvenience;
15. any electronic mail or electronic mail message to deceive the addressee or recipient about the origin
of such messages;
16. any e-mail or electronic mail message to mislead the addressee or recipient about the origin of such
messages.
When you send either by means of a Computer, Computer System, Computer Network or using Mobile
Phone, Smart Phone, iPhone, iPad, Tablet, Smart Devices, Personal Digital Assistants, BlackBerry or any
other communication devices, the following kind of information, you could be covered under Section 66A
of the amended Indian Information Technology Act, 2000:1. If you swear or abuse somebody, the said swear words could be said to be grossly offensive. The
same could also be said to be having menacing character and your act could come within the ambit
of Section 66A(a) of the amended Indian Information Technology Act, 2000.

2. Anything defamatory which affects the character, reputation, standing or goodwill of a person could
also be deemed to be grossly offensive.
3. Making false allegations against the character of a person or character assassination could also
qualify as grossly offensive and having menacing character.
4. Using insulting words or symbols which are obscene, could also qualify as grossly offensive and
having menacing character.
5. Calling someone names could also be brought within the ambit of being grossly offensive or having
menacing character
6. Posting the picture of a person in uncomplimentary situations and environments could also be said
to be grossly offensive or having menacing character. For example, if you morphed the photograph
of a girl/boys face on the face of erotic/nude models body, the same could not only be obscene but
could also be grossly offensive and having menacing character.
7. Electronic morphing which shows a person depicted in a bad light could also be seen as an example
of information being grossly offensive or having menacing character.
8. Using vernacular gallies or bad words in English alphabets could also qualify as grossly offensive or
having menacing character.
9. Threatening somebody with consequences for his life, apart from being separate offences, could be
also construed as information which is grossly offensive or having menacing character.
10. Threatening to expose the ill-deeds of somebody could also qualify as information which has
menacing character.
11. Information containing malicious, mischievous character assassination
12. Information containing morphed pictures aimed at hurting religious sentiments.
13. Information showing gods and goddesses of particular religions in an uncomplimentary light.
14. Putting the picture of a person against a slogan/phrase/saying which does not depict his true
character or personality.
15. Deceiving the addressee or recipient about the origin of such messages. For example, sending
emails from a fake email account to another person, could qualify as an offence under Section 66A
of the amended Indian Information Technology Act, 2000.
16. Further misleading the addressee or recipient about the origin of such messages, e.g. sending emails and SMSs in the name of Reserve Bank of India for big lotteries, could also be brought under
Section 66A of the amended Indian Information Technology Act, 2000.
17. E-mail containing fake recruitment offers to unsuspected members of the public, could also qualify
as an offence under Section 66A of the amended Indian Information Technology Act, 2000.
The aforesaid are just some illustrations to demonstrate how broad Section 66A of the Indian Information
Technology Act, 2000 is and how and in what particular comprehensive manner can it impact you and
your life. The said illustrations are neither comprehensive nor complete but have been given as selective
examples of the ambit of Section 66A of the amended Indian Information Technology Act, 2000, for
academic, research and review purposes only.
The language and scope of legal terms used under Section 66A are very wide and are capable of
distinctive varied interpretations. Seen from another angle, Section 66A can be effectively used as a tool
for gagging legitimate free online speech. The problem under Section 66A is that it comes up with
extremely wide parameters which have not been given any specific definitions under the law. These
parameters are capable of being interpreted in any manner possible, by the law-enforcement agencies.
As such, while Section 66A talks about sending any information that is grossly offensive or having

menacing character, the law does not give any guidance as to what is grossly offensive or information
having menacing character. Thus, it is left to the subjective discretion of the law-enforcement agencies in
this regard. All wide meaning terms used under Section 66A have not been defined, which itself provides
huge amount of flexibility in Section 66A to be used in any circumstances perceivable. Thus, large
portions of legitimate free online speech could also be brought within the ambit of Section 66A of the
amended Indian Information Technology Act, 2000. Given the advent of technology and the way people
are misusing the same, there could be millions of situations which could qualify as offences under Section
66A of the amended Indian Information Technology Act, 2000.

Conclusion
There are tremendous problems in the way Section 66A of the amended Indian Information Technology
Act, 2000 has been drafted. This provision even though has been inspired by the noble objectives of
protecting reputations and preventing misuse of networks, has not been able to achieve its goals. The
language of Section 66A of the amended Indian Information Technology Act, 2000 goes far beyond the
reasonable restrictions on free speech, as mandated under Article 19(2) of the Constitution of India. For
India, being the worlds largest, vibrant democracy, reasonable restrictions on free speech need to be
very strictly construed. Section 66A of the amended Indian Information Technology Act, 2000 has the
potential of prejudicially impacting free speech in the digital and mobile ecosystems. Section 66A of the
amended Indian Information Technology Act, 2000 needs to be amended to made the Indian Cyber Law
in sync with the principles enshrined in the Constitution of India and also with the existing realities of
social media and digital platforms today.

The arrest of two women in Mumbai for a Facebook post is the latest heavyhanded move by Indias government to curb what Indian citizens say on the
Internet.
The two women were arrested Sunday under a section of the Indian Penal Code that
outlaws spreading statements creating or promoting enmity, hatred or ill- will between
classes after one complained about the citywide strike sparked by the death of the Shiv
Sena leader Bal Thackeray and the second woman liked her statement.
But the incident was just the latest in a string of recent arrests, detentions and account
suspensions in India over online comments. If you live in India and have an opinion
someone might not like, but you dont want to become a target of the law, theres one
easy rule you need to follow, experts say: stay off social media.
Right now, theres nothing one can do but to close up your social media accounts and
stop voicing your opinion on the Internet entirely, if you want to guarantee you wont be
arrested in India, said Sunil Abraham, executive director at the Center for Internet and
Society in Bangalore. (To be sure, thats not what most free speech advocates
recommend that you do. India Ink will soon have more on a social media activist who is
fighting Indias strict Internet controls.)