5 ae THE RIGHT TO PRIVACY Civilization is the progress toward a society of privacy. The savage’s whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men. 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. Earlier, 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. ‘Privacy’ defined The term ‘privacy’ has been described as ‘the rightful claim of the individual to determine the extent to which he wishes to share himself with others and his control over the time, place and circumstances 10 communicate with others. It means his right to withdraw or to participate a he sees fit. It also means the individual's right to control dissemination of information about himself, it is his own personal possession,’? Another author defines privacy as a ‘zero-relationship’ between two or more persons 1, Ayn Rand: The Fountainhead, (1943), 2. A(C. Breckenridge: The Right to Privacy, (1971), [112}The Right to Privacy hat there is no i i ’ oe re suprensl Con communication between them if iy ee from intrusion or disturbance in eles Privacy ashe tates ing free . 4 ne’s private life or affairs’4 The weet is used to describe not only rights purely in the private domain ryeen individuals but also constitutional rights against the State. The former deals with the extent to which a private citizen (which includes the media and the general public) is entitled to personal information about another individual. The latter is about the extent to which government guthorities can intrude into the life of the private citizen to keep a watch over his movements through devices such as telephone tapping or surveillance. ‘This aspect also concerns the extent to which government authorities can exercise control over personal choices: for instance, by determining whether 3 pregnant wornan has the right to abortion,5 or whether an HIV infected has the right to marry® or have children. in the person Privacy and the right to free speech The right to freedom of speech and expression and the right to privacy are two sides of the same coin. One person's right to know and be informed fe another’s right to be left alone, Just as the freedom of speech semination of information on matters of tant to safeguard the private life of an ublic duties or matters of e these competing may violate and expression is vital for the dis: public interest, it is equally impo! individual to the extent that it is unrelated to pt public interest. The law of privacy endeavours to balanct freedoms. Modern media and privacy __ The exponential growth of the media, particularly the electronic media in recent years has brought into focus issues of privacy. The media has made it possible to bring the private life of an individual into the public domain, exposing him to the risk of an invasion of his space and his privacy. Ata 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 public. Even then, Years, the primary source of information to the Eve newspapers had a relatively limited impact given that the vast majorty of the Population was illiterate. This has changed today with growth in public Consciousness, a rise in literacy and perhaps most importantly, an explosion ot visual and electronic: media which have facilitated an unprecedented information revolution, It is no longer the film star alone who is in the public — 3 oa Privacy: lis Constitution and Vicissitudes, 4. Sh t ee 5. nay. Dharmpa, (2003) 4 SCC 493, para I. 521- Mr xe Wade, (1973) 410 US 113. ‘ 43 ¥. Hospital *2', (1998) 8 SCC 296. ‘Law and Contemporary Problems 31.114 Facets of Media Law (Chap, eye. Politicians, business persons, media personalities, professionals and socialites actively court the media to project themselves and to advance their agenda, oe ‘Advances in computer technology ; and telecommunications have exponentially 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, stock brokers, employers, doctors, lawyers, marriage bureaus, detectives, airlines, hotels and so on. Till recently, this information was held on paper; the sheer volume and a lack of centralisation 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 centralised and so easily accessible that one tap on a button could throw up startling amounts of personal information about an individual. Technology brings down the traditional boundaries between unconnected 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 data banks. This enables public authorities to keep a closer watch over the individual, 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 context may be collated and used in a completely unforeseen and startling context.” Coinciding with this technological revolution, is the enactment of a law on the right to information. The Right to Information Act, 2005 creates rights of access to information relating to public affairs and proceeds on a presumption in favour of openness, Tt doesn't end at public authorities, There are’ other Big ‘Brothers watching, + Every time you log on to the intemet you leave behind an electronic tail. Websites and! advertising companies are able to track users as they travel on the internet to assess their personal a 7. For instance, in the United States of Amer lective’ Service System is reported to have purchased a list of 167.000 names of boys who had responded to 2 promotion organised DY Ben & Jerry, a chain of ice cream parlours free ice cream on the occasion of their 18th birthday. This lst of names, addresses and dates of birth was used to track down those who hi failed to register for military service, zt birThe Right to Privacy M5 his information is used for the individual customer. ind a trail of habits and life styles. TI ting campaigns that target erences, ard you leave behi pre direct markel Every time you use your credit ci where YOU ‘shopped and when, what you bought, your brand your favourite restaurant. ftware preferences yyers routinely use so! ivacy is under siege: emplo: sry move of the employee. Employee pm to access their employees’ email and eve! « Field sales representatives have their movements tracked by the use of Jocation-based tracking systems in new wireless phones. . The availability of camcorders on mobile phones means that anyone could be clicking you or recording your conversation without your knowledge. Recent instances which kicked up 4 storm in the media include: (i) The MMS case involving the tirculation and sale of a video clip showing 2 Delhi school girl indulging in a sexual act with a fellow student; (ii) the purported expose of Bollywood's casting couch showing an aging actor propositioning a journalist posing as a Bollywood aspirant. International treaties and privacy In no country does the right to privacy enjoy the status of a specific, Privacy law has evolved largely consitutionally inviolate legal right. though judicial pronouncement. Despite the lack of specific constitutional ida place in international recognition, the right to privacy has long hel charters on human rights such as Article 12 of the Universal Declaration of Human Rights, 1948. Article 17 of the International Covenant on Civil and Political Rights, 1966 which India has ratified, reads: 1, No one shall be subject to arbitrary or unlawful interference with his privacy, family, human or correspondence, nor to lawful attacks on his honour and reputation. 2 Everyone has the right to the protection of th interference or attacks. Ati ‘ i Pf he 8 of the European Convention on Human Rights, 1950 reads: Eero has the right to respect for his private and family life, his home e his comespondence. ) The i . fhe shall be no interference by a public authority with the exercise of pa except such as is in accordance with law and is necessary in a the pcre in the interests of national security, public safety, for henna of disorder and crime or for the protection of health or e law against such116 Facets of Media Law [Chap, Privacy: cases in England and the USA In developing the law on privacy, Indian courts have relied largely on American case law. The American law on privacy has evolved faster than the law in England.§ One of the carliest cases in England, Albert v. Strange? involved the unauthorised 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 unauthorised 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. 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.” The case concemed a well-known actor who had to be hospitalised 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 unauthorisedly 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 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 the 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.!! de sags wh es 8, Ironically it was by borowing from English ce a a ee ane a oe ing in America developed. And yet, the law of privacy in England has tagged far behind, inviting much eriticism from commentators. 9, (1849) 1 MeN & G23. 10. (1991) FSR 62. | : me : se re Homan Rights Act 1998 which imposes a posive obligation fo act in accordance with be : Human Rights is expected to have a positive effect on the European Convention on varelopment of tie law in the UK.| 5 The Right to Privacy 117 In Campbell v. MGN,* Naomi Campbell, an international supermodel ‘an action against the Mirror group of newspapers claiming damages ch of confidence and invasion of privacy for disclosing that she was ving treatment for drug addiction. Campbell's claim was not that the disclosure that she had a drug problem was a breach of confidentiality, but that the obtaining and publishing of information relating to her treatment at a rehabilitation centre was in breach of confidence. The trial judge upheld her claim. The order was reversed by the Court of Appeal but subsequently restored by the House of Lords. Following the test of the Australian High Court in Australian Broadcasting v. Lena Game Meats Pty Lid.,!? the Court of Appeal did not find that a reasonable person of ordinary sensibilities, would, on reading that Campbell was a drug addict, find it highly offensive or even offensive that a paper also disclosed that she was attending meetings of Narcotics Anonymous. The peripheral disclosure of her attendance at Narcotics Anonymous was not in its context of sufficient significance to shock the conscience of the Court and justify judicial intervention. On the contrary, the Court found that the details given and the photographs lent credibility to the newspaper's claim that she was deceiving the public by claiming that she was not on drugs. There was therefore, no breach of confidence. It was held that if the publication of particular confidential information is in the public interest, the journalist must be given a reasonable latitude as to the manner in which that information is conveyed to the public or else his right to freedom of expression would be unnecessarily inhibited. The House of Lords reversed the verdict of the Court of Appeal holding 3:2, that the details of Campbell’s treatment were private information and imported a duty of confidence. The therapy was at risk of being damaged if there was a breach of the duty of confidence by publication. Article 10 of the European Convention on Human Rights was not absolute and could be restricted in the interests of privacy, the right to which was enshrined under Article 8 of the same Convention. In Douglas v. Hello Ltd.," international film stars Michael Douglas and Catherine Zeta Jones brought an action against Hello! magazine for unauthorised publication of photographs of their wedding. The couple had already signed a deal with a rival magazine, OK! (also a plaintiff in the action) for exclusive coverage of the wedding. The Court of Appeal found that there was a strong prima facie case on invasion of privacy, but vacated an interlocutory injunction against Hello! on the ground that the balance of Convenience was not in favour of the plaintiffs. Ledley, L.J. expressly Tecognised the right to privacy grounded. in the equitable doctrine of ed '2. 003) 1 All ER 224 (CAy; See also, (2004) 2 All ER 995 (HL). Q (2001) 185 ALR 1, p. 13. + (2001) 2 All ER 289. broughtlis Facets of Media Law (Chap, al autonomy — the law no longer needed ciently iy and the vietim but recognised privacy as a eee However, the final decree in the suit by the an ier ar i 8 damages to the plaintiffs based its conclusion on the Prine’ Tawmakers te confidence, leaving the concept of privacy a matic =e legislate on.'5 ; : - tect privacy was articulated as early ‘A, the need for a law to pro y was J Ss isoo cian ‘an article titled ‘The Right to Privacy’ was Published by Warren and Brandeis."® This article laid the intellectual foundations for the law on privacy. i) Recent inventions and business methods 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 'S Our purpose to consider whether the existing law affords a Principle which can be properly be invoked to Protect the privacy of individual; and if it does, what the nature and extent of such Protection i The American Courts t associated with the right to that the protection of Privac: Heyden,}* the US Supreme (T] Gor race the origins of the right to privacy as being Property.” But gradually the Courts recognised 'Y Must transcend property rights. In Warden ¥. Court declared: a oe that property interests control the right of the "nt tO search and seizure has been discredited... We (2003) 3 AIL ER 996, 16, 4 Harv L Rev 193, ae 17, Boyd v. United States, 116 US 616; 29 18, 387 US 294 (1967). MEITAG (S86)The Right to Privacy 119 5 ; Sea pave recognized tat he principal object of he fourth Amendment ction of privacy rather than property, and have js the protect Ane ingly discarded fictional and procedural bariers rested on property concepts." ¢ most. well-known ‘American cases on privacy are Griswold v. jcut® and Roe V. Wade." Griswold concerned a constitutional pallenge toa law which prohibited the use of contraceptives. Upholding the CC i Justice Douglas of the US Supreme Court held: GJovernmental purpose 10 control or, prevent activities vpstittionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms... Would we allow the police to search the sacred precincts of marital bedrooms for tell-tale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. Striking down the legislation as an unconstitutional invasion of the right to marital privacy, it was held that the right of freedom of speech and the press includes not only the right to utter or to print but also to distribute, feceive and read and that without those peripheral rights, the specific right would be endangered. Toe v, Wade concerned the right of an unmarried pregnant woman {0° ht to make that choice which concerned abortion. Upholding the woman's rig her private life, the Supreme Court held that although the American Constitution did not explicitly mention any right of privacy, the Supreme Court itself recognised such a right as a guarantee of certain ‘zones or areas of privacy’ and ‘that the roots of that right may be found in the First ‘Amendment, in the Fourth and Fifth ‘Amendment, in the penumbras of the Bill of Rights and in the concept of liberty guaranteed by the Fourteenth Amendment.” The law on privacy in India In India, the right to privacy is not a specific fundamental right but has nevertheless gained constitutional recognition. ‘Privacy’ is not enumerated amongst the various ‘reasonable restrictions’ to the right to freedom of speech and expression enlisted under Article 19(2). However, this lacuna has ing out a constitutional right to privacy by Not prevented the courts from carv! ‘creative interpretation of the right to life under Article 21 and the right to freedom of movement under Article 19(1\). et Seer 7 Supra n. 18, p. 304; see also United States v. Orito, 413 US 139 (1973). 3 381 US 479, 1. (1973) 410 US 113.4 120 Facets of Media Law (Chap, ‘The right to privacy in India has derived itself from two sources: the common law of tort and constitutional law.2? Under 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 i a8 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. There are two exceptions to this tule; first, that the right to privacy does not survive once the publication is 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 untruthful. Under constitutional law, the right to privacy is implicit in the fundamental right to life and liberty guaranteed by Article 21 of the Constitution This would include the right to be let alone. The constitutional right to privacy flowing from Article 21 must, however, be balanced against the fundamental right of the media to publish any matter of public interest. The first few cases that presented the Indian Supreme Court with the opportunity to develop the law on privacy were cases of police surveillance, The Court examined the constitutional validity of Icgislations that empowered the police to keep a secret watch on the movements of an individual. The first of these cases, Kharak Singh v. State of U.P?! challenged the constitutional validity of Regulation 236 of the U.P. Police Regulations which permitted surveillance. A majority on the Bench struck down Regulation 236(b) which authorised domiciliary visits as being unconstitutional but upheld the other provisions under that regulation, The Majority were unreceptive to the idea of recognising a right to privacy and dismissed the claim on the ground that there could be no fundamental right 0 protect ‘mere personal sensitiveness’. Their view was based on the Conclusion that the infringement of a fundamental right must be both direct 8 well as tangible and that the freedom guaranteed under Article 19(1)(d) was not infringed by a watch being kept over the movements of a suspect. “a dats: however, the minority view expressed by Justice Subba Rao that laid the foundations for the development of the law in India. Justice Subba sobs nis onetime 22, There are also a few statutory provisi i | eciceiaas (Section 327(1), the Indecer, [-siisherdnace| ii oo coset Cail se and 4), the Medical Termination of Prepnaney Act, 1971 (Section 7(1)(e), ke Hinda Marriage (Geeuon 36) andthe en oeesial Mariages Ac, 1954 (Section 33), the Children Act, 196 . juvenile : , ct I children from unwarranted publiciy \“" 1286 (Seetion 36) which seek to protect wo 23. & Rajagopal v. Stale of ZN, (1993) 6 SCC632. 24, AIR 1963 SC 1295. hoThe Right to Privacy 121 that the concept of ‘liberty’ in Article 21 was comprehensive ao hel include privacy and that a person's house, where he lives with his enouglt Oe ‘castle’ and that nothing is more deleterious to a man’s physical family 6 "ond health than a calculated interference with his privacy. The naphite was that surveillance by domiciliary visits and other acts under coneijon 236 Was tira vires Articles 19(1)(d) and Article 21. Regu! In Govind v. State of M.P.. also a case of surveillance under the hya Pradesh Police Regulations, the Supreme Court acknowledged a ad .g right to privacy. Yet, the Court upheld the impugned regulation lint authorised domiciliary visits in its entirety. This was on the ground ial the object of the provision was the prevention of crime. The Court held: Depending on the character and antecedents of the person subjected to surveillance as also the object and the limitation under which surveillance is made, it cannot be said surveillance by domiciliary visits would always be unreasonable restriction upon the right of privacy. Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right that fundamental Tight must be subject to restriction on the basis of compelling public interest. As regulation 856 has the force of law it cannot be said that the fundamental right of the petitioner under Article 21 has been violated by the provisions contained in it: for, what is guaranteed under that Article is that no person shall be deprived of his life or personal liberty except by the procedure established by ‘law’ 26 But the Court could not help express its discomfort with the provisions when it observed: (Djomiciliary visits and picketing by the police should be reduced to the clearest cases of danger to community security and not Toutine follow-up at the end of a conviction or release from prison or at the whim of a police officer. In truth, legality apart, these Tegulations ill-accord with the essence of personal freedoms and the State will do well to revise these old police regulations verging. Perilously near unconstitutionality27 Malak Singh v, State of P&H® was yet another challenge to the orstitutionality of police powers of surveillance, this time under the Police St and the Punjab Police Rules. The Supreme Court again upheld the jeulitions that authorised surveillance for the prevention of crime and ified the maintenance of story sheets’ and surveillance registers as 1975 SCC (Cri) 468. i 3h P. 157-58 (SCC), 28. iggy P83. p. 158 (SCC), (1981) 1 sce 420, 1981 SCC (Cri) 169.122 Facets of Media Law [Chap, confidential documents. The Court observed that surveillance of Persons who did not fall within the category mentioned under the impugneg ed with prevention of crime or excessive i reasons unconnect ‘ regulation, or for r to the protection of the Court. But the surveillance would entitle a citizen Taw on privacy was taken no further. ee ‘ourt touched upon the rights of the in ividual to privacy Tas by journalists in Sheela Barse v. Union of India. Prabha Dutt v. Union of India" and also in State v. Charulata Joshi Yn al} these cases, journalists sought permission from the Supreme Court to interview and photograph prisoners. Although the issue of privacy was not directly dealt with, the Court implicitly acknowledged the right to privacy by holding that the press had no absolute right to interview or photograph a prisoner but could do so only with his consent.22 R. Rajagopal v. State of T.N.3 is a watershed in the development of the Indian law of privacy. For the first time, the Supreme Court discussed the right to privacy in the context of the freedom of the press. The case concemed the right of the publisher of a magazine to publish the autobiography of the condemned prisoner, ‘Autoshankar’. The Respondents contended that the intended publication (which was to expose some sensational links between the police authorities and the criminal) was likely to be defamatory and therefore required to be restrained. The issue of the right to privacy came up in this context, The Supreme Court held that the press had the right to publish what they claimed was the autobiography of Autoshankar in so far as it appeared from the public records, even without his consent or authorisation. However, if the publication went beyond the Public record and published his life Story, that would amount to an invasion of his right to privacy. Similarly, the government and prison officials who Sought to protect themselves (by ostensibly seeking to protect the privacy of the incarcerated prisoner), did not have the right to impose a prior restraint on the publication of the autobiography; their remedy, if at all, could arise only after the publication. ; The Court Tecognised two aspects of the right to Privacy (1) the tortious law of Privacy which affords an action for damages resulting from an unlawful invasion of privacy and (2) the constitutional right ‘to be let alone’ implicit in the right to life and liberty under Article 21. A citizen has the 29. (1987) 4 SCC 373, 30, (1982) 1 SCC 1, 31, (1999) 4 SCC 65, 32, These cases are important becat blic’s righta know and epee bedi, ATE * bane Rewer ee 33, (1994) 6 SCC 632. aa The night to frivacy ight 10 safeguard his own privacy, that of his family, marriage, procreation, rig! af 04, hood, child bearing, education etc. and no person has the right to paren anything relating {0 such matters without the consent of the person publ aye Court acknowledged two exceptions 10 this rule: first, where s become a matter of public record, the right to privacy nO s. Second, public officials are not entitled to claim privacy duct in question relates to the discharge of their official he publication is based upon facts found to be untrue, the public 0} it is shown that the ublication Was made with reckless disregard for truth. It is sufficient for the publisher (0 show that he acted after a reasonable verification of facts. Privacy-related issues have cropped up in a variety of cases, ranging from biographical films and telephone tapping to the right of confidentiality ofan HIV-infected person. In Kaleidoscope (India) P Ltd. v. Phoolan Devi24 Phoolan Devi, once India’s most dreaded dacoit, sought an injunction restraining the exhibition of the controversial biographical 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 reached the prima facie conclusion that even assuming that Phoolan Devi was a public figure whose private life was exposed to the media, private matters relating to rape or the alleged murders committed by her could not be commercially exploited as news items or as matters of public interest. People’s Union for Civil Liberties v. Union of India®s was 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 included the right to hold a telephone conversation in the privacy of one’s home or office and that telephone tapping, a form of ‘technological eavesdropping” infringed the right to privacy. The Court found 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). Does the disclosure by a hospital of the medical condition of an AIDS Patient to his fiancée amount to a breach of the patient's privacy? This Question arose in Mr ‘X’ v. Hospital “7'36 The Supreme Court was confronted with the task of striking @ balance between two conflicting concel fe matter ha: the F longer subsists when the act or con duties. Even where U fficial is not entitled to protection unless Bh or 34. AIR 1995 Del 316. eS (197) 1 SCC 301, 6. (1998) 8 SCC 296,124 Facets of Media Law (Chap, fundamental rights: the AIDS patient's right to ena tis ik ji ialit i ica ition, of th and confidentiality of his medical conditi i" a "oho he was engaged to lead a healthy life. The Supreme Court concluded that since the life of the fiancée would be endangered by her jage and consequent conjugal relations with the AIDS victim, she was entitled ‘ding the medical condition of the man she was tled to information regarding the n n " ‘ory. There was, therefore, no infringement of the right to privacy.27 This case may be compared with an English case that arose in the late eighties, X v. Y28 A newspaper reporter acquired information about two doctors practicing in the National Health Service despite having AIDS. The information was acquired from hospital records and was supplied by employees of the 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 recognising 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. In People’s Union for Civil Liberties v. Union of India,9 the Supreme Court held that electoral candidates were under a duty to disclose information about their antecedents, including about their assets and liabilities, and could not be protected by any right to privacy when it came to disclosing information which the public had a right to know. Where there are competing interest the Tight to privacy of the individual and the right 10 cin ha eae the citizen, in the public interest, the former has to yield (0 ae iny event, the disclosures required to be made by an electoral Pertaining to assets and liabilities as also the criminal record afe a repre Be jong eae? he entity of the parties was’ concealed, a law journal which first the publication of an apology sug’ eames OF the partis, This was subsequently rectified by those concerned had alreade onto "ctfication of names. But the damage to the privacy 0 (2003) 1 SCC 500), the Supra” Gone: In a subsequent clarification, (Mr. ‘X’ v. Hospital 2 jodgment (supra note 36) opreme Court set aside some observations passed in the eatlit Xiolated by the disclosure of me eoting that the right of the HIV infected person was "Ot 38, (1988) 2 All ER 648, ical condition to His fancte's family. 39, (2003) 4 SCC 399. 40, Ibid,, para 121, p. 472.yr ? 125 The Right to Privacy |” infrii f the right | of public record and there was therefore no infringement of gl matters | toprivacy.*! i ether in the course | _ asta. te eae pac to a medical 2 nti rd whether such an examination was not an intrusion on tne cas privacy. The Court held that where divorce was being soug ron | indvda gas impoteney or schizophrenia, without a medical examinat | Frome impossible to conelude ifthe ground was justified. The Court | eld hat no specific right of privacy had been conferred under Article 2 | fi such a right could therefore not be an absolute one. Some limitations | could be imposed to protect the right of the spouse to seek a divorce on specific grounds. Thus, where there is a strong prima facie case, the Court could allow a medical test, and where such a case is made out but the concemed party refuses to undergo the test, an adverse inference may be drawn. The Court observed: ‘Mental health treatment involves disclosure of one’s most Private feelings. In sessions, therapists often encourage patients to identify “thoughts, fantasies, dreams, terrors, embarrassments and wishes.” To allow these private communications to be publicly disclosed abrogates the very fibre of an individual's right to privacy, the therapist-patient relationship and its rehabilitative goals, However, like any other privilege the psychotherapist- patient privilege is not absolute and may only be recognised if the benefit to society ‘outweigh the costs of keeping the information private.*# People's Union for Civil Liberties v. Union of India’s concerned a Constitutional challenge to the Prevention of Terrorism Act 2002 (POTA), inter alia, on the ground that Section 14 of the Act which mandates the Aisclosure of information to the police by ordinary people, is a violation of the right to Privacy. It was held that privacy is not an absolute right and is, in ‘Any event, subservient to the security of the State. Further, the concealment of such information could not be traced to the right to Privacy.46 Distt. Registrar and Collector y. Canara Bank” arose out of a challenge Pe Provisions of the Indian Stamp Act, 1899 as amended by the Andhra "desh Act, 17 of 1986, This amendment empowered the Collector to authorise « . : horise ‘any person’ to enter 'upon any premises to take notes or extracts «ares 36:39, 7, esttiom aise seg Ise . 602-03. Note however, that the POTA, 2002 has been repealed with 496, tember, 2004,126 Facets of Media Law from, seize or impound registers, books, records, papers, documents and Proceedings. A number of banks challenged this provision since documents, executed between private persons maintained by banks in the course of their Joan advancing transactions were inspected and banks were directed to remit the amount of deficit duty on the basis of those documents and to recover these amounts from the partics concerned. Recognising the importance of confidentiality in the relationship between a bank and its customer, the Coun held that the power to inspect documents in private custody was excessive, Besides the power which enables ‘any person’ not merely a public officer to enter upon and search the home of a person without establishing a reasonable or probable basis was violative of the right to privacy and hence liable to be struck down. Conclusion In an age of revolutionised communications and aggressive voyeurism, the individual's privacy is under siege. But the law makers in India have shown scarce concern on the issue. While in many other countries, there are now a variety of statutes in place‘ that seek to protect these rights, Indian laws on the subject lag far behind. Recent enactments do make some limited provision for the protection of the individual's privacy, but these are inadequate. For instance, the Information Technology Act, 2000? makes the disclosure of information contained in an electronic record, book or register etc. without the consent of the. person concerned a punishable offence. However, oddly there is no protection against obtaining illegal and unauthorised access to. such information. The recent Right to Information Act, 2005 exempts the disclosure of personal information which has no relation to any public activity or interest which would cause an unwarranted invasion of the privacy of the individual 5° In India, so far, the law on privacy has been relegated to a penumbral Status and it is time to give it the status of a well-defined, inviolable and enforceable legal right. ——___—____ 48. Such as the Privacy Act, 1988 (Commonwealth) and the Data Protection Act, 1988 in the UK. 49, The Information Technology Act, 2000, Section 72, 50. The Right to Information Act, 2005, Section 8(Liys-