Freedom of Press and Privacy – A Conflict of Rights?

by Ritika Sharma, University Institute of Legal Studies, Panjab University

Abstract

Media Activism is on its peak giving rise to obstacles in the path of ensuring privacy to several individuals. It is more disputable in the cases where press violates privacy rights of public figures as it is assumed that they voluntarily surrender their right to privacy by choosing their profession. Disclosing identities of the victims of sexual assault and influencing minds of the public in several cases via media trials are other privacy concerns. This blog aims at studying this conflict of rights where on one hand there is right to be informed of public/ right to free speech and expression of media and on the other hand, there is right to privacy of individuals who become the subject of public discussion.

Introduction

The role of the fourth pillar of democracy i.e., media, reflects the right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Indian Constitution. However, this right often comes in conflict with the right to privacy. After the Puttaswamy judgement[1], the Right to Privacy has achieved its place under Article 21 which reads as “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. Right to Privacy is an intrinsic part of everyone’s life. Nobody likes to share their private spheres with anyone but in today’s world, the installment of cameras at every nook and corner, presence of media photographers, etc., have made the lives of several people a public drama. The world of press and media has grown significantly which is acting as threat to the privacy of several individuals by interfering with their liberty to live life without inciting any public discussions. Even though the right to free speech and expression is not an absolute right and has exceptions such as restrictions in the cases of sovereignty and integrity, public order, decency, morality, etc., the privacy of an individual doesn’t have a place in these exceptions which has shifted the burden of measuring and upholding one of these two rights on the judiciary.

Competition and commercialization

The cut throat competition between media channels on television to show the news that have been covered are posing several challenges in ensuring right to privacy of several people. Liberation Front v. State of Andhra Pradesh[2] is an important case wherein a PIL was filed due to the violation of labour laws. The court in this case remarked about the degrading role of press and stated, “once an incident involving prominent person or institution takes place, the media is swinging into action and virtually leaving very little for the prosecution or the Courts to examine the matter. Recently, it has assumed dangerous proportions, to the extent of intruding into the very privacy of individuals. Gross misuse of technological advancements, and the unhealthy competition in the field of journalism resulted in obliteration of norms or commitment to the noble profession. The freedom of speech and expression which is the bed rock of journalism is subjected to gross misuse. It must not be forgotten that only those who maintain restraint can exercise rights and freedoms effectively”. Right to privacy has a direct connection with the dignity of an individual and media activism, and the process of commercialisation of news is infringing both these rights. Right to know is, undoubtedly significant in today’s era of globalization. Moreover, if the restrictions in the role of press of dissemination of information on public channels are defined then there will be no need to make such a choice between the two rights.

Privacy of public figures

The tragic death of Bollywood actor Sushant Singh Rajput had left everyone in awe but there were several public figures that faced severe breach of their privacy rights at the hands of media. They were targeted in public, grossly abused on social media and were disgustingly followed by television journalists. One individual who had to face the most gruesome consequences of media trail was the late actor’s girlfriend Rhea Chakraborty. The hungry media used to swarm around her whenever she left her place. Not only this, the family of late actor Sushant Singh Rajput was also time and again perturbed and exploited to cull out their views and details about the private life of the late actor. Similarly, many Bollywood stars or star kids and other public figures like Ratan Tata have faced such intrusions in their private lives due to television reporters who are ready with their cameras to pounce whenever they step out in public. The question arises that do the public figures give up their right to privacy when they become a “celebrity”? Does the public’s right to know supersede the right to privacy in case of “public figures”? 

In the case of R. Rajagopal and Another v. State of Tamil Nadu and Others[3], widely known as Auto Shankar case, it was held that media has the liberty to exercise their right to freedom of speech and expression in case of public figures. This is for the reason that public figures like public officials often play an influential role in ordering society. It has been held that as a class, the public figures have, as the public officials have, access to mass media communication both to influence the policy and to counter criticism of their views and activities. On this basis, it has been held that citizens have a legitimate and substantial interest in the conduct of such persons and that the freedom of press extends to engaging in uninhibited debate about the involvement of public figures in public issues and events.[4] Another important observation that was made in this case was with regard to publication. In case of publication which is on public records, the right to privacy cannot be granted to the subject as it becomes publicly open for the remarks from media and public. However, it was also held that no one has the right to publish anything without the consent of an individual “whether truthful or otherwise, whether laudatory or critical”.

The reasons that the borders protecting right to privacy of public figures look so fragile are threefold. The first is that they have sought fame and attention themselves, thus, having consented to it and have no right to be opposed to it. The second is that their business affairs and personal traits have become known to public, and can no longer be considered a part of their private life. The third is that the press has the freedom to inform the public about those who can serve as a legitimate interest to the public.[5] Certain guidelines ought to be considered in determining whether a report is newsworthy and thus constitutionally protected. Among the factors to be considered is the depth of the intrusion into the plaintiff’s private affairs, the extent to which the plaintiff voluntarily pushed himself into a position of public notoriety, the exact nature of the state’s interest in preventing the disclosure, and whether the information is a matter of public records. Additionally, one must look to any continued public interest in the event so that the passage of time does not per se extinguish the privilege of the publisher. If a report made reasonably contemporaneously with the incident would have been in the public interest, the weighing process continues in light of the circumstances prevailing at the time of publication.[6] The media should respect everyone’s privacy and the coverage of news should be in nexus with the individual’s interest in sharing their private lives.

Right of Press to report judicial proceedings

It is also common that the cases which are sub judice are being commented upon by the media. It is not surprising that these may influence or bend the mind of judges towards one perspective, thereby, violating the right to fair trial of the parties to the case. The worst consequence of this act is that sometimes it leads to disclosure of identity of those victims of sexual harassment or rape who did not want to be publicly identified as such. The Criminal Law Amendment of 1983 resulted in the introduction of certain guidelines, inter alia, regarding the proceedings of rape trial and banning the publication of victim’s identity. These were invented to protect the privacy of victims of these offences. However, the over enthusiastic media has failed to preserve the identity of rape victims in the cases such as in the TISS case and Arushi Murder case[7]. In Srichand P. Hinduja v. State through CBI,[8] the Court observed that. “the fairness of trial is of paramount importance as without such protection there would be trial by media which no civilised society can and should tolerate.  The functions of the court in the civilised society cannot be usurped by any other authority”.

The Supreme Court in Sahara India Real Estate Corporation v. SEBI,[9] speaking through a bench of five judges also held that right of the press to report judicial proceedings has to be balanced against the Article 21 right of a fair trial using a test of proportionality. In the backdrop of the Supreme Court’s recent affirmation of the right to privacy under Article 21, it will be interesting to see how the competing interests between free speech and privacy are balanced.[10]

Concluding Remarks

With the expansion of the world of media and competitions between media channels, there is a great need for regulations which could stop this rat race and intrusions in privacy of the public. In order to balance the rights of individuals, three moral principles which act as guidelines in disseminating news should be taken into consideration, firstly, promotion of decency and basic fairness as non- negotiable, secondly redemption of social value and thirdly, the dignity of individuals ought not to be maligned in the name of press privilege.[11] These factors should act as prerequisites to the spreading of news about any individual by the reporters.

Although, it seems that public figures surrender their right to privacy by choosing their profession, yet it is against moral principles and the Indian Constitution to invade into someone’s life so much that they become a part of public circus. Clear lines have to be drawn to protect the privacy and dignity of every individual and extending to public figures. It majorly depends upon the said person’s way of living life. Even after having granted the status of Fundamental Right to Right to Privacy, there are setbacks in ensuring this constitutional right which highlight the need to make robust privacy laws.

Disclaimer – All views and opinions expressed in this article are personal and belong solely to the author(s) and do not necessarily represent those of the LAABh Foundation or the individuals and institutions associated with LAABh Foundation.


[1] Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

[2] 2005 (1) ALT 740.

[3] 1994 SCC (6) 632.

[4] R. Rajagopal and Another v. State of Tamil Nadu and Others, 1994 SCC (6) 632.

[5] Leena Soovali, The Right to Privacy of Public Figures and Public Officials: Evaluation of who deserves different standards of Privacy, TALINN 21 (2018), https://digikogu.taltech.ee/en/Download/78985050-a5df-4618-8976-c5405e841915 .

[6] Ketan Mukhija, Media’s Attitude Towards Privacy- Whether Perverse or not? MANUPATRA (August 22, 2021; 11: 00 AM), https://0310308ri-y-https-www-manupatrafast-com.slimkm.org:9443/pers/Personalized.aspx

[7] Dr. Rajesh Talwar and Another v. Ventral Bureau of Investigation, 2013 (82) ACC 303.

[8] 112 (2004) DLT 109.

[9] CIVIL APPEAL NO. 9813 OF 2011.

[10] BAR AND BENCH, https://www.barandbench.com/columns/privacy-public-figures-free-speech (Last visited August 22, 2021).

[11] Ketan Mukhija,  Supra note 6.

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