Some Indian statutes implicitly recognize privacy rights or rights similar to privacy. In cases where the conduct of a media communicator amounts to a crime under any of the laws below; a person whose privacy has been invaded initiate criminal proceedings by lodging a complaint with the police.
Anti-voyeurism law:
After the 2013 amendment of India’s criminal law, it is a crime for a man to “watch” or “capture the image” of a “woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator”. It is also a crime to disseminate such an image.
Anti-stalking law:
It is also a crime for a man to commit any of the following acts if they result in a fear of violence or serious alarm or distress in the mind of the concerned woman or interferes with her mental peace:
- Follow her and contact her or attempt to contact her and foster personal interaction with her despite her clear indication of disinterest,
- Monitor her use of the Internet or any form of electronic communication, or
- Watch or spy on her in any manner.
Illustration:
Kristof is a journalist who tracks the television industry for several newspapers. Meena is a popular actor in television soap operas. With the help of his friend Prashant, the journalist gains access to Meena’s personal email account and reads her emails to a prominent politician. These facts contain all the ingredients of an offence under the anti-stalking law. Krist of has monitored Meena’s use of electronic communication and that has interfered with her mental peace. Meena can complain to the police, who can then make an investigation to determine whether charges need to be framed against Kristof.
Interception of communication:
Separate laws permit the state to intercept different types of communication and provide procedural safeguards to protect their privacy. These include Section 5(2) of the Indian Telegraph Act, 1885, Section 26 of theIndian Post Office Act, 1898, and Section 69 of the Information Technology Act, 2000.
Safeguarding the identity of children:
Under Section 21 of the Juvenile Justice (Care and Protection of Children) Act, 2000; it is a crime if a report in the media about an inquiry conducted under that law regarding a ‘juvenile in conflict with the law” discloses the name, address, school, or any particulars that may lead to the identification of that juvenile.
Safeguarding the identity of rape victims:
Under Section 228A of the Indian Penal Code, 1860, it is a crime to print or publish the name or any other particular that makes it possible to identify a victim of rape. An allegation of rape is enough to make this provision operational. Self-regulatory norms regarding privacy Apart from these laws, media communicators also need to be aware of the guidelines and norms, which have significantly lower weight, that form part of the media’s self-regulatory architecture.
The Press Council of India (“Press Council”) and the News Broadcasters Association are part of the self-regulatory architecture of the media. The law has setup former under a statute and conduct inquiries into the complaints it receives against the press. The Press Council, however, does not have the power to impose any penalties on errant newspapers and editors. Moral authority alone supports its regulatory work. The News Broadcasters Association, on the other hand, is a private body that represents the private news and current affairs broadcasters (“TV channels”) of India.
Law should not invade Right to privacy unless outweighed by genuine public interest. Under the Press Council’s Principles and Ethics now ms (“norms”) which is part of its Norms of Journalistic Conduct; “The Press shall not intrude or invade the privacy of an individual, unless outweighed by genuine overriding public interest, not being a prurient or morbid curiosity”. These norm explicitly include the
Following aspects of a person’s life within the meaning of “privacy”:
- Home,
- Family, c. Religion,
- Health,
- Sexuality,
- Personal Life, and
- Private affairs.
The news Broadcasters Association’s Code of Ethics and Broadcasting Standards (“Code of Ethics”) also warns TV channels against invading private lives unless there is a “clearly established larger and identifiable public interest”.
Public record exception:
The norms also carve out a large exception: “Once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by the Press and the media.”
Public figures:
The norms recognise that public figures cannot be afforded the same degree of privacy as a private person. However, the norms specifically affix a degree of responsibility on the press as it reports the conduct of public figures. The Press has to use fair means for collecting the material and should only report it if it is acuurate.
Minors:
under the norms, “the family of public figures are not valid journalistic subject”, especially so if the report covers minors. The Code of Ethics requires that if any broadcast intrudes on the privacy of minors, the channel should attempt; where possible, to seek the consent of the parents or legal guardian.
Investigation journalism:
The norms also speak of the responsibilities of the media; as it covers public figures using the method of investigative journalism. The people should not invade privacy of a public figure; if there is “clear evidence that the wrong doings in question have a reasonable nexus; with the misuse of his public position or power and has an adverse impact on public interest.”
Sting operations:
A ‘sting operation’ is a method that reporters use, typically involving a deceptive scenario and the use of hidden cameras and microphones; to capture as an audio or a video recording, the conduct of a public figure. It necessarily requires media communicators to invade the privacy of a person. The norms require that the editor who has made a decision to report a sting operation should be satisfied about the public interest of the matter. They also require the reporter who has captured the recording to certify the genuineness of the operation. However, the norms applicable to sting operations will apply along with the norms applicable to reporting about public figures. The Code of Ethics says that one should use sting operations as a last resort.
Photographs:
Once again, the norms warn against invading anyone’s privacy unless it is outweighed by “genuine overriding public interest”. However, it is to be understood that neither the courts nor the legislature has drawn a clear line to indicate what kind of conduct would amount to an invasion of privacy. At the same time,the media’s self-regulatory architecture exhorts media communicators to weight the public interest in the communication against the invasion of the right to privacy. Clearly, there will be situation where a media communicator’s conduct might not attract damages but will still earn the displeasure of the self-regulatory bodies.