Times Face-off: Should an individual’s right to privacy prevail over press freedom? | India News

The Shilpa Shetty case has again raised an important question: Should an individual’s right to privacy prevail over press freedom?
For: Jahnavi Sindhu
Defamation is used to stifle press but solution can’t be to ignore privacy
Shilpa Shetty’s recent defamation suit joins a growing list of cases where press freedom and privacy have locked horns owing to sensationalist reporting amid a criminal investigation. Justice Gautam Patel’s careful approach in this case, where he directed the removal of videos that dealt with inherently personal aspects of Shetty’s life, demonstrates why in certain situations privacy must trump press freedom.

This anecdotal argument, however, is flawed because it disregards the autonomy that people enjoy while disclosing some or all parts of their lives to persons they have just met. The right to privacy protects precisely this—the right to choose how and when to part with our personal information.
In 2017, a nine-judge bench of the Supreme Court in Puttaswamy settled the status of privacy as a fundamental right. The SC reasoned that privacy was essential to realise the right to lead a dignified life including the right to fully develop one’s personality and exercise freedom of thought, both of which require “autonomy over personal choices and control over dissemination of personal information.”
While the SC in Puttaswamy was primarily concerned with government invasion of privacy, the reasoning in the case provides guidance for private litigations, where press freedom and privacy clash. The SC held that persons have a reasonable expectation of privacy, that certain matters would remain private and that persons are afforded a “zone of privacy” where they are free from public scrutiny and judgment.
Indeed, a celebrity may not have the same expectation of privacy as other individuals, but her public persona and the consequent interest in her private life cannot obliterate this expectation altogether. The Court’s observation to this effect in Shetty’s case is an important step forward in Indian privacy jurisprudence.
While seeking to balance privacy and press freedom, it is important to consider the rationale behind press freedom. As the SC explained in The Indian Express case (1985), press freedom exists for the benefit of citizens in a democracy and its purpose “is to advance the public interest by publishing facts and opinions” from a diverse set of sources “without which a democratic electorate cannot make responsible judgments.”
Even in a defamation suit, a claim of press freedom will succeed over privacy if there is public interest in the information. Lady Hale, in a House of Lords decision, pointed out that this is “different from saying that it is information which interests the public—the most vapid tittle-tattle about the activities of footballers’ wives and girlfriends interests large sections of the public but no one could claim any real public interest in our being told all about it.” English courts have often had to hash out this distinction. The Court awarded damages to Naomi Campbell for revealing details of her treatment for drug addiction as well as photos of her coming out of the centre. Recently Meghan Markle won a privacy claim against a newspaper which published a letter she wrote to her father on the ground that she had a reasonable expectation that the letter would not be disclosed.
Similarly, in Shetty’s case, the court took issue with the reports regarding her parenting but did not prevent the publication of reports relating to the criminal investigation against her husband. While the net of public interest is cast far and wide, the recent practice of news channels disclosing WhatsApp chats of public figures and activists, regarding issues of mental health and private conversations with friends, is unlikely to satisfy the threshold. Recently, the SC has also cautioned against the practice of ‘selective’ or incomplete leaks to the media during criminal investigations.
It is true that defamation suits are often used by those with influence to stifle the media. The solution is not to ignore the right of privacy altogether but to prevent misuse through strong judicial oversight and safeguards provided within defamation law. In Shetty’s case, the court achieved this balance by noting that any exceptions to free speech ought to be narrowly tailored, that each defendant be considered individually and that the order should not be construed as a gag order on the press. Moreover, swift judicial oversight often results in the media self-regulating and taking down content that does not meet the public interest threshold, as it did in Shetty’s case. For the right to privacy to be taken seriously, it is imperative that the same standard is applied by the judiciary to similar cases brought by ordinary individuals, and not just celebrities.
(The writer is an advocate specialising in constitutional law)
Against: Sevanti Ninan
Media has the right to report, and the public has a larger right to know
The right to the privacy of individuals currently has greater protection in this country than press freedom. The Constitution guarantees the right to privacy, and the Puttaswamy judgment (Justice K S Puttaswamy vs Union of India) of 2017 interpreted it as a fundamental right. Press freedom, however, is neither guaranteed nor is it a fundamental right. It is a part of the right to free speech and expression in the Constitution, hemmed in by reasonable restrictions. It is worth noting however that privacy is not one of the seven grounds mentioned for imposing reasonable restrictions.
The right to report is partly about seeking accountability which is the media’s job, and partly about the public’s larger right to know.

Even without a privacy law, a body of judgments has been building up over the years, in which the courts at various times have defined privacy in a manner that allows public persons to be scrutinised more closely.
A significant 1994 judgment, R Rajagopal vs State of Tamil Nadu, dealing with the freedom of the press vs the right to privacy did three things. It defined privacy thus: “A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters.” It denied the protection of privacy to public officials asserting a right to privacy for their official duties, and it also upheld the right of the press to publish such material as appears in the public records.
In this colourful case, the editors of a magazine Nakkheeran sought to restrain the state of Tamil Nadu from blocking publication of the autobiography of a condemned prisoner, Auto Shankar, in their magazine. He was on death row for six murders. The manuscript detailed the nexus between the prisoner and government officials in several crimes, with a video cassette and incriminating photographs available as evidence. The prisoner was then pressured by the state government to withdraw permission for publication, and deny having written the book.
Because of the reference to publishing material from public records, this judgment was also used in later cases to deny publication access to material not on public record such as personal interviews in the biographies of Phoolan Devi, Jayalalithaa and Veerappan.
The privacy vs press freedom argument is a layered one. In practice, the bar for privacy is higher for private individuals including children. There is the notion of a “public person,” which both the Indian courts and the Press Council of India’s norms of journalistic conduct, recognise. Information sought under the RTI act by journalists or citizens would be treated differently in the case of public persons, the SC has held in ‘CPIO, Supreme Court of India vs Subhash Chandra Agarwal’.
The right to privacy was also tested by the publication of the Radia Tapes, based on telephone tapping authorised by the income-tax department. But few would argue that the revelations which emerged did not serve public interest in terms of the nexuses revealed.
The most recent attempt to balance the public’s right to know with the individual’s right to privacy is to be found in the order of the Bombay High Court in the Shilpa Shetty case. The actor was seeking restraint on media reporting following the arrest of her businessman husband in a pornography case. The single-judge bench declined to issue a blanket gag order but ordered takedowns of some defamatory videos.
It noted that Shetty’s prayer would have a chilling effect on the freedom of press. She was also told that the media could not be restrained from carrying reports about her since she had chosen a public life that put her under the microscope. On privacy, the order said that the right to report does not override the right to privacy, noting that “just because Shilpa Shetty is a public figure, it doesn’t mean that she has sacrificed her right to privacy guaranteed under the Constitution.”
Meanwhile, a Personal Data Protection Bill is currently awaiting passage. It has a right to be forgotten clause to protect government officials from use of past data concerning them. Overall this bill could present fresh challenges to reporting if passed.
(The writer is a media columnist and commentator)

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