Is Srikrishna Privileging Privacy Over Free Speech?
"Will journalism of the kind that published the Radia tapes, involving private conversations between private individuals, be precluded by a possible data protection law?"
December 5, 2017
The government’s expert committee on a data protection framework for India, headed by retired Mr. Justice B.N. Srikrishna recently released a 243 pages report soliciting comments on more than 200 questions. While the nation debates on data protection and privacy, the focus has been exclusively on Aadhaar and the internet industry. Little attention has been paid to the implications of a data protection law or privacy on the fundamental right to free speech under Article 19(1)(a) of the Constitution. The judgment of the nine-judge bench of the Supreme Court in the Puttaswamy case which clarified that privacy was indeed a fundamental right did touch on the interaction between right to privacy and right to free speech, as explained over here earlier.
To its credit, the white paper discusses the implications and the possibility of creating a limited exception for journalistic activities but I must object to the terminology used by the committee. By calling for an “exception” to the proposed law, for journalistic purposes, the committee appears to be privileging the fundamental right to privacy over the fundamental right to free speech. The government should not be giving the impression that the fundamental right to free speech under Article 19(1)(a) is now going to be an exception to the fundamental right to privacy under Article 21. Rather it should be looking at balancing both rights.
"The committee appears to be privileging the fundamental right to privacy over the fundamental right to free speech"
Also, the general approach of the committee, regarding the nature of the exception that it is seeking to create is also problematic.
The challenge in balancing privacy and free speech in India and the UK
Before discussing the white paper’s proposal, it may help to first recount the manner in which privacy has tripped reporting on the lives of the powerful in India and other countries.
In one of the first cases where the Supreme Court declared privacy to be a fundamental right in 1994, in the case of Rajagopal v. Tamil Nadu, the court was quite clear that public officials holding public office could not claim a fundamental right to privacy for acts related to their office. However, the ensuing litigation involving unauthorized biographies or biopics of public personalities has thrown up mixed results. While Jayalalitha managed to secure an interim injunction against an unauthorized biography published by Penguin, Maneka Gandhi failed to secure an interim injunction against Khuswant Singh, restraining him from publishing a book which contained some remarks that Indira Gandhi had purportedly made against Maneka Gandhi in private. Similarly, Veerappan’s wife used the Rajagopal judgment as leverage to force a producer to edit out certain scenes in an unauthorized biopic of the brigand. None of these decisions are particularly well-reasoned but they do raise a red flag for journalists because privacy is now the new threat to their right to report.
English courts have run into similar rough weather and the English press had been quite uncomfortable with the outcome of some of these cases. One such case in particular, involved the super model Naomi Campbell. She had been photographed leaving a drug deaddiction centre and the Mirror had published the photograph along with a story about her drug problem and her efforts at kicking the habit. The Mirror was found to have breached her privacy by publishing such information. The two issues which seemed to have contributed to the court’s decision was the publication of a photograph of Campbell leaving the centre, along with details of her treatment. The court also created a framework to balance the right to free speech and privacy by creating different categories of free speech (political speech, artistic speech and commercial speech) and giving each category different weightage while balancing privacy rights. To boot, the judgment was not unanimous – it was split 3:2.
The white paper’s proposal
The white paper recognizes the need to create an exception in any possible data protection law for journalistic purposes but seems to make contradictory statements. At one point, it argues for a definition of ‘journalistic purpose’ and ‘journalist’ but expresses a worry that such an approach may not work and speculates whether a necessity-based approach would result in a better balance. I extract the relevant paragraphs below:
This exemption seeks to strike a balance between an individual‘s right to privacy and the right to free speech and expression. For instance, newspapers routinely publish personal data of public figures or other individuals while reporting. However, the terms journalistic purposes‘ and journalist‘ are not defined in law currently. These terms need to be defined to ensure clarity in the scope of application. In some instances, non-media organisations which publish information for mass coverage may be covered as also bloggers and others who generate content online.
As this exemption seeks to fulfill the right to free speech and expression several jurisdictions provide a wide exemption in this category. However, in the absence of a clear articulation of what these activities might be, or how terms such as journalist‘, journalistic‘, artistic‘, literary‘ are commonly understood, the provision may be misused. The way forward may be to identify only those activities in this category where the necessity or purpose of the activity and the corresponding right to free speech and expression outweighs the right to privacy of the data subject.
The disappointing aspect of the whitepaper’s approach is that it completely omits any theoretical analysis regarding the balancing of two fundamental rights – the first being the fundamental right to free speech under Article 19(1)(a) and the second being the fundamental right to privacy under Article 21 of the Constitution. Such an analysis is a necessary precursor to any substantial discussion on balancing the competing rights and it is necessary that the committee provide us with its theoretical understanding of such rights in context of existing jurisprudence of the Supreme Court.
"The white paper recognizes the need to create an exception in any possible data protection law for journalistic purposes but seems to make contradictory statements"
The other problem with the white paper’s approach is its intention to define categories where privacy trumps the right to free speech. Do we really want Parliament to be defining these categories because the problem with creating categories is that they can be under-inclusive? The alternative is to have a general omnibus clause allowing journalists to report on anything that is in public interest and in cases of a dispute the final call lies with a judge. The problem with this approach is that it may have a chilling effect on reporting because there were will be cases where it is impossible to predict a judicial outcome.
At any rate, journalists need to take up this issue in earnest and ensure their right to report under Article 19(1)(a) is protected.
A few issues which they should seeks clarity on are as follows:
(i) Can the fundamental right to privacy be enforced by private individuals against the press or can the fundamental right to privacy be enforced only against the State?
"Will sting journalism be allowed under a possible data protection law?"
(ii) The Rajagopal case states that “In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties.” Does the definition of “public official” include “public figures” not holding “public office” and if so, how will the committee define “public figures”?
(iii) Will journalism such as the type that published the Radia tapes, several of which involved private conversations between private individuals (on issues that may not qualify as corruption but certainly included impropriety), be precluded by a possible data protection law?
(iv) Will sting journalism be allowed under a possible data protection law?
(v) What will be the nature of remedies in case of breach of privacy? Will it be limited to damages or can a court of law also pass injunctions restraining speech before it takes place? Or will it extend to criminal remedies that include imprisonment?
(vi) Will a possible data protection law have a chilling effect on reporting?
First published in The Hoot.
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