MEDIA LAW ON FREEDOM EXPRESSION

AND PROTECTION OF RIGHT TO PRIVACY

Introduction

The development in Science and Technology had revolutionised

the field of communication. The Media proliferation which had
witnessed unprecedented growth in recent decades and the
phenomenal growth in this field called for Legislative enactments
and statutory regulation besides judicial caution in the larger
public interest and in the interest of safeguarding the invaluable
Right to Privacy of individuals. The nature of such an exercise
involves balancing of various interests. The intricate issues
involved in this regard are highlighted in this presentation.

Freedom of Speech and Expression

Speech is a privilege unique to human beings. Freedom of Speech

and Expression was recognised as an inalienable right of
humanity in various democratic countries of the world. Whether
it is the Magna Carta of Human Rights or the First Amendment of
the American Constitution or Universal Declaration of Human
Rights or Article 19(1)(a) of the Constitution of India, freedom of
Speech and Expression was treated as a guaranteed right to
humanity.

Speeches which changed the course of History

Speech and Expression emerged as a powerful medium of

communication gained importance over the years. The speeches
of Voltaire and Rousseau, Gettysburg speech of Abraham Lincoln
and War Speeches of Winston Churchill had changed the course
of history and left an indelible impression in the sands of time.

Impact of Media

With the advent of print media, books, journals and newspapers

became powerful media of communication. The New Testament,
The Quran and The Bhagavad Gita published in printed form
influenced the Religious faith and practice of people. These
religious texts and scriptures moulded the behaviour, character
and religious habits thereby impacting their private life.

Digital World

With the rapid strides in Science and Technology Radio, Cinema,

Television, Computer, Mobile phones coupled with internet
facilities and the rapid increase in social networking apps like
Whatsapp, Twitter, Facebook and host of other like facilities have
added to the ever increasing list of Media of communication and
assumed unforeseen proportion.

Right to Freedom of Speech and Expression

Right to freedom of speech and expression is an interpersonal

right. It is available to a person as a member of the society to be
used with social obligation, conscious of the reciprocal rights
available to others. Hence it is subject to reasonable restrictions
in the interests of sovereignty and integrity of India, security of
the State, friendly relations with foreign states, public order
decency or morality or in relation to contempt of court,
defamation or incitement of an offence. Freedom of Press and
other Media also stands on the same footing.
Right to Privacy

Right to privacy, right to live with human dignity, reputation and

with all other attendant rights as a member of society are
paramount human rights and are an integral part of Right to Life.
The right to privacy as an independent and distinctive concept
originated in the field of Tort law, under which a new cause of
action for damages resulting from unlawful invasion of privacy
was recognised. This right is said to have two aspects; the general
law of privacy which affords a tort action for damages resulting
from an unlawful invasion of privacy and the constitutional
recognition given to the right to privacy which protects personal
privacy against unlawful governmental invasion. The first aspect
of this right must be said to have been violated where, for
example, a person's name is used, without his consent, for
advertising or non-advertising purposes or his life story is written
whether and published without his consent.

Magna Carta

Magna Carta of the year 1215 which is the first charter on

Human Rights assured right to privacy and access to justice and
fair trial in the case of infringement in the following words:-

No free man shall be seized or imprisoned, or stripped of his

rights or possessions, or outlawed or exiled, or deprived of his
standing in any other way, nor will we proceed with force against
him, or send others to do so, except by the lawful judgement of
his equals or by the law of the land.
Universal Declaration of Human Rights 1948

Right to Privacy is protected by Universal Declaration of Human

Rights 1948. Article 12 states,

“No one shall be subjected to arbitrary interference with his

privacy, family, home or correspondence, nor to attacks upon his
honour and reputation. Everyone has the right to the protection
of the law against such interference or attacks.”

Right to Privacy in the United States of America

In the United States as per the first Amendment to the

Constitution of United States of America, the right to privacy
often means the right to personal autonomy, or the right to
choose whether or not to engage in certain acts or have certain
experiences. Right against unreasonable searches and protection
against self-incrimination, which in turn protects the privacy of
personal information are all integral aspects of right to privacy.
The Constitution of the United States recognises the above rights
as right as an aspect of Right to Privacy.

In the case of Griswold v. Connecticut a ban on the use of

contraceptives was struck down as opposed to right to privacy by
the Supreme Court of United States

In Stanley v. Georgia American Court ruled that the right to

privacy protected a person's right to possess and view
pornography in his own home. Justice Thurgood Marshall
observed , "If the First Amendment means anything, it means
that a State has no business telling a man, sitting alone in his
own house, what books he may read or what films he may
watch."

The American court, in Lawrence v. Texas, overturned an earlier

ruling and found that Texas had violated the rights of two gay
men when it enforced a law prohibiting sodomy. Justice Anthony
Kennedy wrote, "The petitioners are entitled to respect for their
private lives. The State cannot demean their existence or control
their destiny by making their private sexual conduct a crime.
Their right to liberty under the Due Process Clause gives them
the full right to engage in their conduct without intervention of
the government."

In USA, The Privacy Act of 1974 prevents unauthorized

disclosure of personal information held by the federal
government. A person has the right to review their own personal
information, ask for corrections and be informed of any
disclosures.

The European Convention on Human Rights 1953

As per the European Convention on Human Rights, everyone has

the right to respect for his private and family life, his home and
his correspondence and there shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the
rights and freedoms of others.
Right to Privacy of Internet users

Internet users can protect their privacy by taking actions that

prevent the collection of information. Most people who use the
Internet are familiar with tracking cookies. These small stores of
data keep a log of your online activities and reports back to the
tracker host. The information is usually for marketing purposes.
To many Internet users, this is an invasion of privacy.

Social Networking

Browsers and social media platforms, such as Facebook and

Twitter, allow users to choose levels of privacy settings, from
share everything to share only with friends to share only the
minimum, such as your name, gender and profile picture.
Protecting personally identifiable information is important for
preventing identity theft.

Just as a person has the right to keep personal information

private, he or she also has the right to control the use of his or
her identity for commercial promotion. Unauthorized use of one's
name or likeness is recognized as an invasion of privacy.

Right to Privacy in India

Right to Privacy is not specifically enumerated as a fundamental

right in the Indian Constitution. The same has to be inferred
from Article 19 which enumerates important fundamental rights
and Article 21 which guarantees Right to Life which has been
judicially interpreted to include right to privacy. Right to live with
dignity and reputation and the Recognition of the right to
marriage between persons belonging to the same sex are
considered as an aspect of right to privacy and to lead a private
life of one’s own choice.

Right to take legal action for libel, slander, defamation etc. are
aimed at protecting the Right to Privacy of persons and they are
made actionable both under the Law of Torts and under the
Indian Penal Code1861.

Right to profess, practise or propagate a religion, belief or faith of

one’s own choice is a constitutional guarantee in India and is
very much an aspect of right to privacy.

Freedom of Expression vs. Right to Privacy

The freedom of expression of the Press vis a vis the Right to

Privacy was analysed and the law in this regard was laid down in
a locus classicus by the Supreme Court in Rajagopal vs. State of
Tamil Nadu 1994 6 SCC 632 as follows:-

“ The right to privacy is implicit in the right to life and liberty

guaranteed to the citizens of this country by Article 21. It is
a"right to be let alone". A citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation,
motherhood, child-bearing and education among other
matters. None can publish anything concerning the above
matters without his consent whether truthful or otherwise and
whether laudatory or critical. If he does so, he would be violating
the right to privacy of the person concerned and would be liable
in an action for damages. Position may, however, be different, if a
person voluntarily thrusts himself into controversy or voluntarily
invites or raises a controversy.
The rule aforesaid is subject to the exception, that any
publication concerning the aforesaid aspects becomes
unobjectionable if such publication is based upon public
records including court records. This is for the reason that
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 press and media among others. However, a female
who is the victim of a sexual assault, kidnap, abduction or a like
offence should not further be subjected to the indignity of her
name and the incident being publicised in press or media”.

The following Acts have regulated the Media not only with regard
to Right to Privacy but also in connection with the various
fundamental rights available to the citizens of India.

1.Press and Registration of Books Act 1867

This Act provides that all the books or periodicals that are
printed in India shall be printed clearly and legibly and contain
details of the printer and publisher, place at which the book is
printed and the place where the book is published. A newspaper
shall be published and circulated in India only according to the
regulatory rules prescribed under the Act. The newspaper shall
consist of the name of the proprietor as well as the editor and the
printer and the person publishing the newspaper shall present a
duplicate declaration as per the prescribed rules. The declaration
shall indicate the title and language of the newspaper, periodicity
and such other details necessitated by the Act and subject to the
control and Regulation of Press Council of India.
Cinematograph Act 1952

This Act made provision for the certification of cinematograph

films for exhibition and for regulating exhibitions by means of
cinematographs. As per this Act If any person exhibits or permits
to be exhibited in any place any film other than a film which has
been certified by the Board as suitable for unrestricted public
exhibition or for public exhibition restricted to adults or to
members of any profession or any class of persons he shall be
punishable with imprisonment for a term which may extend to
three years, or with fine which may extend to one lakh rupees.

Press Council Act 1978

Under this the Press Council of India was established with a view
to preserve the freedom of the Press and to maintain and improve
the standards of newspapers and news agencies in India, to help
newspapers and news agencies to maintain their independence,
to build up a code of conduct for newspapers, news agencies and
journalists in accordance with high professional standards, to
ensure on the part of newspapers, news agencies and journalists,
the maintenance of high standards of public taste and foster a
due sense of both the rights and responsibilities of citizenship, to
encourage the growth of a sense of responsibility and public
service among all those engaged in the profession of journalism
etc.

Similarly the Cable Television Networks Regulation Act

1995,Information Technology Act 2005, Right to Information Act
2007 are other enactment which constitutes the media law for
the purpose of ensuring that they do not cross the constitutional
boundaries set for protecting the Right to Privacy.

Information Technology Act 2005 aims at regulating internet

users and social networking apps and any delinquency may be
visited with blocking the site after following the prescribed
procedure.

The Right to Information Act enumerates matters to which regard

to which no information can be sought in matters pertaining to
military, defence, internal security, national security and all
other matters connected with these classification and matters
which are not in public domain or handled by public authority.

Thus an analysis of the law would clearly reveal that Right to

Privacy is a paramount right and as precious as the Right to Life
itself since Life without privacy would be opposed humanity and
becomes a meaningless existence. But there is a caveat. When
one enters Public Life right to privacy is subjugated to larger
interest of the community. Public personalities have to
necessarily subject themselves to scrutiny sometimes even in
respect of their private life as the people have a right to the
persons whom they elect to office or accept as their leader and
allow them to head the Government on their behalf. Too much
exposure of private life militates against cultured behaviour and
cuts at the very root of Civilised Society. It is right time that
Media realises this salutary principle as the Media Barons also
have a private life which is best kept away from the glare of
Public Eye. Thank you