The right to privacy will impact journalism
RAMIFICATIONS OF A POTENTIAL DATA PROTECTION OR PRIVACY LAW FOR JOURNALISTS
Submission to the Committee of Experts under the Chairmanship of Justice B N Srikrishna
As an organization that is interested in protecting journalistic freedom and society’s right to be informed of the truth, we are extremely concerned about the ramifications of a potential data protection or privacy law that penalizes the media for reporting on certain information. Unlike the law of defamation, where the bright lines regarding truthfulness are quite clear to journalists, data protection and privacy are relatively fuzzy concepts that do not lend themselves to precise legal definition. We therefore shudder to think of the potential abuse of a possible data protection or privacy law, to stop reporting of what is essentially the truth. If this description appears to be an over-exaggeration, we need only look so far as the United Kingdom and United States to observe the effects of privacy on free speech.
In this submission we will briefly outline the impact of privacy-related litigation on the media in the UK and the US followed by our critique of the White Paper and concluding with our demand for a second committee to be set up to study the impacts of privacy on journalism provided that the committee has representation from the journalistic community.
I. The implications of privacy-related litigation faced by journalists in both the UK and the US
Privacy-related litigation is a relatively recent development in the UK. Traditionally, English courts did not recognize a right to privacy. At most celebrities or public personalities could try to sue for ‘breach of confidence’ under the law of equity i.e. if information was provided in confidence to a certain person who then violated such confidence, they could be held liable under the law. A good example of such an action is the case of Douglas v. Hello! Ltd. where Michael Douglas and Catherine Zeta Jones had assigned the exclusive rights over their wedding photographs to OK! and in order to protect such exclusivity, the couple had required all guests and staff to surrender any cameras and agree to not take photographs of the wedding. Nevertheless, one of the guests took photographs and sold the same to another tabloid called Hello! which then published the photographs. The House of Lords in 2007 had held that Hello! was liable for breach of confidence and was required to pay substantial damages.
A lot has happened since the Douglas case because more celebrities and public personalities have started to deploy the much stronger privacy rights under the Human Rights Act, 1998 which recognized a right to privacy and the Data Protection Act, 1998 which lays down the law to collect, process and store data.
The right to privacy is much broader than the duty of confidence under equity because privacy is based on the premise that it is required to protect the dignity and autonomy of individual. The broadening of the philosophical underpinning of such rights can have wide-ranging implications for journalism. A case in point is the lawsuit filed by Naomi Campbell, a supermodel, against the British tabloid, the Mirror, for publishing an article and photograph about Ms. Campbell’s drug addiction problem.
The article in question, reported that Ms. Campbell had a drug addiction problem, that she was seeking treatment at a de-addiction centre, provided details of her treatment and published a photograph of her outside the de-addiction center (the photo was in a public place). The tabloid was found to have violated her privacy, not because it disclosed her drug problem but because it disclosed the details of her treatment and published a photograph of her outside the rehabilitation center. The recognition of a privacy right in a photograph taken on a public street is a rare occurrence but is a demonstration of the width of the privacy right aimed at protecting the dignity and autonomy of the individual.
The Campbell decision was widely criticized by the British press. It was a precursor for a litany of lawsuits by celebrities, politicians and others who used similar legal tactics to gag the press against reporting on truthful details about their lives. Not all these litigants were as successful as Ms. Campbell. In Spelman v. Express Newspapers Ltd. the son of a politician, who was also an athlete, sought an injunction against the Daily Star restraining it from publishing news about his drug problem but the court declined to oblige. In Ferdinand v. MGN, a footballer had sued a paper for violating his privacy by writing about his extra-marital affairs but failed to convince the court. In Steve McClaren v. News Group Newspapers Ltd, a professional football manager had sought to restrain the Sun from publishing about his affair outside of his marriage but once again failed. In David. Murray v. Express Newspapers and Michael Douglas et. al. v. Hello, celebrities sued over the publication of photographs of private events.
In several of these cases, the courts actually denied injunctions or damages after carrying out a balancing exercise between the right to free speech and privacy. However, a strong privacy right coupled with a data protection legislation opened the door for the institution of lawsuits which would then subsequently lead to further complications such as gag orders for the duration of the litigation or super-injunctions whereby newspapers could not even publish the fact that such litigation took place in court. Even where the media were allowed to report on the existence of a case, English courts have institutionalized a system of anonymizing the orders of the court i.e. the names of the litigants or any personally identifying information cannot be made public. In most cases, the final decisions of English judges would require balancing the rights of the press against the value of the personal information and its possible contribution to public debate.
Given the secretive nature of the proceedings and the scope of the privacy rights, the law in the UK now vests enormous powers in the hands of the judges.
This constant tension between privacy and free speech in the UK has been at the center of much controversy and discussion with parliamentary committees being constituted to debate and submit reports on topics such as “Super-Injunctions, Anonymized Injunctions and Open Justice” and on “Privacy and Injunctions”.
Similar to the UK, the US too has seen instances of privacy-related litigation hitting journalistic outfits. The chief example here is the case filed by Hulk Hogan against Gawker, for publishing a sex tape featuring him. The resulting jury verdict required the publication to pay out damages of $141 million dollars. That led to the bankruptcy and subsequent sale of Gawker. The lawsuit was premised on a breach of privacy under state law and not federal law. Various states in the US recognize a right to privacy under their state constitutions and there are also several state legislations which protect privacy in many different ways by prohibiting specific acts. Most will however have some kind of exception carved out for information deemed newsworthy. Peter Thiel, who funded Hulk Hogan’s lawsuit against Gawker is lobbying for stronger privacy laws at the federal level and it is very likely that America will enact such laws in the future.
II. The Committee needs to clarify the basis of a right to privacy that can be enforced against the media and its implication for the right to free speech
One of our primary objections with the White Paper on data protection is that a mere 1 page of the 243 pages covers the possibility of providing a vaguely defined exception for “journalistic, artistic, literary purposes”. Even this 1 page does not discuss basic conceptual issues on the question of privacy. For example, the Committee should have clarified whether privacy is a fundamental right that can be enforced only against the state or even against other citizens. As the committee must be aware, fundamental rights in India are typically enforced only against the state and never against fellow citizens. The Supreme Court judgment in Puttuswamy v. Union of India is not clear on this point since contradictory statements have been made by some of the judges. Justice S.A. Bobde for example states the following:
“Where the interference with a recognized interest is by the state or any other like entity recognized by Article 12, a claim for the violation of a fundamental right would lie. Where the author of an identical interference is a non-state actor, an action at common law would lie in an ordinary court.”
On the other hand, Justice S.K. Kaul articulates the right as one that can be enforced against fellow citizens and not just the states. He says in relevant part:
“The right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices.”
These contradictory statements also need to be reconciled with certain statements in previous judgements such as Rajagopal v. State of Tamil Nadu (1994) where the court held the following:
“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.”
This judgment has been used by celebrities to censor or injunct unauthorized biographies about their lives. The most famous case in point being the injunction granted by the Madras High Court restraining Penguin from publishing an unauthorized biography about Jayalalitha. The court based its ruling on the Rajagopal judgment. Other public figures like Phoolan Devi and Veerappan have relied on the same SC judgment with differing degrees of success.
The White Paper maintains a deafening silence on the above litigation, the status of privacy as a fundamental right against the press, the nature of the conflict between the right to free speech and right to privacy. Rather it proposes to severely dilute the right of the press to report and inform the public, by framing the right to report as an “exception” to a data protection law. This exception, per the White Paper, would apply to “journalists” and “journalistic purposes”. However, noting the challenges in defining either term, the committee proposes an alternative solution that would define the categories of speech where privacy may be outweighed by the need to report it. The committee’s recommendation on this point is reproduced below:
“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.”
This option basically vests too much power in the hands of a judge. Given the spate of gag orders prohibiting the media from reporting on judicial proceedings in the Tejpal case, the Shorabuddin Sheikh case and the Yogi Adityanath case, there is adequate cause for concern with vesting such power in the hands of judges. Policymakers would do well to understand that unlike the UK, India is a vast country with a judiciary consisting of thousands of judges – an injunction or gag order, in one corner of a country by a relatively junior judge can result in a story being yanked off the internet across the country.
Against this backdrop, the two options presented by the Committee of Experts (i.e. defining journalists/journalistic purpose and defining categories of free speech that may outweigh the right to privacy) is like asking Indian journalists to choose between the devil and deep sea. Neither is acceptable. In our opinion, privacy as a fundamental right can be applied only against the state and not against private media in the country. Such an interpretation does not entirely denude the citizen of a privacy right because citizens can still enforce a judge made right to privacy that is grounded in the notion of confidentiality. Simply put, if certain information is disclosed to another person in confidence, the recipient cannot disclose such information to another person without the permission of the person who has disclosed such information in confidence.
This obligation in our opinion should exist only between parties that are privy to a contractual obligation and should not be enforceable against third parties, such as journalists, who never committed to any obligation of confidentiality but nevertheless received the information from their sources. This is, of course, only an initial proposal that requires to be debated in much more detail but in our opinion, this is perhaps the only way to protect the right of the Indian media to break stories such as the Radia tapes, the Essar leaks, the Panama leaks, all of which are watershed moments in Indian journalism.
The equitable duty to confidence is rather different from the fundamental right to privacy as articulated by the Supreme Court in the Puttuswamy case because the latter is based in abstract notions of “dignity and autonomy”. While there is no doubt that the state should be expected to protect the ‘dignity and autonomy’ of all its citizens, we do not think such a vague standard should be applied against private media establishments because it will have a chilling effect on free speech. It is impossible for a reasonable journalist to determine what is the ‘dignity’ or ‘autonomy’ of a person and if such a journalist is faced with the prospect of fines or criminal penalties for a possible breach of a data protection law, it is very likely that such journalists will end up self-censoring themselves because of a lack of clarity in the law.
This is, of course, not to say that the law should not protect the ‘dignity and autonomy’ of private citizens. The law should protect the dignity and autonomy of citizens but through well-articulated exceptions. For example, The HIV and AIDS (Prevention and Control) Act, 2017 prohibits the disclosure of the identity of HIV patients. Similarly, Section 228A of the Indian Penal Code makes it an offence to disclose the identity of a victim of a sexual offence. Another provision aimed at protecting the dignity of victims of sexual assault is Section 327(2) of the Code of Criminal Procedure which allows the presiding judges to conduct such trials, in camera. The Juvenile Justice Act prohibits the media from reporting about the identity of a juvenile offender. These are but some of the examples of how well-defined exceptions can both protect the “dignity and autonomy” of vulnerable citizens while at same time establishing bright-lines for the media. Having a general privacy right against even the media, based on a relatively vague concept of “human dignity and autonomy” is undesirable because these concepts are vague and vest far too much power in the hands of judges. Let us not repeat the mistakes of the UK and EU
III. The right to be forgotten
Chapter 10 of the White Paper for institutionalizing the “right to be forgotten” i.e. the right of a person to demand a complete erasure of information regarding his activities by the entity which displays such information on the internet. There have been a few cases on these lines in the EU, Canada etc. but most deal with search engines that index the internet and not the media itself. For example, in the Spanish case, when anybody conducted an internet search on a person’s name, the first result would lead to older news report about his financial missteps in the past. The European court ordered Google to de-index that particular search result but did not order the Spanish newspaper (which contained the story about the petitioner) to be deleted or modified in any manner. The whitepaper does not seem to take adequate cognizance of this distinction.
In our opinion it would be devastating to apply this ‘right to be forgotten’ against media publications because not only would it destroy the accuracy of journalistic records but also impede historical research in the future that depends on archival research. In addition, the establishment of the right to be forgotten imposes severe costs on media houses because they will be required to employ staff to process such requests. The White Paper seems to be unduly influenced by emerging case law in Canada and the EU when it suggests that even India adopt such a right. The Committee however also needs to focus on the nature of Indian democracy and journalism and the possibility of such a right being abused by the rich, powerful and corrupt to hide their tracks and suck the Indian media into a battle of attrition of scare financial resources.
We thus recommend that the committee forget about this ‘right to be forgotten’. The present direction of the committee’s views on this point are unacceptable to us.
IV. The proposed DPA cannot have jurisdiction over the Indian media
From a reading of the White Paper, it is quite clear that the Committee of Experts is going to recommend a monstrous, centralized Data Protection Authority (DPA) with all the bells and whistles that are standard issue for government agencies in India. We presume this centralized DPA will be a leviathan of a regulator that will have the powers to summon, inspect, survey, audit and raid any establishment that maintains records containing sensitive personal information.
This in our view is problematic because virtually every journalistic establishment in India will fall within the purview of this DPA. It is bad enough when the central government unleashes agencies like the Central Bureau of Investigation (CBI), the Income Tax Department (IT) and the Enforcement Directorate (ED) on the Indian media but do we then want to give it a new power to unleash the DPA on journalists?
This would amount to vesting too much power in the hands of the government, which in our experience is bound to misuse it against the free press. Would a hostile central government allow the Indian media to report on issues such as the Radia tapes, the Tehelka sting on arms deals, the Essar leaks? All of these explosive stories were based on leaked communications that displayed private information of people.
In our opinion, such an approach is unacceptable in Indian democracy where free speech is already under assault from both the judiciary and the executive. If such a data regulator must exist, its jurisdiction should be limited to the government’s own records.
V. The govt. should constitute a second committee to study the implications of a privacy law on journalism
Given the Committee’s approach to the issue of free speech (a phrase that appears only 5 times in a white paper of 243 pages), it is quite obvious that the committee looks at the rights of the press to report and the right of the people to be informed as a trivial issue. This approach is of concern for journalism in India. We therefore request that the committee limit its mandate to the issue of privacy of the citizen versus the state (including Aadhaar). The present Committee of Experts has no representation from the press, despite industry lobbies like the Data Security Council of India (a part of NASSCOM) being appointed to the Committee. It is thus no surprise that this committee is focused purely on the commercial aspects of data regulation, with little attention being paid to the impact of this law on journalism. Only a new committee with journalistic representation will cure this defect. There is no other acceptable solution.
It is therefore our demand that the government should constitute a second committee, with representation from the Editor’s Guild, the Press Council of India and other journalistic bodies to study the issue of privacy and journalism.
The submission was drafted for the Hoot by Prashant Reddy Thikkarvarapu.