No cover for crime under right to privacy

Privacy is a right for private persons and also for private affairs of public persons. It is illegal, illogical and unreasonable for public persons to claim privacy for their public activities such as governance, policy making, industry, corporation, formation of ministry and politics. Privacy should not be mistaken with secret business operations causing harm to public institutions. Once a crime is committed, the suspicious persons need to be interrogated or investigated. Those suspected or involved cannot claim privacy and ask for protection of their identity. Secret lobbying behind 2G spectrum corruption has to be probed into. Looking into authorized recorded tapes is a required and legitimate process. Right to privacy is not a facility for hiding unethical deals. If criminals or suspects seek this right no crime could be probed.

 

If Tata, Barkha Dutt, Vir Sanghvi and others who figured in Radia tapes and Radia herself feel defamed by these revelations, they can test their right to reputation by suing the publishers. Certainly they do not have protection under Article 21 (Protection Of life And personal liberty) here.

 

Privacy: An Undefined Right

 

Privacy is an undefined right implied in right to life in general. It means the right to be let alone and its objective is to protect inviolate personality. It can be regarded as a fundamental human right as the presumption that individuals should have an area of autonomous development, interaction and liberty, a "private sphere" with or without interaction with others and free from State intervention and free from excessive unsolicited intervention by other uninvited individuals.[i]

 

Right to know preferred to Privacy: UK example:

Media’s right to publish certain matters like names of accused was upheld in the general interests of public in a UK apex court in the beginning of 2010. Under the UK Human Rights Act 1998, article 8.1 required public authorities, including the court, to respect private and family life. Three claimants (brothers) were designated under the Terrorism (United Nations Measures) Order (SI 2006 No 2657) as persons whom the Treasury suspected of actually or potentially facilitating terrorist acts. Asset-freezing orders were made against these claimants. As other appellate courts confirmed these orders, the case reached Supreme Court, where it was held that the general public interest in publishing a report of the proceedings in which they were named was justified.

 

A team of professors studied the interface between public interest, media and privacy for BBC and other State Commissions of UK[ii]. That report concluded that the general public put great value on media information or coverage which promotes the general good. They emphasized the identification of wrongdoing and wrongdoers with the media acting as guardians of shared moral and social norms. Under these conditions, and with suitable regard to the relative severity of the individual case, individuals’ privacy can be intruded upon ??" in extreme cases should be ??" in the name of the greater good.[iii]

 

Like several other rights, it is also not absolute as it can be restricted on the basis of compelling public interest.[iv]

 

Nation’s Right to know

 

The Supreme Court of India has held that a citizen has a right to receive information, derived from the concept of freedom of speech and expression comprised in Article 19(1)(a).[v] In the Raj Narain case the SC ruled: "The people of this country have a right to know every public act….state function.’’ In SP V. Union of India, it said, "No democratic government can exist without the responsibility and the basic postulate of accountability is that people should have information about the functioning of power." 

 

After privatization and globalization, there is an increased need for right to know the activities of corporate giants in clandestine association with corrupt rulers and unscrupulous bureaucrats. In Time V. Hill,[vi] U. S. Supreme Court said: "The constitutional guarantees of freedom of speech are not for the benefit of the press, but in order to benefit the entire nation.’’ This is an interesting case where private individual’s right to privacy was in conflict with freedom of press. The Life magazine published an article about the ordeal of a family trapped in their own house by escaped convicts. The article was inaccurate in several non-defamatory but nevertheless deeply disturbing respects. Members of the Hill family sued for invasion of privacy under a New York statute.

The Supreme Court's opinion in Hill built upon the 1964 decision of New York Times Co. v. Sullivan, in which the Court had held that plaintiffs who were public officials could not recover damages for defamation unless they could demonstrate that the defamation had been published with actual malice, "that is, with knowledge that it was false or with reckless disregard of whether it was false or not" (pp. 279??"280). In Time, Inc. v. Hill the Court extended the application of the actual malice rule to actions alleging that a plaintiff's privacy had been invaded by "false reports of matters of public interest" (p. 388).

 

Tata is correct in one aspect ??" there shall not be any unwarranted invasion of privacy. However, it is doubted whether his privacy was invaded. Unwarranted invasion of privacy is the exception to right to information as per section 8 of Right to Information Act, 2005. In the Supreme Court judges' assets case, the Delhi High Court held that personal information related to the performance of the public duties by public officials does not receive the same level of protection as that of private individuals who do not perform such duties[vii].

 

In Peoples Union for Civil Liberties (PUCL) v. Union of India,[viii] P. Venkatarama Reddy J. observed: By calling upon the contesting candidates to disclose the assets and liabilities of his/her spouse, the fundamental right to information of a voter citizen is thereby promoted. When there is a competition between the right to privacy of an individual and the right to information of the citizens, the former right has to be subordinated to the latter right as it serves larger public interest.

 

If a privacy interest in non-disclosure exists, the public interest in disclosure, if any, is weighed against that privacy interest.[ix] Even if the interest in protecting privacy is substantial, the importance of the public interest must still be considered because, unless the invasion of privacy is clearly unwarranted, the public interest in disclosure must prevail.[x]

 

Given that freedom of information laws have at their core the purpose of disclosure, exemptions are strictly construed, and it has been said that the public right to know should prevail unless disclosure would publicize intimate details of a highly personal nature.[xi] The Radia tapes have not revealed an iota of the personal life of Tata.

 

Legal principles of disclosure

 

From various jurisdictions and judicial decisions, following principles can be inferred.

 

Telephone tapping is held constitutional if ordered according to a prescribed procedure. (SC judgment in PUCL Case) Information obtained by authorized telephone tapping is not illegal information. If such information discloses clues and evidence of a crime or scandal, they have to be pursued. (Investigation in public interest to protect public property)

Right to privacy is available against the disclosure of information about private or personal life of the public or private person. Protection under privacy cannot be extended to criminal activities, conspiracies and attempts to manipulate political and governance related policies.

The protection for private information from disclosure is not available if there is overwhelming public interest in disclosure. Overweighing public interest in non-disclosure should be proved for not considering public interest in disclosure. In such conflicts privacy is not prime concern. If a privacy interest in non-disclosure exists, the public interest in disclosure, if any, is weighed against the privacy interest.

Unless information in the government's hands is non-public and of a "highly personal and sensitive" nature, such that its public disclosure "would be offensive and objectionable to a reasonable person," the disclosure of such information cannot, as a matter of law, violate an individual's right to privacy.

Given that freedom of information laws (US) have at their core the purpose of disclosure, exemptions are strictly construed, and it has been said that the public’s right to know should prevail unless disclosure would publicize intimate details of a highly personal nature[xii]. The courts have laid down no definitive rules as to what constitutes "an unwarranted invasion of personal privacy" within the meaning of exemption 7(C) of the Freedom of Information Act (FOIA)

The doctrine laid down in the Olmstead[xiii] case is that since wire tapping does not violate the Constitution, evidence so obtained is admissible under the common law of evidence no matter how illegally obtained. The nation has a right to know and justice demands all secrets be disclosed and used as evidence to prove corruption of these manipulating lobbyists, industrialists and media persons. It is in fact not the privilege of media to report but its obligation to inform the people.

(The author is Coordinator, Center for Media Law & Policy,

NALSAR University of Law, Hyderabad)

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[i] Lord Lester and D. Pannick (eds.), Human Rights Law and Practice (London, Butterworth, 2004), para. 4.82.

[ii] David. E Morrison, Michael Svennevig, The public interest, media & privacy, a report for BBC & other British authorities, March. 2002

[iii] Ibid.

[iv] Govind v. State of M.P. (1975)2 SCC 148, AIR 1975 S.C. 1378

[v] (State of U.P v Raj Narayan (1975) AIR 1975 SC 865; P.V.Narsimha Rao v State (1998) AIR 1998 SC 2120).

[vi] 385 U.S. 374 (1967)

[vii] The CPIO, Supreme Court of India vs Subhash Chandra Agarwal, WP(C) 288/2009

[viii] AIR 2003 SC 2363

[ix] Ripskis v. Department of Housing and Urban Development, 746 F.2d 1 (D.C. Cir. 1984)

[x] U.S. Dept. of State v. Ray, 502 U.S. 164, 112 S. Ct. 541, 116 L. Ed. 2d 526 (1991)

[xi] Attorney General v. Assistant Com'r of Real Property Dept. of Boston, 380 Mass. 623, 404 N.E.2d 1254 (1980)

[xii] Attorney General v. Assistant Com'r of Real Property Dept. of Boston, 380 Mass. 623, 404 N.E.2d 1254 (1980).

[xiii] Olmstead v. United States, 277 U. S. 438