Media+law+-+sampath+ (1).pdf

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,

motherhood, child-bearing and education

marriage,

procreation,

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

unobjectionable if such publication is based

upon

records

the

including court records. This is for

once a matter becomes a matter of public record,

becomes public

reason the

right

that 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