Introduction

Media has entered in almost every sphere of our lives, connecting us to both the local and
global community. Most popular these days are social media platforms. These have become
the most preferred pedestals of sharing information, most importantly on glaring social
issues. They have become a vital source of information, especially for the younger
generation. Hence, they create a glaring impact on young minds.

This is where the issue of the right to privacy creeps in. Right to privacy is a fundamental
right of every citizen of India, interpreted by the Supreme court of India to derive from
Article 21 of the Constitution of India. The issue at hand is that of competing claims between
staunch advocates of social media platforms and people claiming breach of their right to
privacy, at the behest of social media platforms, eulogized as the right to freedom of speech
and expression.

Role Of Media
As is evident, media has become an intrinsic part of the lives of every person of the modern
world, therefore having an obvious impact on us. This impact is both positive and negative.
The most important positive impact is the easy accessibility of information, that too, at a
minimal cost. We get information from around the globe in seconds. Also, with social media,
we get to connect with our friends and family, who may be living at a great distance from us.
Staying in touch with our loved ones, and also the world at large instils a feeling of
connectedness in us from the very vicinity of our homes.

Coming to the negative impacts, the list is long. The most talked-about being addiction to
mobile phones, stress and bad mental health. This can cause change in sleeping patterns,
various sleep problems and can even be the cause of various psychological problems.
Another area of concern is the breach of the right to privacy, particularly concerning social
media and would be discussed further in this article.

Right To Privacy

Privacy, in the simplest sense, is the state of being secure from public intervention, without
one’s permission. Recognition of the right to privacy as a fundamental right was a bone of
contention for years for the Indian judiciary. In the earlier judgements of M.P Sharma vs

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Satish Chandra and Kharak Singh vs the State of U.P, it was held that the right to privacy is
not a fundamental right guaranteed under the Constitution of India.

In an unprecedented and historic judgement, in the case of Puttaswamy v. Union of India,

right to privacy was declared as a fundamental right, falling well within the boundary of
Article 14, 19 and 21 of the Constitution of India. It particularly exists intrinsic in the right of
life and liberty. It was declared that this is a fundamental and inalienable right protecting all
personal information of every individual, from even state scrutiny. Therefore, any act by
anyone, including the state, which infringes on the right to privacy of an individual is subject
to strict judicial scrutiny.

However, it was also clarified by the Apex court that, though the right to privacy is now a
fundamental right, it is still subject to reasonable restrictions. For the imposition of these
restrictions, the state has to fulfil threefold criteria, laid down by the Supreme court.

Impact Of Social Media On the Right To Privacy

Social media is basically a form of communication via the internet. Its main goal, when it
came into being, was to create a virtual kinship network throughout the world. The major
social networking sites are Instagram, Facebook, WhatsApp, etc. The users of these social
networking sites were untroubled until the coming of the 1990s. This was when cybercrime
was born.

Believe it or not, it is us who give away our personal information online. Intentionally or
unintentionally, we give away a lot of our personal information. This can be by signing up for
Amazon prime, Facebook, Instagram etc. Out of the internet users, one third admit to
knowing nothing about their personal information which is available online. Tons of cyber
information available online has opened the gates for new legal challenges for which
adequate laws are yet to be framed.

Also, it just doesn’t stop with not saving your passwords online or not giving away any of
your personal information online. Much more is splayed across cyberspace ranging from the
people you are connected with on social media, your buying patterns, to the frequent visiting
of some website etc.

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If you fail to protect your personal information from online hackers, the damage caused to
you can be huge. These can range from stealing your social security benefits, filing of
compensation claims using your credentials and using your names for making monetary
transactions in their name to using your credentials for making fake passports, PAN cards etc.
More importantly, the cases of sexual predators, cyberstalking, defamation and identity thefts
have come into focus.

It has been noted that the younger generation falls prey to such cybercrimes the most. This is
because usually, they see no harm in giving out even their personal information. This is major
because of their immaturity, which is easily identified by these criminal minds.

It is shocking to note that one of the largest social networking sites, Twitter, has admitted that
they have scanned the contacts of all their users so that they can get more information
regarding their users. Another example of this is Facebook, giving contradicting statements
about its own nature. One the one hand, it takes the firm stand that it owns all the contacts
available, and on the other hand, it grants users the right to access any contacts available.

Laws related to social media and privacy in India are clearly insufficient. The Indian
judiciary and legislature have proved to be far behind expectations when it comes to the
framing of laws in this arena. Some rules and legislations have been issued, those too are
primarily related to defamation.

In the Kharak Singh v State of UP, often called the PUCL case, it was held that tapping of
phones amounts to a breach of privacy. Extending this reasoning, it can be reasonably held
that sharing of information by WhatsApp with Facebook, post its update, is an obvious
breach of privacy of its users.

Now let’s come to the Information and Technology Act, 2000. The concept of privacy in this
act is comprehended in a very liberal and traditional sense. The act of knowingly sending
pictures of a person’s private parts, without his permission, then Section 66E of this act is
violated. Social media finds only a mention in Section 79 of this act. This section clarifies
that if any person posts or uploads anything derogatory to some other, then the medium on
which it is posted, that is Twitter, Facebook etc, is not to be held liable for the acts of such
person. Beyond this, nothing is mentioned in the whole article with regard to social media.
Let us understand this by a simple example- If X, a Facebook user posts something
derogatory to Y, another Facebook user, then Facebook is not to be blamed for X’s act.

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This concept has however evolved with time, in the case of Shreya Singhal, it was held that it
is Facebook’s duty to remove any material posted by them which is objectionable. This has to
be done by Facebook, applying its discretion, after complaints regarding the same are
received.

One concept to be noted here is the growing popularity of meme culture. Memes of famous
personalities carrying derogatory comments and comparisons can be safely termed as an
invasion of the privacy of such individuals. To check such incidents is urgently required.

Next, let’s learn about the recent Whatsapp- Facebook Privacy Case or Karmanya Singh v.
Union of India. Constitutional rights were meant to deal primarily with the relationship
between the state and individuals. However, this concept has seen a marked change due to the
boom of privatisation in India. Private companies have taken up many functions which are
traditionally associated with the state. Our Constitution makers, however, had framed laws
according to the situation of the country which was prevailing at that time.

Due to these changed conditions, these private actors when performing state-like actions are
subjected to the same Constitutional scrutiny. In the case at hand, the contract between two
social networking sites, Whatsapp and Facebook was challenged, both private parties,
invoking the above-mentioned ideology.

The facts of this case are – Whatsapp contends that now Facebook is its parent company, and
hence data of its users can be sent to the latter. Examples of the data in question are- names,
phone numbers, credentials, location, status etc. This vulnerable data may be used for a
number of purposes of which the users would not even be made aware of. The most harmful
one being the risk of uncalled for surveillance. It was also noted that this update of WhatsApp
would affect a wide variety of users, most of whom would not even be aware of the damage
that can be caused to them.

This case is presently pending before the Supreme court of India. The question of privacy as
a fundamental right was then referred to a larger constitutional bench. This bench ruled that
privacy has a tripartite structure namely, intimate, public and private zones of privacy. The
intimate zone includes physical and sexual privacy, the private zone encompasses ATM
number, PAN number etc. These two zones, held by the Supreme court of India are beyond
the facts of the case at hand. The zone of public privacy, it was held, has to be dealt with on a

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case to case basis. The present case falls under this zone and is pending before the Supreme
Court.

Constitutional Framework of Privacy

The right to privacy is recognised as a fundamental right under the Constitution of India. It is
guaranteed under the right to freedom (Article 19) and the right to life (Article 21) of the
Constitution. Article 19(1) (a) guarantees all citizens the right to freedom of speech and
expression. It is the right to freedom of speech and expression that gives the media the right
to publish any information. Reasonable restrictions on the exercise of the right can be
imposed by the State in the interests of sovereignty and integrity of the State, the security of
the State, friendly relations with foreign States, public order, decency or morality, or in
relation to contempt of court, defamation or incitement to an offence. Article 21 of the
Constitution provides, "No person shall be deprived of his life or personal liberty except
according to procedure established by law." Courts have interpreted the right to privacy as
implicit in the right to life. In R.Rajagopal v. State of T.N.[3]; and PUCL v. UOI[4], the
courts observed that the right to privacy is an essential ingredient of the right to life.

For instance, in R. Rajagopal v State of Tamil Nadu, Auto Shankar — who was sentenced to
death for committing six murders — in his autobiography divulged his relations with a few
police officials. The Supreme Court in dealing with the question on the right to privacy,
observed, that the right to privacy is implicit in the right to life and liberty guaranteed to the
citizens of the country by Article 21. It is a ‘right to be left 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.” The publication of any of the aforesaid personal
information without the consent of the person, whether accurate or inaccurate and ‘whether
laudatory or critical’ would be in violation of the right to privacy of the person and liable for
damages. The exception being, when a person voluntarily invites controversy or such
publication is based on public records, then there is no violation of privacy.

In PUCL v. UOI,[5]which is popularly known as the wire-tapping case, the question before
the court was whether wire-tapping was an infringement of a citizen’s right to privacy. The
court held that an infringement on the right to privacy would depend on the facts and
circumstances of a case. It observed that, "telephone conversation is an important facet of a
man's private life. Right to privacy would certainly include telephone-conversation in the
privacy of one's home or office. Telephone-tapping would, thus, infract Article 21 of the

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Constitution of India unless it is permitted under the procedure established by law." It further
observed that the right to privacy also derives from Article 19 for "when a person is talking
on telephone, he is exercising his right to freedom of speech and expression."

In Kharak Singh v. State of U.P,[6] where police surveillance was being challenged on
account of violation of the right to privacy, the Supreme Court held that domiciliary night
visits were violative of Article 21 of the Constitution and the personal liberty of an
individual.

The court, therefore, has interpreted the right to privacy not as an absolute right, but as a
limited right to be considered on a case to case basis. It is the exceptions to the right to
privacy, like ‘public interest’, that are of particular interest to this paper.

International Conventions

Internationally the right to privacy has been protected in a number of conventions. For
instance, the Universal Declaration of Human Rights, 1948 (UDHR) under Article 12
provides that:

"No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, or to attacks upon his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks."

The UDHR protects any arbitrary interference from the State to a person’s right to privacy.
Similarly, International Covenant on Civil and Political Rights, 1976 (ICCPR) under Article
17 imposes the State to ensure that individuals are protected by law against “arbitrary or
unlawful interference with his privacy, family, home or correspondence, nor to unlawful
attacks on his honour and reputation.

Thus, ensuring that States enact laws to protect individual’s right to privacy. India has ratified
the above conventions. The ratification of the Conventions mandates the State to take steps to
enact laws to protect its citizens. Although, human right activists have periodically demanded
that the State take adequate measures to protect human rights of the vulnerable in society, the
right to privacy has received little attention.

Similarly, Article 16 of the Convention on the Rights of the Child (CRC) provides protection
to a minor from any unlawful interference to his/her right to privacy and imposes a positive

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obligation on States who have ratified the convention to enact a law protecting the same.
India does have safeguards in place to protect identity of minors, especially, juveniles and
victims of abuse. However, there are exceptions when the law on privacy does not apply even
in case of a minor.

The right to privacy, therefore, is not an absolute right and does not apply uniformly to all
situations and all class of persons. For instance, privacy with respect to a certain class of
persons, like a person in public authority, affords different protection as opposed to private
individuals.

Trial by Media & Media Victimisation

The PCI norms lay down the guidelines for reporting cases and avoiding trial by media. The
PCI warns journalists not to give excessive publicity to victims, witnesses, suspects and
accused as that amounts to invasion of privacy. Similarly, the identification of witnesses may
endanger the lives of witnesses and force them to turn hostile. Zaheera Sheikh, who was a
key witness in the Gujarat Best Bakery case, was a victim of excessive media coverage and
sympathy. Her turning hostile invited equal amount of media speculation and wrath. Her
excessive media exposure possibly endangered her life. Instead, of focussing on the lack of a
witness protection program in the country, the media focussed on the twists and turns of the
case and the 19 year old’s conflicting statements. The right of the suspect or the accused to
privacy is recognised by the PCI to guard against the trial by media.

Swati Deshpande, a Senior Assistant Editor (Law) at the Times of India, Mumbai, observes
that, “As a good journalist one will always have more information than required, but whether
you publish that information or exercise restraint is up to you.” In a span of 11 years of court
reporting, as per her, there have been instances when she has exercised the option of not
reporting certain information that could be defamatory and cannot be attributed. If an
allegation is made in a court room, but is not supported by evidence or facts, then it is
advisable that it be dropped from the report.

"In the Bar Dancers’ case which was before the Bombay High Court, the petition made
allegations of all kinds against certain ministers. I did not report that, although I could have
justified it by saying it is part of the petition, and I was just doing my job. The allegation was

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neither backed by facts nor was it of public interest. As a rule one should report on
undisputed facts. Then again, with court reporting one is treading on safer grounds, as
opposed to other beats."

"In cases of rape when facts are part of the judgement, you report facts that are relevant to the
judgement or give you an insight on why the court took a certain view and add value to the
copy. One should avoid a situation where facts revealed are offensive or reveal the identity of
the victim. The past history of both the victim and the accused should not be reported."

She admitted, that "Media reporting often gives the impression that the accused has
committed the crime or the media through its independent investigation wing has found a
particular fact. When in fact, it has relied entirely on the information given by the police and
failed to question or verify the facts by an independent source. The result is that most crime
reporting is one-sided, because the information received from the police is rarely questioned."

As per her, to a certain degree the publication of Tata–Radia conversations did violate Tata’s
privacy. "Media needs to question itself prior to printing on how the information is of public
interest. Of course, as a journalist you do not want to lose out on a good story, but there needs
to be gate keeping, which is mostly absent in most of the media today."

In the Bofors pay-off case the High Court of Delhi, observed that, “The fairness of trial is of
paramount importance as without such protection there would be trial by media which no
civilised society can and should tolerate. The functions of the court in the civilised society
cannot be usurped by any other authority.” It further criticised the trend of police or the CBI
holding a press conference for the media when investigation of a crime is still ongoing. The
court agreed that media awareness creates awareness of the crime, but the right to fair trial is
as valuable as the right to information and freedom of communication.

The 200th report of the Law Commission dealt with the issue of Trial by media: Free Speech
vs Fair Trial under Criminal Procedure. The report, focussed on the pre-judicial coverage of a
crime, accused and suspects, and how it impacts the administration of justice. The Contempt
of Courts Act, under section 2 defines criminal contempt as:

"…the publication, (whether by words, spoken or written or by signs, or by visible

representations, or otherwise), of any matter or the doing of any other act whatsoever which

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(i) … … … …

(ii) prejudices or interferes or tends to interfere with the due course

of any judicial proceedings; or

(iii) interferes or tends to interfere with or obstructs or tends to obstruct, the administration of
justice in any manner."

Section 3(1) of the Act exempts any publication and distribution of publication, "if the
publisher had no reasonable grounds for believing that the proceeding was pending”. In the
event, the person is unaware of the pendency, any publication (whether by words spoken or
written or signs or visible representations) interferes or tends to interfere with or obstructs
“the course of justice in connection with any civil or criminal proceeding pending at the time
of publication, if at that time he had no reasonable grounds for believing that the proceeding
was pending." The report emphasizes that publications during the pre-trial stage by the media
could affect the rights of the accused. An evaluation of the accused’s character is likely to
affect or prejudice a fair trial.

If the suspect’s pictures are shown in the media, identification parades of the accused
conducted under Code of Civil Procedure would be prejudiced. Under Contempt of Court
Act, publications that interfere with the administration of justice amount to contempt.
Further, the principles of natural justice emphasise fair trial and the presumption of innocence
until proven guilty. The rights of an accused are protected under Article 21 of the
Constitution, which guarantees the right to fair trial. This protects the accused from the over-
zealous media glare which can prejudice the case. Although, in recent times the media has
failed to observe restraint in covering high-profile murder cases, much of which has been
hailed as media’s success in ensuring justice to the common man.

For instance, in the Jessica Lal murder case, the media took great pride in acting as a
facilitator of justice. The media in the case whipped up public opinion against the accused
and held him guilty even when the trial court had acquitted the accused. The media took on
the responsibility of administering justice and ensuring the guilty are punished, candle light
vigils and opinion polls on the case were organised by the media. Past history of the accused
was raked up by the media, including photographs of the accused in affluent bars and pubs in

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the city were published after he was acquitted. The photographs of Manu Sharma in pubs
insinuated how he was celebrating after his acquittal.

The Apex Court observed that the freedom of speech has to be carefully and cautiously used
to avoid interference in the administration of justice. If trial by media hampers fair
investigation and prejudices the right of defence of the accused it would amount to travesty of
justice. The Court remarked that the media should not act as an agency of the court.

The Court, commented, "Presumption of innocence of an accused is a legal presumption and

should not be destroyed at the very threshold through the process of media trial and that too
when the investigation is pending."

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 Conclusion
The right to privacy in India has failed to acquire the status of an absolute right. The right in
comparison to other competing rights, like, the right to freedom of speech & expression, the
right of the State to impose restrictions on account of safety and security of the State, and the
right to information, is easily relinquished. The exceptions to the right to privacy, such as,
overriding public interest, safety and security of the State, apply in most countries.
Nonetheless, as the paper demonstrates, unwarranted invasion of privacy by the media is
widespread. For instance, in the UK, Sweden, France and Netherlands, the right to
photograph a person or retouching of any picture is prohibited unlike, in India where press
photographers do not expressly seek consent of the person being photographed, if he/she is in
a public space. In France, not only is the publication of information is prohibited on account
of the right to privacy, but the method in which the information is procured also falls within
the purview of the right to privacy and could be violative. This includes information or
photograph taken in both public and private spaces. Privacy within public spaces is
recognised, especially, “where there is reasonable expectation of privacy.” The Indian norms
or code of ethics in journalism fail to make such a distinction between public and private
space. Nor do the guidelines impose any restrictions on photographing an individual without
seeking express consent of the individual.

The Indian media violates privacy in day-to-day reporting, like overlooking the issue of
privacy to satisfy morbid curiosity. The PCI norms prohibit such reporting, unless it is
outweighed by ‘genuine overriding public interest’. Almost all the above countries prohibit
publication of details that would hurt the feelings of the victim or his/her family. Unlike the
UK, where the PCC can pass desist orders, in India the family and/or relatives of the victims
are hounded by the media.

In India, the right to privacy is not a positive right. It comes into effect only in the event of a
violation. The law on privacy in India has primarily evolved through judicial intervention. It
has failed to keep pace with the technological advancement and the burgeoning of the 24/7
media news channels. The prevalent right to privacy is easily compromised for other

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competing rights of ‘public good’, ‘public interest’ and ‘State security’, much of what
constitutes public interest or what is private is left to the discretion of the media.

REFRENCES

http://rsrr.in/2018/10/27/right-to-privacy-and-social-media/#easy-footnote-bottom-6-373

https://thewire.in/tech/indias-privacy-bill-regulates-social-media-platforms

https://timesofindia.indiatimes.com/blogs/toi-edit-page/protect-right-to-privacy-petition-to-
make-social-media-traceable-strips-the-privacy-right-of-all-meaning/

http://rsrr.in/2018/10/27/right-to-privacy-and-social-media/

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