Privacy is a right for private persons and also for private affairs of public persons. It is 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, criminal secrets as privacy as part of right to life.
Secret lobbying behind 2G spectrum corruption has to be probed into. Looking into authorized recorded tapes is a required and legitimate process, particularly if it involves the conversation of big people with political lobbyists, which insist on somebody to be made or not to be made the Telcom minister. If these tapes are blocked, the rich and powerful brokers would get emboldened to adjust the deals to escape from the long hands of law. Right to privacy is not secrecy or facility for hiding unethical deals and cornering state wealth through manipulations. If criminals or suspects seek this right no crime could be probed anywhere in the world.
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If Mr Ratan Tata, Ms Barkha Dutt, Mr Vir Singhvi and others who figured in Radia tapes and Ms Niira Radia herself feel defamed by these revelations, they can test their right to reputation by suing the publishers. Certainly they do not have Article 21 protection here. That right is available for victims of crime but not to criminals or their helpers.
Privacy is an undefined right implied in Right to Life in general. It means the right to be let alone and its object 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. [1]
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Right to Information trumps Privacy
Take a recent case in the UK where the media’s right to publish certain matters like names of accused was upheld in the general interests of public. Under the UK Human Rights Act 1998, Article 8.1 requires 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 curtailing their rights to private life.
A report on a study [2] on the interface between public interest, media and privacy for BBC and other State Commissions of UK concluded with a suggestion of treating public interest as an exception to privacy: The general public put great value and importance on media information or coverage which promotes the general good, for the well-being of all. These include the identification of wrongdoing and of the wrongdoers themselves, 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 it should be – in the name of the greater good. [3]
Like several other rights, it is also not absolute as it can be restricted on the basis of compelling public interest. [4]
The 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). [5] In Raj Narain case 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 privatisation and globalisation, 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 [6], the U. S. Supreme Court said: “The constitutional guarantees of freedom of speech in the press, 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. Life claimed that the article described events that had actually happened to the Hill family, which had in fact been held hostage several years before by escaped prisoners. 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).
Mr Ratan Tata's petition is correct in one aspect – there shall not be any unwarranted invasion of privacy. However, it is doubted and disputed whether his privacy was invaded or is it warranted. Unwarranted invasion of privacy is the exception to right to information as per section 8 of Right to Information Act, 2005, that means a required or warranted invasion is welcome to enforce right to know. 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 .[7]
In Peoples Union for Civil Liberties (PUCL) v. Union of India, [8] 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 nondisclosure exists, the public interest in disclosure, if any, is weighed against that privacy interest. [9] 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. [10]
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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 publicise intimate details of a highly personal nature. [11] The Radia tapes, so far published revealed public issue, but not an iota of personal life of the claimant Ratan Tata. There is neither ‘personal privacy’ nor ‘unwarranted invasion’.
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 authorised 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)
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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. Disclosure of Public information in the hands of Government is matter of state duty and right of citizen. (Right to know as part of right to life and Right to Information Act, 2005)
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 nondisclosure exists, the public interest in disclosure, if any, is weighed against the privacy interest.
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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. 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.
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 right to know should prevail unless disclosure would publicize intimate details of a highly personal nature. [12] 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)
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The doctrine laid down in the Olmstead [13] 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 to be disclosed and be used as evidence to prove corruption of these manipulating lobbyists, industrialists and media persons are no exceptions. It is in fact not the privilege of media to report but its obligation to inform the people to enforce their right to know.
Professor Madabhushi Sridhar is Coordinator, Center for Media Law & Policy, NALSAR University of Law, Hyderabad
