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Privacy & Media Law

In her research, Sonal Makhija, a Bangalore-based lawyer, tries to delineate the
Meta
emerging privacy concerns in India and the existing media norms and guidelines
on the right to privacy. The research examines the existing media norms (governed 19 July, 2011
by Press Council of India, the Cable Television Networks (Regulation) Act, 1995 and Internet Governance, Privacy
the Code of Ethics dra!ed by the News Broadcasting Standard Authority), the
constitutional protection guaranteed to an individual’s right to privacy upheld by
the courts, and the reasons the State employs to justify the invasion of privacy. The Author
paper further records, both domestic and international, inclusions and exceptions Sonal Makhija
with respect to the infringement of privacy.

Introduction Blog
Last year’s satirical release, Peepli [Live], accurately captured what takes place in media
Divergence between the General Data
news rooms. The film revolves around a debt-ridden farmer whose announcement to
Protection Regulation and the Personal
commit suicide ensue a media circus. Ironically, in the case of the Radia tapes, the same
Data Protection Bill, 2019
journalists found themselves in the centre of the media’s frenzy-hungry, o!en intrusive
Feb 21, 2020
and unverified style of reporting.[1] Exposés, such as, the Radia tapes and Wikileaks
have thrown open the conflict between the right to information, or what has come to be Content takedown and users' rights
called ‘informational activism’, and the right to privacy. Right to information and the Feb 14, 2020
right to communicate the information via media is guaranteed under Article 19(1) (a) of
the Constitution of India. In State of Uttar Pradesh v Raj Narain,[2] the Supreme Court of Comments to the Personal Data
India held that Article 19(1) (a), in addition, to guaranteeing freedom of speech and Protection Bill 2019
expression, guarantees the right to receive information on matters concerning public Feb 12, 2020
interest. However, more recently concerns over balancing the right to information with
the right to privacy have been raised, especially, by controversies like the Radia-tapes. Automated Facial Recognition Systems
and the Mosaic Theory of Privacy: The
For instance, last year Ratan Tata filed a writ petition before the Supreme Court of India Way Forward
alleging that the unauthorised publication of his private conversations with Nira Radia Jan 02, 2020
was in violation of his right to privacy. The writ, filed by the industrialist, did not
challenge the action of the Directorate-General of Income Tax to record the private Automated Facial Recognition Systems
conversations for the purpose of investigations. Instead, it was challenging the (AFRS): Responding to Related Privacy
publication of the private conversations that took place between the industrialist and Concerns
Nira Radia by the media. Whether the publication of those private conversations was in Jan 02, 2020
the interest of the public has been widely debated. What the Tata episode brought into
focus was the need for a law protecting the right to privacy in India.
India, at present, does not have an independent statute protecting privacy; the right to Events
privacy is a deemed right under the Constitution. The right to privacy has to be How to Shut Down Internet Shutdowns
understood in the context of two fundamental rights: the right to freedom under Article
19 and the right to life under Article 21 of the Constitution. Cybersecurity Visuals Media Handbook:
Launch Event
The higher judiciary of the country has recognised the right to privacy as a right
“implicit in the right to life and liberty guaranteed to the citizens of this country by

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Article 21”. The Indian law has made some exceptions to the rule of privacy in the Internet Speech: Perspectives on
interest of the public, especially, subsequent to the enactment of the Right to Regulation and Policy
Information Act, 2005 (RTI). The RTI Act, makes an exception under section 8 (1) (j),
which exempts disclosure of any personal information which is not connected to any SOTM Asia 2018
public activity or of public interest or which would cause an unwarranted invasion of
Workshop on Cybersecurity Illustrations
privacy of an individual. What constitutes an unwarranted invasion of privacy is not
defined. However, courts have taken a positive stand on what constitutes privacy in
di"erent circumstances.
The purpose of this paper is to delineate the emerging privacy concerns in India and the
existing media norms and guidelines on the right to privacy. At present, the media is
governed by disparate norms outlined by self-governing media bodies, like the Press
Council of India, the Cable Television Networks (Regulation) Act, 1995 and the Code of
Ethics dra!ed by the News Broadcasting Standard Authority (NBSA). The paper
examines the existing media norms, constitutional protection guaranteed to an
individual’s right to privacy and upheld by courts, and the reasons the State employs to
justify the invasion of privacy. The paper records, both domestic and international,
inclusions and exceptions with respect to the infringement of privacy.
The paper traces the implementation of media guidelines and the meanings accorded
to commonly used exceptions in reporting by the media, like, ‘public interest’ and
‘public person’. This paper is not an exhaustive attempt to capture all privacy and media
related debates. It does, however, capture debates within the media when incursion on
the right to privacy is considered justifiable. The questions that the paper seeks to
respond to are: When is the invasion on the right to privacy defensible? How the media
balances the right to privacy with the right to information? How is ‘public interest’
construed in day-to-day reporting? The questions raised are seen in the light of case
studies on the invasion of privacy in the media, the interviews conducted with print
journalists, the definition of the right to privacy under the Constitution of India and
media’s code of ethics.

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
o"ence. 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 o"icials. 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 le! 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

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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 o!ice. Telephone-tapping
would, thus, infract Article 21 of the 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. [7]
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 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, a"ords di"erent protection as
opposed to private individuals.

Public Person
In case of a representative of the public, such as a public person, the right to privacy
a"orded to them is not of the same degree as that to a private person. The Press
Council of India (PCI) has laid down Norms of Journalistic Conduct, which address the
issue of privacy. The PCI Norms of Journalistic Conduct, recognises privacy as an
inviolable human right, but adds a caveat; that the degree of privacy depends on
circumstances and the person concerned.
In the landmark judge’s asset case, CPIO, Supreme Court of India vs Subhash Chandra
Agarwal,[8] the court recognised the tension between the right to information and the
right to privacy, especially, with respect to public persons. The case arose from an
application filed by a citizen who was seeking information under the RTI Act on whether
judges of high courts and Supreme Court were filing asset declarations in accordance
with full resolution of the Supreme Court. The court held that information concerning

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private individuals held by public authority falls within the ambit of the RTI Act. It
remarked that whereas public persons are entitled to privacy like private persons, the
privacy a"orded to private individuals is greater than that a"orded to those in public
authority, especially in certain circumstances.
The court commented:
"A private citizen's privacy right is undoubtedly of the same nature and character as that
of a public servant. Therefore, it would be wrong to assume that the substantive rights
of the two di"er. Yet, inherent in the situation of the latter is the premise that he acts for
the public good, in the discharge of his duties, and is accountable for them. The
character of protection, therefore, a"orded to the two classes — public servants and
private individuals, is to be viewed from this perspective. The nature of restriction on
the right to privacy is therefore, of a di"erent order; in the case of private individuals,
the degree of protection a"orded is greater; in the case of public servants, the degree of
protection can be lower, depending on what is at stake."
In testing whether certain information falls within the purview of the RTI Act, the court
said one should consider the following three tests:
whether the disclosure of the personal information is with the aim of providing
knowledge of the proper performance of the duties and tasks assigned to the public
servant in any specific case;
whether the information is deemed to comprise the individual's private details,
unrelated to his position in the organization, and,
whether the disclosure will furnish any information required to establish
accountability or transparency in the use of public resources.
Would this rule hold true for information on relatives/ friends of public persons? The
rule is that, unless, private information on relatives/friends of public person’s impacts
public interest and accountability, the information should not be revealed.
In 2010, the media reported that Sunanda Pushkar, a close friend of the Minister of State
for External A"airs, Shashi Tharoor, holds a significant holding in the IPL Kochi team.
The media exposure led to the exit of Shashi Tharoor from the government. While the
media’s questioning of Pushkar’s holdings was legitimate, the media’s reporting on her
past relationships and how she dressed had no bearing on public interest or
accountability.[9] The media accused Pushkar of playing proxy for Tharoor in the Rs. 70
crore sweat equity deal. Much of the media attention focussed on her personal life, as
opposed to, how she attained such a large stake in the IPL Kochi team. It minutely
analysed her successes and failures, questioned her ability and accused her of having
unbridled ambition and greed for money and power.[10]
If one was to consider the rules of privacy set by the court in the judges assets’ case
much of the personal information published by the media on Tharoor and Pushkar,
failed to shed light on the IPL holdings or the establishment of the nexus between the
IPL holdings and the government involvement.
The tests delineated by the court in considering what personal information regarding a
public authority may be shared under the RTI Act, can be adopted by the media when
reporting on public o"icials. If personal information divulged by the media does not
shed light on the performance of a public o"icial, which would be of public interest,
then the information revealed violates the standards of privacy. Personal details which
have no bearing on public resources or interests should not be published.
The media coverage of the Bombay terror attacks displayed the same lack of restraint,
where the minutest details of a person’s last communication with his/her family were
repeatedly printed in the media. None of the information presented by the media
revealed anything new about the terror attack or emphasised the gravity of the attack.
A senior journalist, who talked o" the record and reported on the Mumbai terror
attacks, agreed that the media overstepped their limits in the Mumbai terror attacks. As
per her, violation of privacy takes place at two stages: the first time, when you overstep
your boundaries and ask a question you should not have, and the second, when you
publish that information. Reflecting on her ten years of reporting experience, she said,
“O!en when you are covering a tragedy, there is little time to reflect on your reporting.

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Besides, if you, on account of violating someone’s privacy, choose not to report a story,
some competing paper would surely carry that story. You would have to defend your
decision to not report the story to your boss.” The competitiveness of reporting and
getting a story before your competitor, she agreed makes even the most seasoned
journalists ruthless sometimes. Besides, although PCI norms exist, not many read the
PCI norms or recall the journalistic ethics when they are reporting on the field.[11]
The PCI Norms reiterate that the media should not intrude "the privacy of an individual,
unless outweighed by genuine overriding public interest, not being a prurient or morbid
curiosity."[12] The well accepted rule, however, is that once a matter or information
comes in the public domain, it no longer falls within the sphere of the private. The
media has failed to make the distinction between what is warranted invasion of privacy
and what constitutes as an unwarranted invasion of privacy. For instance, identity of a
rape or kidnap victim that would further cause discrimination is o!en revealed by the
media.

Safeguarding Identity of Children

The Juvenile Justice (Care and Protection of Children) Act lays down that the media
should not disclose the names, addresses or schools of juveniles in conflict with the law
or that of a child in need of care and protection, which would lead to their
identification. The exception, to identification of a juvenile or child in need of care and
protection, is when it is in the interest of the child. The media is prohibited from
disclosing the identity of the child in such situations.
Similarly, the Convention on the Rights of the Child (CRC) stipulates that:
Article 16
1. No child shall be subjected to arbitrary or unlawful interference with his or her
privacy, family, or correspondence, nor to unlawful attacks on his or her honour and
reputation.
2. The child has the right to the protection of the law against such interference or
attacks.

Article 40 of the Convention, states that the privacy of a child accused of infringing
penal law should be protected at all stages of the proceedings.
Almost all media, print and broadcast, fail to observe these guidelines. Prashant
Kulkarni[13] (name changed), who was a photographer with Reuters a few years ago,
said that in Reuters photographs taken by photojournalists could not be altered or
edited, to ensure authenticity.
As far as taking photographs of certain vulnerable persons is concerned, he admitted to
photographing street children who are drug addicts on the streets of Mumbai. The
photographs were published by Reuters. However, when he was on an assignment for
an NGO working with children, the NGO cautioned him about photographing children
who are drug addicts, to protect their identity. Similarly, identity of HIV and AIDS
patients, including children, should be protected and not revealed. Children a"ected
with HIV and AIDS should not be identified by name or photograph, even if consent has
been granted by the minor’s parents/guardian.
As a rule, Kulkarni said, he does not seek consent of individuals when he is taking their
photographs, if they are in a public place. If they do not object, the assumption is that
they are comfortable with being photographed. The PCI norms do not expressly provide
that consent of a person should be sought. But, journalists are expected to exercise
restraint in certain situations. Likewise, identifying juveniles in conflict with law is
restricted. This includes taking photographs of juveniles that would lead to their
identification.
Kulkarni, who extensively covered the Bombay train blasts in 2006, explains, "At the
time of the Bombay train explosions, I avoided taking pictures that were gory or where
dead people could be identified. However, I did take photographs of those injured in the
blast and were getting treated in government hospitals. I did not expressly seek their
consent. They were aware of being photographed. That is the rule I have applied, even

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when I was on an assignment in West Africa. I have never been on an assignment in
Europe, so am not sure whether I would have applied the same rule of thumb.
Nonetheless, now as a seasoned photographer, I would refrain from taking pictures of
children who are drug addicts."

Safeguarding Identity of Rape Victims

Section 228A of the Indian Penal Code makes disclosure of the identity of a rape victim
punishable. In the recent Aarushi Talwar murder case and the rape of an international
student studying at the Tata Institute of Social Sciences (TISS) the media frenzy
compromised the privacy of the TISS victim and besmirched the character of the dead
person.[14] In the TISS case, the media did not reveal the name of the girl, but revealed
the name of the university and the course she was pursuing, which is in violation of the
PCI norms. In addition to revealing names of individuals, the PCI norms expressly states
that visual representation in moments of personal grief should be avoided. In the
Aarushi murder case, the media repeatedly violated this norm.
The media in both cases spent enough newsprint speculating about the crimes.
Abhinav Pandey[15] (name changed), a senior journalist reporting on crime, agrees that
the media crossed its boundaries in the TISS case by reporting sordid details of how the
rape took place. "Names of victims of sexual crime cannot be reported. In fact, in many
instances the place of stay and any college a"iliation should also be avoided, as they
could be easily identified. Explicit details of the o"ence drawn from the statement given
by the victim to the police are irrelevant to the investigation or to the public at large.
Similarly, names of minors and pictures, including those of juveniles, have to be
safeguarded."
"Crime reporters receive most of their stories from the police. Therefore, one has to be
careful before publishing the story. At times in the rigour of competitive journalism, if
you decide to publish an unverified story, as a good journalist you should present a
counter-point. As a seasoned journalist it is easy to sense when a story is being planted
by the police. If you still want to carry the story, one has to be careful not to taint the
character of a person," he adds.
"For instance, in my reporting if I find that the information will not add to the
investigation, I will not include it in my copy. Last year, we had anonymous letters being
circulated among crime reporters which alleged corruption among senior IPS o"icers.
Instead of publishing the information contained in those letters with the names of the
IPS o"icers, we published a story on corruption and cronyism on IPS o"icers. In the
Faheem Ansari matter, who was an accused in the 26/11 trial, I had received his email
account password. Accessing his account also amounts to violation of privacy. But, we
only published the communication between him and some handlers in Pakistan, which
we knew would have an impact on the investigation. Our job requires us to share
information in the public domain, sometimes we would violate privacy. Nonetheless,
one has to be cautious."

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,[16] 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

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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 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 o"ensive 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 o!en 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-o" case[17] 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.”[18] 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
(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 a"ect the rights of the
accused. An evaluation of the accused’s character is likely to a"ect or prejudice a fair

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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 a"luent bars and pubs in the city were published a!er he was acquitted. The
photographs of Manu Sharma in pubs insinuated how he was celebrating a!er 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.[19]
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."[20]

Sting Operations
On 30 August, 2007 Live India, a news channel conducted a sting operation on a Delhi
government school teacher forcing a girl student into prostitution. Subsequent to the
media exposé, the teacher Uma Khurana[21] was attacked by a mob and was
suspended by the Directorate of Education, Government of Delhi. Later investigation
and reports by the media exposed that there was no truth to the sting operation. The
girl student who was allegedly being forced into prostitution was a journalist. The sting
operation was a stage managed operation. The police found no evidence against the
teacher to support allegations made by the sting operation of child prostitution. In this
case, the High Court of Delhi charged the journalist with impersonation, criminal
conspiracy and creating false evidence. The Ministry of Information and Broadcasting
sent a show cause notice to TV-Live India, alleging the telecast of the sting operation by
channel was “defamatory, deliberate, containing false and suggestive innuendos and
half truths."[22]
Section 5 of the Cable Television Networks (Regulation) Act, 1995 and the Cable
Television Network Rules (herea!er the Cable Television Networks Act), stipulates that
no programme can be transmitted or retransmitted on any cable service which contains
anything obscene, defamatory, deliberate, false and suggestive innuendos and half
truths. The Rules prescribes a programming code to be followed by channels
responsible for transmission/re-transmission of any programme.
The programme code restricts airing of programmes that o"end decency or good taste,
incite violence, contains anything obscene, defamatory, deliberate, false and suggestive
innuendos and half truths, criticises, maligns or slanders any individual in person or
certain groups, segments of social, public and moral life of the country and a"ects the
integrity of India, the President and the judiciary. The programme code provided by the
Rules is exhaustive. The Act empowers the government to restrict operation of any
cable network it thinks is necessary or expedient to do so in public interest.

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The court observed that false and fabricated sting operations violate a person’s right to
privacy. It further, observed, "Giving inducement to a person to commit an o"ence,
which he is otherwise not likely and inclined to commit, so as to make the same part of
the sting operation is deplorable and must be deprecated by all concerned including
the media.” It commented that while “…sting operations showing acts and facts as they
are truly and actually happening may be necessary in public interest and as a tool for
justice, but a hidden camera cannot be allowed to depict something which is not true,
correct and is not happening but has happened because of inducement by entrapping a
person."[23]
The court criticised the role of the media in creating situations of entrapment and using
the ‘inducement test’. It remarked that such inducement tests infringe upon the
individual's right to privacy. It directed news channels to take steps to prohibit
“reporters from producing or airing any programme which are based on entrapment
and which are fabricated, intrusive and sensitive.[24]
The court proposed a set of guidelines to be followed by news channels and electronic
media in carrying out sting operations. The guidelines direct a channel proposing to
telecast a sting operation to obtain a certificate from the person who recorded or
produced the same certifying that the operation is genuine to his knowledge. The
guidelines propose that the Ministry of Information and Broadcasting should set up a
committee which would have the powers to grant permission for telecasting sting
operations. The permission to telecast a sting operation should be granted by the
committee only if it is satisfied about the overriding public interest to telecast the sting
operation. The guidelines mandate that, in addition, to ensuring accuracy, the
operation should not violate a person’s right to privacy, "unless there is an identifiable
large public interest” for broadcasting or publishing the material. However, the court
failed to define what constitutes 'larger public interest'.
The PCI norms also lay down similar guidelines which require a newspaper reporting a
sting operation to obtain a certificate from the person involved in the sting to certify
that the operation is genuine and record in writing the various stages of the sting. The
decision to report the sting vests with the editor who merely needs to satisfy himself
that the sting operation is of public interest.
In addition, to the Cable Television Networks Act and the PCI norms, the News
Broadcasting Standard Authority (NBSA) was set up in 2008 as a self-regulatory body by
News Broadcasters Association.[25] The primary objective of the NBSA is to receive
complaints on broadcasts. The NBSA has dra!ed a Code of Ethics and Broadcasting
Standards governing broadcasters and television journalists. The Code of Ethics
provides guiding principles relating to privacy and sting operations that broadcasters
should follow.
With respect to privacy, the Code directs channels not to intrude into the private lives of
individuals unless there is a “clearly established larger and identifiable public interest
for such a broadcast.” Any information on private lives of persons should be “warranted
in public interest.” Similarly, for sting operations, the Code directs that they should be
used as “a last resort” by news channels and should be guided by larger public interest.
They should be used to gather conclusive evidence of criminality and should not
edit/alter visuals to misrepresent truth.
In a recent judgement on a supposed sting operation conducted by M/s. Associated
Broadcasting Company Pvt. Limited[26] on TV9 on ‘Gay culture rampant in Hyderabad’,
the NBA took suo motu notice of the violation of privacy of individuals with alternate
sexual orientation and misuse of the tool of sting operation. NBA in its judgement held
that the Broadcaster had violated clauses on privacy, sting operations and sex and
nudity of the Code of Ethics. It further, observed, that the Broadcaster and the story did
not reveal any justifiable public interest in using the sting operation and violating the
privacy of individuals. In this particular case, the Broadcaster had revealed the personal
information and faces of supposedly gay men in Hyderabad to report on the
‘underbelly’ of gay culture and life. However, the news report, as NBSA observed, did
not prove any criminality and was merely a sensational report of gay culture allegedly
prevalent in Hyderabad.

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The PCI norms provide that the press should not tape-record conversations without the
person’s express consent or knowledge, except where it is necessary to protect a
journalist in a legal action or for “other compelling reason.” What constitutes a
compelling reason is le! to the discretion of the journalist.
It was in the 1980s, that the first sting operation on how women were being tra"icked
was carried out by the Indian Express reporter Ashwin Sarin. As part of the sting, the
Express purchased a tribal girl called Kamla. Subsequently, in 2001, the sting operation
conducted by Tehelka exposed corruption in defence contracts using spy cams and
journalists posing as arms dealers. The exposé on defence contracts led to the
resignation of the then defence minister George Fernandes. Sting operations gained
legitimacy in India, especially in the a!ermath of the Tehelka operation, exposing
corruption within the government. The original purpose of a sting operation or an
undercover operation was to expose corruption. Stings were justifiable only when it
served a public interest. Subsequent to the Tehelka exposé, stings have assumed the
status of investigative journalism, much of which has been questioned in recent times,
especially, with respect to ethics involved in conducting sting operations and the
methods of entrapment used by the media. Further, stings by Tehelka, where the
newspaper used sex workers to entrap politicians have brought to question the manner
in which stings are operated. Although, the overriding concern surrounding sting
operations has been its authenticity, as opposed to, the issue of personal privacy.
For instance, in March 2005 a television news channel carried out a sting operation
involving Bollywood actor Shakti Kapoor to expose the casting couch phenomenon in
the movie industry. The video showing Shakti Kapoor asking for sexual favours from an
aspiring actress, who was an undercover reporter, was received with public outrage.
Nonetheless, prominent members of the media questioned the manner in which the
sting was conducted. The sting was set up as an entrapment. The court has taken a
strong view against the use of entrapment in sting operations. In the case of the Shakti
Kapoor sting, privacy of the actor was clearly violated. The manner in which the sting
was conducted casts serious doubt on who was the victim.[27]
Additionally, the sting violated the PCI norms. It failed to provide a record of the various
stages of how the sting operation was conducted. In United Kingdom, the media when
violating privacy of a person has to demonstrate that it is in the interest of the public.

International Law on Media & Privacy Ethics

United Kingdom
The Press Complaints Commission (PCC), UK is a self-regulatory body similar to NBA.
The PCC has put down code of ethics to be followed by journalists. The PCC guidelines
provide that everyone has the right to privacy and editors must provide reason for
intrusions to a person’s privacy. This includes photographing individuals in private
places without their consent. Interestingly, private places include public or private
property "where there is a reasonable expectation of privacy." In India however, as
Kulkarni pointed out, photographs are taken without the consent of an individual if
he/she is in a public space.
Like the PCI norms, the PCC Code lays down guidelines to follow when reporting on
minors (below 16 years of age) who have been victims of sexual assault. As per the
guidelines, the identity of the children should be protected. Further, relatives or friends
of persons convicted or accused of a crime should not be identified without their
consent, unless the information is relevant to the story. References to a person’s race,
colour, sexual orientation and gender should be avoided. For instance, the media
reportage of the TISS rape case, which revealed the nationality and colour of the victim,
would be in violation of the PCC Code. In the TISS rape case, the information on the
nationality and colour of the victim was not only irrelevant to the story, but as amply
demonstrated by the media it reinforced prejudices against white women as ‘loose or
amoral’.[28]
As far as sting operations are concerned, the PCC lays down that the press must not
publish material acquired by hidden camera or clandestine devices by intercepting
private messages, emails or telephone calls without consent. However, revealing

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private information in cases of public interest is an exception to the general rule to be
followed with respect to individual privacy. The PCC defines public interest to include,
but it is not restricted to:
"i) Detecting or exposing crime or serious impropriety
ii) Protecting public health and safety
iii) Preventing the public from being misled by an action or statement of an individual
or organisation"
It requires editors to amply demonstrate that a publication is of public interest. In case
the material is already in public domain the same rules of privacy do not apply.
However, in cases involving children below 16 years of age, editors must demonstrate
exceptional public interest that overrides the interest of the child. Tellingly, the PCC
recognises freedom of expression as public interest.
The PCC, to ensure that persons are not hounded by the media have started issuing
desist orders. The PCC issues a desist notice to editors to prevent the media from
contacting the person. Preventive pre-publication is when the PCC pre-empts a story
that may be pursued or published and attempts to either influence the reporting of the
story in a way that it is not in violation of a person’s privacy or persuades the media
house not to publish the story. The PCC, however, does not have the powers to prevent
publication.
Further, United Kingdom is a member of the European Convention on Human Rights
(ECHR), which guarantees the right to privacy under Article 8 of the Convention:
"Everyone has the right to respect for his private and family life, his home and his
correspondence."
However, there is no independent law which recognises the right to privacy. The
judiciary however has protected the right to privacy in several occasions, like in the
famous J.K. Rowling case where the English Court held, that a minor’s photograph
without the consent of the parent or guardian, though not o"ensive, violates the child’s
right to privacy.[29]

France
The French legal system protects the right to privacy under: Article 9 of the Civil Code.
Article 9 of the Civil Code states:
Everyone has the right to respect for his private life. Without prejudice to compensation
for injury su"ered, the court may prescribe any measures, such as sequestration,
seizure and others, appropriate to prevent or put an end to an invasion of personal
privacy; in case of an emergency those measures may be provided for by an interim
order. The right to privacy allows anyone to oppose dissemination of his or her picture
without their express consent.
Article 9 covers both the public and private spheres, and includes not merely the
publication of information but also the method of gathering information. Also, in France
violation of one’s privacy is a criminal o"ence. This includes recording or transmitting
private conversations or picture of a person in a private place without the person’s
consent. This implies that privacy is not protected in a public place. Any picture taken of
a person dead or alive, without their prior permission, is prohibited. Buying of such
photographs where consent of a person also constitutes as an o"ence. Journalists,
however, are not disqualified from the profession if they have committed such an
o"ence.[30]
France has the Freedom of the Press of 29 July 1881 which protects minors from being
identified and violent and licentious publication which targets minors. It punishes
slander, publication of any information that would reveal the identity of a victim of a
sexual o"ence, information on witnesses and information on court proceedings which
include a person’s private life.[31]

Sweden
Privacy is protected in Sweden under its Constitution. All the four fundamental laws of

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the country: the Instrument of Government, the Act of Succession, the Freedom of the
Press Act, and the Fundamental Law on Freedom of Expression protect privacy. The
Instrument of Government Act of 1974 provides for the protection of individual privacy.
It states that freedom of expression is limited under Article 13 of the Constitution:
"Freedom of expression and freedom of information may be restricted having regard to
the security of the Realm, the national supply, public safety and order, the integrity of
the individual, the sanctity of private life, or the prevention and prosecution of crime.
Freedom of expression may also be restricted in economic activities. Freedom of
expression and freedom of information may otherwise be restricted only where
particularly important reasons so warrant."
Sweden has a Press Council which was established in 1916. The Council consists of the
Swedish Newspaper Publishers' Association, the Magazine Publishers' Association, the
Swedish Union of Journalists and the National Press Club. The Council consists of "a
judge, one representative from each of the above-mentioned press organisations and
three representatives of the general public who are not allowed to have any ties to the
newspaper business or to the press organisations."
Additionally, there is an o"ice of the Press Ombudsman which was established in 1969.
Earlier the Swedish Press Council used to deal with complaints on violations of good
journalistic practice. A!er the setting up of the Press Ombudsman, the complaints are
first handled by the Press Ombudsman, who is empowered to take up matters suo
motu. "Any interested members of the public can lodge a complaint with the PO against
newspaper items that violate good journalistic practice. But, the person to whom the
article relates to must provide a written consent, if the complaint is to result in a formal
criticism of the newspaper."[33]
The Swedish Press Council reports that in the recent years, 350-400 complaints have
been registered annually, of which most concern coverage of criminal matters and
invasion of privacy.
Sweden, additionally, has a Code of Ethics which applies to press, radio and television.
The Code of Ethics was adopted by the Swedish Co-operation Council of the Press in
September 1995. The Code of Ethics for Press, Radio and Television in Sweden has been
drawn up by the Swedish Newspaper Publishers' Association, the Magazine Publishers'
Association, the Swedish Union of Journalists and the National Press Club.
The Code of Ethics lay down norms to be followed in respect of privacy. It states that
caution should be exercised when publishing information that:
Infringes on a persons’ privacy, unless it is obviously in public interest,
Information on suicides or attempted suicides
Information on victims of crime and accidents. This includes publication of pictures
or photographs[34]
Race, sex, nationality, occupation, political a"iliation or religious persuasion in certain
cases, especially when such information is of no importance, should not be published.
One should exercise care in use of pictures, especially, retouching a picture by an
electronic method or formulating a caption to deceive the reader. In case a picture has
been retouched, it should be indicated below the photograph.
Further, the Code asks journalists to consider “the harmful consequences that might
follow for persons if their names are published” and names should be published only if
it is in the public interest. Similarly, if a person’s name is not be revealed, the media
should refrain from publishing a picture or any particulars with respect to occupation,
title, age, nationality, sex of the person, which would enable identification of the
person.
In case of court reporting or crime reporting, the Code states that the final judgement of
the Court should be reported and given emphasis, as opposed to conducting a media
trial. In addition, Sweden has incorporated the ECHR in 1994.

Japan
The Japan Newspaper Publishers & Editors Association or Nihon Shinbun Kyokai (NSK),

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Page 12 of 16
[35] was established in 1946 as an independent and voluntary organisation to establish
the standard of reporting, and protect and promote interests of the media. The
organisation as part of its mandate has developed the Canon of Journalism, which
provides for ethics and codes members of the body should follow. The Canon
recognises that with the easy availability of information, the media constantly has to
grapple with what information should be published and what should be held back. The
Code provides that journalists have a sense of responsibility and should not hinder
public interests. In addition, to ensuring accuracy and fairness, the Code states that
respect of human rights, includes respect for human dignity, individual honour and
right to privacy. Right to privacy is acknowledged as a human right.
Japan does not have an information ministry or organs like the PCC in the U.K. or the
Press Ombudsman in Sweden. Apart from the Canon, the NSK has a code for marketing
of newspapers, an advertising code and the Kisha club guidelines.[36]
Japan in 2003 formulated the Personal Information Protection Act, which regulates
public and private sector. The Act, which came into e"ect in 2005, aims to ensure that
all personal data collected by the public and private sector are handled with care. The
Act requires that the purpose of collecting personal information and its use should be
specified, information should be acquired by fair means, any information should not be
supplied to third parties without prior consent of the individual concerned.

Netherlands
The right to privacy is protected under Article 10 of the Netherlands Constitution.
Further, the Article also provides for the enactment of Rules for dissemination of
personal data and the right of persons to be informed when personal data is being
recorded.
Netherlands also has the Netherlands Press Council which keeps the media in check.
The Code of the International Federation of Journalists and the Code of Conduct for
Dutch Journalists was dra!ed by the Dutch Society of Editors-in-Chief to establish
media reporting standards. These guidelines can be disregarded by the media only in
cases involving social interest.
The Code recognises:
That a person’s privacy should not be violated when there is no overriding social
interest;
In cases concerning public persons violation of privacy would take place, but they
have the right to be protected, especially, if that information is not of public interest;
The media should refrain from publishing pictures and images of persons without
prior permission of persons. Similarly, the media should not publish personal letters
and notes without the prior permission of those involved;
The media should refrain from publishing pictures and information of suspects and
accused; and
Details of criminal o"ence should be le! out if they would add to the su"ering of the
victim or his/her immediate family and if they are not needed to demonstrate the
nature and gravity of the o"ence or the consequences thereof.

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

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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 e"ect 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 competing rights of ‘public good’, ‘public interest’ and ‘State
security’, much of what constitutes public interest or what is private is le! to the
discretion of the media.

Notes

[1]The Radia Tapes’ controversy concerns recording of conversations between the

lobbyist Nira Radia and politicians, industrialists, bureaucrats and journalists with
respect to the 2G spectrum scam. The tapes were recorded by the Income Tax
Department. The role played by the media, especially some prominent journalists, in
scam has been questioned. A handful of magazines and newspapers have questioned
the media ethics employed by these journalists, whose recorded conversations are in
the public domain or have been published by a few political magazines. The publication
of the recorded conversations by a few media publications has received a sharp
reaction from the said journalists. They have accused those media journals of
unverified reporting and conducting a smear campaign against them.
[2]1975 AIR 865, 1975 SCR (3) 333.
[3](1994) 6 S.C.C. 632.
[4]AIR 1997 SC 568.
[5]AIR 1997 SC 568.
[6]AIR 1997 SC 568.
[7]International Covenant on Civil and Political Rights, Part III Art. 17. Available at:
http://www2.ohchr.org/english/law/ccpr.htm [Last accessed 20//04/2011].
[8]W.P. (C) 288/2009
[9]PTI, Media just turned me into a 'slut' in IPL row: Sunanda Pushkar, 23/04/2010
Available at http://articles.timesofindia.indiatimes.com/2010-04-
23/india/28149154_1_sunanda-pushkar-shashi-tharoor-ipl-kochi [Last accessed
20/04/2011].
[10]Vrinda Gopinath, "Got A Girl, Named Sue", 26/04/2010 Available at
http://www.outlookindia.com/article.aspx?265098 [Last accessed 20/04/2011]
[11]Interview with Senior Assistant Editor, Hindustan Times, on 18.04.11.
[12]Guideline 6 (i) Right to Privacy, Norm if Journalistic Conduct, PCI.
[13]Interview with a freelance photographer and a former Reuters photographer on
16.04.11.
[14]Kumar, Vinod, “Raped American student’s drink not spiked in our bar,” 16.04.09
Available at http://www.mid-day.com/news/2009/apr/160409-Mumbai-News-Raped-
American-student-date-drug-CafeXO-Tata-Institute-of-Social-Sciences.htm, Anon,
“Party pics boomerangon TISS rape victim” , 04 .05.09, Available at

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http://www.mumbaimirror.com/index.aspx?
page=article§id=15&contentid=2009050420090504031227495d8b4e80f [Last Accessed
April 20,2011].
[15]Interview with Abhinav Pandey, crime reporter with a leading newspaper, on
21.04.11.
[16]Interview with Swati Deshpande, Senior Assistant Editor (Law), Times of India, on
15.04.11.
[17]Crl.Misc.(Main) 3938/2003
[18]Ibid.
[19]Sidhartha Vashisht @ Manu Sharma vs State (Nct Of Delhi), Available at
http://www.indiankanoon.org/doc/1515299/.
[20]Ibid
[21]WP(Crl.) No.1175/2007
[22]Ibid
[23]Ibid
[24]Ibid
[25]NBA is a community formed by private television & current a"airs broadcasters. As
per the NBA website, it currently has 20 leading news channels and current a"airs
broadcaster as its members. Complaints can be filed against any of the broadcasters
that are members of NBA on whom the Code of Ethics is binding.
[26]For additional details, please refer to the website:
http://www.nbanewdelhi.com/authority-members.asp [Last Accessed April 20,2011]
[27]TNN, “'Full video will further embarrass Shakti', 15.03.2005 Available at
http://articles.timesofindia.indiatimes.com/2005-03-15/mumbai/27849089_1_sting-
operation-shakti-kapoor-film-industry.
[28]For more details please refer to the PCC website: http://www.pcc.org.uk/ [Last
Accessed April 20,2011].
[29]Singh, A., May 2008, “JK Rowling wins privacy case over son's
photos”http://www.telegraph.co.uk/news/uknews/1936471/JK-Rowling-wins-privacy-
case-over-sons-photos.html [Last Accessed April 20,2011].
[30]For more details, please refer to: http://www.kbkcl.co.uk/2008/03/privacy-law-the-
french-experience/ and http://ambafrance-us.org/spip.php?article640 [Last Accessed
April 20,2011].
[31]For more details, please refer to:http://www.ambafrance-uk.org/Freedom-of-
speech-in-the-French.html [Last Accessed April 20,2011].
[32]http://www.po.se/english/how-self-regulation-works [Last Accessed April 20,2011].
[33]Ibid.
[34]Please refer to this website for additional details:
http://ethicnet.uta.fi/sweden/code_of_ethics_for_the_press_radio_and_television and
http://www.po.se/english/code-of-ethics/85-code-of-ethics-for [Last Accessed April
20,2011].
[35]http://www.pressnet.or.jp/english/index.htm [Last Accessed April 20,2011].
[36]Kisha Clubs, are clubs where only a few media houses/newspapers have access to
public institution information. They have been criticised for its lack of openness and
encouraging monopoly on reporting.
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