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Ground Reality Of The Right To Privacy In India Vis-A-Vis USA And UK

There were recent report in Hindustan Times on August 26 titled 'Kobe widow awarded dollar 16 million for invasion of privacy by publishing crash photos'. The brief facts are that basketball star Kobe & his 13 year old daughter Gigi along with other victims were killed in a helicopter crash and the Los Angeles County for deputies and firefighters shared the grisly photos of Kobe, Gigi & other victims. The photos were shared to the sheriff and also their colleagues.

This act of publicly sharing the photos of Kobe & Gigi compounded the agony of the grief stricken widow of Kobe. The Court held that this act amounted to violation/invasion of the Right to Privacy and awarded 16 million dollars compensation to her. The co- plaintiff was also awarded dollar 15 million. This report elucidates the true meaning/connotation of the Right to Privacy in USA.

On the contrast, in our country where Right to Privacy has been declared Fundamental Right by a 9 member Constitution Bench of the Supreme Court, Media has recently flooded the photos of Sonali Phogaat pre & post alleged murder giving all intricate details of her lifestyle & affairs. It would not be out of place to remind the photos & stories of suicide/murder of film hero Sushaant Singh Rajput were on the TV screens for more than a month after the incident.

In order to increase TRP, the media tries to sensationalize the tragic events and publicize the personal life of the victims. Recently the photographs of the accident and also the bruised body of business tycoon Cyrus Mistry, who died in a road accident, were made public through media. This again is blatant violation of the right to privacy. Probably freedom of Press has been given such a wide sweep that it transgresses into the Right to Privacy.

It is true that Article 19(1)(a) of the Indian Constitution gives freedom of speech and expression which undisputingly encompasses freedom of press. But it should be borne in mind that the Constitution Bench in Puttaswamy has acknowledged the existence of Right to Privacy as an extension of the fundamental rights enshrined under Articles 19 and 21 of the Constitution and as an element of human dignity. Thus, post Puttaswamy verdict in 2017, the rights of the Press have been fettered and a harmonious conjunction is needed between the Right to Privacy of an individual and the Right of the Press.

It is relevant to understand the true meaning of the Right to Privacy in our country vis-a- vis USA & UK. It also needs to be understood as to which acts tantamount to invasion/violation of this invaluable right of privacy. Invasion of privacy can be legally defined as an unjustifiable intrusion into the personal life of another without his/her consent.

Right to Privacy in USA:
The four common types of invasion of privacy are as follows:
  • Appropriation of Name or Likeness
    Appropriation of name or likeness implies protection of one's right to control the use of his own identity for business like unauthorised use of a person's picture or name without his authority/consent.
  • Intrusion upon Seclusion
    Intrusion upon seclusion implies protection of one's right to privacy while he/she is in solitude or seclusion. For example, if a neighbour peeks through someone's window or takes pictures, it tantamount to violation of right to privacy.
  • False Light
    False light laws warrant protection of one's right to not have misleading or damaging information about oneself, which may be true, publicly disclosed.
  • Public Disclosure of Private Facts
    This implies protection of one's right to keep the information of one's private life from becoming public. Disclosure of facts about a person's health, sexual conduct, or financial troubles is undoubtedly an invasion of privacy.
An important question that creeps into the mind is whether one can move to the courts seeking compensation for the emotional and mental distress caused as a result of the violation of Right to Privacy and also for the financial and/or the reputational harm so caused.

The following are examples of invasion of privacy against which legal action can be taken in USA:
  • Illegally intercepting calls;
  • Snooping through someone's private records;
  • Taking photos or videos of someone inside their home or a private place without their knowledge or consent;
  • Incessant unwanted phone calls;
  • Publicly disclosing private information about someone that has caused damage or injury
  • Publicizing a matter regarding another's private life.
However, Right to Privacy in the present digital age has posed a challenge wherein a balance is required between the national security/ terrorism on one hand and individual privacy on the another.

The right to privacy jurisprudence in USA is quite similar to the one in Indian in as much as there is absence of an explicit right to privacy in the Bill of Rights of USA and in Part III of the Indian Constitution.

It is trite to refer to the essay by Justice Louis D. Brandeis and Justice Samuel D. Warren on the Right to Privacy which defines Right to Privacy as "the right to be let alone." This definition outlines the importance of the right to privacy as a right free from unwanted intrusion in one's own freedom and liberty. The US Supreme Court has also laid down tests, like the test for 'reasonable expectation of privacy' that have been used to scrutinize an infringement of privacy.

In the United States, the right to privacy has been carved out of various rights, including the Fourth Amendment, Fourteenth Amendment, and the Ninth Amendment. The US Supreme Court upheld an illegal search and seizure as violative of the indefensible right to personal security, personal liberty, and private property in Boyd v. United States in 1886 which held thus:

"The principles laid down in this opinion affect the very essence of constitutional liberty and security� they apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offence, but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, � it is the invasion of this sacred right �"

The right to privacy and the transformation from the right to privacy to being about people instead of property was complete in 1965 when in the celebrated case of Griswold v. Connecticut, right to privacy was recognized as emanating from the 'penumbras' of the Fourteenth Amendment.

"This judgment upheld the right to access to contraceptives for a woman, and stated that the right to privacy is an intrinsic part of an individual's private and personal life, and hence, the State should not interfere in such private matters of family and reproduction."

This stance was further elaborated in Roe v. Wade in 1973 where the Supreme Court held that a woman has a right to terminate her pregnancy, and an absence of such a right would be violative of the Fourteenth Amendment, and right to privacy as enunciated in Griswold v. Connecticut.

In a landmark judgment of 2015 in Obergefell v. Hodges, the Supreme Court of USA remarked in relation to 'sexual orientation' that the state has no position in invading upon the 'foundations of the family life' of an individual. With this judgment, the Supreme Court granted the right to same sex couples to marry and upheld the cardinal and core principle of right to privacy.

The theme of balancing privacy rights of an individual with the duty of the state to ensure public order is spelt out in a number of judgments of the US Supreme Court. In Stanley v. Georgia, in 1969, the US Supreme Court decided that a law cannot prosecute people for being in possession of obscene material in their own house, and emphasised on the fundamental right to be free from unwanted governmental intrusion into one's privacy, except in very limited circumstances.

It is trite to refer to Riley v. California, in 2014 wherein the search of an individual's cellphone during a warrantless arrest was also deemed as an unconstitutional search and seizure of the digital content. The Court held thus:

"Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans "the privacies of life"� the fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought."

Right to Privacy in UK:
Now let us discuss the Right to Privacy as it exists in UK. It is apposite to refer to Article 8 of Human Rights Act, 1998 which deals with Respect for your private and family life. It specifically protects one's right to respect for his/her private life, family life, home and his/her letters, telephone calls and emails etc. This Article gives the right to live one's life privately without any government interference.

The courts in UK have interpreted the concept of 'private life' very broadly. It covers things like your right to determine your sexual orientation, your lifestyle, and the way you look and dress. It also includes your right to control who sees and touches your body. The public authorities cannot leave you undressed in a busy ward or take a blood sample without your permission. The concept of private life also covers the right to develop your personal identity and to make friendships and other relationships and participate in essential economic, social, cultural and leisure activities.

This right to privacy in UK means that media and government can be prevented from interfering in your life. It also means that personal information about you like official records, photographs, letters, diaries and medical records etc. should be kept securely and not shared without your permission, except in exceptional circumstances. Under this invaluable right, every citizen of UK has the right to enjoy family life without interference from government. It is pertinent that 'Family life' in UK includes the relationship between an unmarried couple, an adopted child and the adoptive parent, a foster parent and foster child.

However, the right to privacy in UK is not unfettered. There are situations when the government/public authorities can interfere with the right to private and family life, home and correspondence. This is only allowed where the authority can show that its action is lawful & necessary in order to protect national security, public safety, disorder, crime & to protect the rights and freedom of other people.

It is apposite to refer to the case of Goodwin & I v United Kingdom [2002] wherein the European Court of Human Rights explored issues for transsexual people in relation to their rights to private life and to marry. The judgment is a landmark decision for the treatment of transsexual people, as this class was not been recognised in UK law for the purposes of marriage. The Court held that this treatment violated both the right to private life and the right to marry. Consequently, the UK Government later introduced the Gender Recognition Act 2004, creating a mechanism to meet the discrimination.

Right to Privacy in India:
In our country as early as in 1954, an eight member Constitution Bench of the Apex Court in M. P. Sharma & others vs. Satish Chandra, District Magistrate, Delhi & others 1954 AIR 300, 1954 SCR 1077 & again in 1964, a six member Constitution Bench of the Apex Court in Kharak Singh vs. State of Uttar Pradesh (1964) 1 SCR 332 repelled the plea of fundamental right to privacy and held that the right to privacy is not a guaranteed right under the Constitution of India. However, with the unanimous judgment of the 9 member Constitution Bench of the Apex Court in 2017 in Justice K.S. Puttaswamy (Retd.) and Another v. Union of India and Others, (2017) 10 SCC 1, the Court unanimously acknowledged the existence of Right to Privacy as an extension of the fundamental rights enshrined under Articles 19 and 21 of the Constitution and as an element of human dignity overruling the earlier judgments in this regard. Thus, it is no more res integra that Right to Privacy is a fundamental right in our country.

It would be apropos to refer to the case of the Apex Court in R. Rajagopal vs State of T.N 1994 SCC (6) 632 wherein the Apex Court scope elucidated the Right to privacy thus:

'The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical.

If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others.

We are, however, of the opinion that in the interests of decency (Article 19(2)) an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media."

There is no specific law of torts in our country. The law of torts is based on the principles of 'common law' which is mainly the English law of torts. The application of the law of tort is an applied selectively in Indian courts keeping in mind if it suits the circumstances of Indian society. Tort law in India is primarily governed by judicial precedent as in other common law jurisdictions, supplemented by statutes governing damages, civil procedure, and codifying common law torts.

Thr Courts have dealt with different situations wherein interference was sought for violation of Right to Privacy under Article 21 of the Constitution. It would be apposite to refer to Rayala M. Bhuvaneswari vs Nagaphanender Rayala AIR 2008 AP 98 decided by the Andhra High Court on 20 December, 2007. It was held by the High Court while dealing with a Divorce case that by tapping the conversation of the wife with others is violative of her valuable Right to Privacy under article 21 of the Constitution and such an evidence is inadmissible in law.

It is apropos to refer to the Apex Court judgment in People's Union of Civil Liberties (PUCL) v. Union of India 1971 (1) SCC 301 wherein the Apex Court considered a Public Interest Litigation to curb indiscriminate telephone tapping. The Court held that a telephone conversation is an important facet of a man's private life and the right to privacy would certainly include a telephone conversation in the privacy of one's home or in the office. The Apex Court held thus:

"Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man's life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. 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 Constitution of India unless it is permitted under the procedure established by law."

In Mr. X v. Hospital Z (1998) AIR 1999 SC 495, (1998) 8 SCC 296 it was laid down that if there is a conflict between two fundamental rights including the right to privacy then the right that furthers public morality or public interest would be enforced. The main question posed before the Apex Court was whether the Hospital could be held guilty of disclosing that the appellant was suffering from Aids and the same violated The Right to Privacy of the Appellant. The Court in the said case held thus:

"This is apart from, and, in addition to, the Fundamental Rights available to her under Article 21, which, as we have seen, guarantees "Right to Life" to every citizen of this country. This right would positively include the right to be told that a person, with whom she was proposed to be married, was the victim of a deadly disease, which was sexually communicable.

Since "Right to Life" includes right to lead a healthy life so as to enjoy all faculties of the human body in their prime condition, the respondents, by their disclosure that the appellant was HIV (+), cannot be said to have, in any way, either violated the rule of confidentiality or the right of privacy. Moreover, where there is a clash of two Fundamental Rights, as in the instant case, namely, the appellant's right to privacy as part of right to life and Ms. 'Y's right to lead a healthy life which is her Fundamental Right under Article 21, the RIGHT which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral considerations cannot be kept at bay ..........."

It would be appropriate to refer to the Madras High Court case in R. Sridhar vs R. Sukanya And Ors. (2005) 1 MLJ 214 decided on 29 October, 2004 wherein the Court applied the ratio of the Apex Court in Gobind v. State of Madhya Pradesh and Anr., (1975) 2 SCC 148 concerning the right to privacy and held that in case of marital dispute under the Hindu marriage act 1955 the proceeding in Court shall be held in camera wherein public should not be permitted in the court room during the proceedings of the case in order to maintain the right to privacy and therefore restrained the media from reporting the case.

The right to privacy in our country has a large ambit. One important right under the ambit of right to privacy is the right to procreate, also known as "the right of reproductive autonomy". The right to use condoms, the right of a woman for abortion fall within the ambit of right to privacy. It would be trite to refer to State of Maharashtra v. Madhukar Narayan Mardikar AIR 1991 SC 207wherein the Apex Court protected the right to privacy of a prostitute holding that even a woman of easy virtue is entitled to her privacy and no one can invade her privacy as and when he likes.

Right to Information Act, 2005 also honours the Right to Privacy. It would be pertinent to refer to Section 8(1)(j) in The Right To Information Act, 2005 which reads as under:
(j) information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.

It would be apropos to refer to Girish Ramchandra Deshpande vs Cen.Information Commr.& Ors. (2013) 1SCC 212 wherein right to information and right to privacy were pitted against each other and the Apex Court held thus:

"The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual.

Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right."

It is often argued that Aadhaar scheme which collects personal details and biometrics is a breach of privacy and the concerns about rising data leaks of sensitive information online cannot be denied. In September 2018, the Apex Court upheld the overall validity of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 and held that the Aadhaar scheme does not violate citizens' Right to Privacy'.

It is relevant that a constitution bench in January 2021 affirmed the verdict delivered in September 2018 when it dismissed the review petitions. However, it cannot be denied that submitting copy of Aadhaar cards to various departments is vulnerable to the individual in as much as his personal details and thereby his right to Privacy is eroded.

​The Information Technology Act 2000​ contains two specific sections which deal with the right to privacy. Section 43A deals with the usage of sensitive personal data and provide the payment of the individual influenced by illegitimate misfortune or gain. Section 72A of the said Act mandates imprisonment for a period up to 3 years or a fine up to Rs 5,00,000 or both for an individual who causes improper misfortune or increase by revealing individual data of someone else without their consent.

It is relevant that the Government introduced Data Privacy And Protection Act, 2017 in the Parliament but the same was withdrawn. The legislation was aimed at protecting the digital privacy rights of the country's burgeoning base of internet subscribers and a nascent data economy. It also included provisions for regulating social media & hardware companies. New Bills were later introduced but have not yet been passed by the parliament as the same do not comprehensively address the requirements of the country's changing technology landscape.

One very important violation of right to privacy is seen in unwanted telephone/mobile calls. There is a spate of unwanted calls at odd hours. One is sometimes often awoken at midnight by a recorded call of an insurance company, housing loan company or a developer. Repeated calls are by itself a violation of one's right to privacy. There should a notified code for phone calling particularly for sales promotion. People should also understand the need to adapt to safe calling time. Everyone calling should restrict the number of rings on the other's phone/mobile so that it does not discomfort or disturb them.

Rights to liberty and freedom of expression cannot survive if the right to privacy is compromised. It is indeed astonishing that there is no judicial backing, as yet, against violation of right to privacy. In our country, there are various legislations which contain some provisions which relate to privacy such as Indian Evidence Act, Information Technology Act, Indian Penal Code, Criminal law, Indian Telegraph Act, Indian Easement Act, Family law etc.

But the scope of Privacy has widened manifold and there are various aspects of privacy such as privacy of space, privacy of body, privacy of information, privacy of choice, privacy of data, privacy of medical condition etc. etc. which has evolved over the passage of time. The Government should legislate a robust personal data protection mechanism to address the privacy concerns of individuals in this digital age. There has to be protection to citizens against surveillance and there must be impartial investigation and the option of criminal prosecution for gross violation of the right to privacy.

A balance must be maintained to protect privacy and to promote national interest. Moreover, the Right to Privacy should not only be limited against the State but also aginst the private corporations which collect citizen data. There is urgent need for stringent legislation to tackle the various complex issues of privacy in our modern digital world where life of every individual is under scanner on land, water & sky due to technological advancements and consequences of social media explosion.

Written By: Inder Chand Jain

Email: [email protected], Ph no: 8279945021

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