Project Report On:

Privacy vis- a- vis Media; Need of

strict Social Media laws

UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB

UNIVERSITY, CHANDIGARH.

SUBMITTED TO: SUBMITTED BY:

Ms. Kajori Bhatnagar Deeksha
11/14, 7thsem
Section- A
B.A.LLB. (Hons.)
RTI project

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 ACKNOWLEDGEMENT

It is with profound gratitude and deep reverence that I have completed this
project today, as it would have not been possible for me to do so without the
indispensable guidance of my teacher, Ms. Kajori Bhatnagar who not only
encouraged me to go forward with this project report but also propagated all my
ideologies and interpretations about the same.

I’m also grateful to the many authors whose books and articles I have used as a
valuable resource for my work. I hope this project meets everyone’s
expectations.

Thank you

(Deeksha.)

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 TABLE OF CONTENTS

Introduction..................................................................................................4

Right to Privacy.............................................................................................5

Legal Framework in India..........................................................................6

Privacy and Freedom of Speech.....................................................................8

Phone Tapping and Privacy ...........................................................................9

Sting Operation and Right to Privacy............................................................11

Right to Privacy of Internet Users ..................................................................11

Social Media and Privacy...............................................................................11

Need of strict social media laws.....................................................................12

Bibliography..................................................................................................15

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INTRODUCTION:
Democracy is the rule of the people, a system which has three strong pillars -
the executive, the legislature and the judiciary. But as Indian society today tries
to stabilise on its three pillars, the guarantee of Article 19 (1) (a) has given rise
to a fourth pillar i.e. media. It plays the role of a conscience keeper, a watchdog
of the functionaries of society and attempts to address to the wrongs in our
system, by bringing them to the knowledge of all, hoping for correction. It is
indisputable that in many dimensions the unprecedented media revolution has
resulted in great gains for the general public. Even the judicial wing of the state
has benefited from the ethical and fearless journalism and taken suo motu
cognizance of the matters in various cases after relying on their reports and
news highlighting grave violations of human rights.

Thus, the existence of a free, independent and powerful media is the

cornerstone of any democracy, especially of a highly mixed society like India.
Media is a social instrument that is powerful enough to mould a society, to
develop or destruct it. In the present times, the lack of a properly defined system
of law regulating the media has given way to increasing incidences of infraction
of privacy of individuals and derailment from the true purpose of the media in
society. While insinuations made by the media on factual basis must be given
protection, the wrongful wielding of pen and power should be condemned.

Civilization is the progress toward a society of privacy. The savage’s whole

existence is public, ruled by the laws of his tribe. Civilization is the process of
setting man free from men.”1

The law relating to privacy is of recent origin and it recognizes an individual’s

right to be let alone. This right is not restricted merely to his physical being and
property but it also extends to his mind space. He possesses the right to control
the flow of information with him and keep it out of the purview of the public.
Before the advent of visual and electronic media the question of privacy was a
subtle one as newspapers had only a limited impact given the vast majority of
illiterate population. But with the modern media finding green pastures in India
the issue of privacy has gained importance. The lack of centralization which
existed prior to the internet age has changed since its onset by which now

1
Ayn rand: the fountainhead, (1943)

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startling amounts of personal information about an individual is accessible with
one tap on a button. The risk of information reaching the wrong hands has
become very high. There has been an unprecedented information revolution and
the regulatory mechanisms existent now to control the spread of information are
limited in many ways and have failed in curtailing the overstepping of the
media.

The right to freedom of speech and the right to privacy are the two sides of the
same coin. One person’s right to know and be informed may violate another
right to be left alone. Both of these rights are joined together- on the one hand,
there is a fundamental right to disseminate, receive information’s on the matters
of public interest while on the other hand, the right to safeguard the private life
of an individual to the extent that it doesn’t harm public duties or matters of
Public Interest.

RIGHT TO PRIVACY:
The term privacy has been described as the rightful claim of the individual to
determine to the extent to which he wishes to share himself with others and his
control over the time, place and circumstances to communicate with others. It
means his right to withdraw or to participate as he sees fit. It also means the
individual’s right to control dissemination of information about himself; it is his
own personal possession.2

Theoretically right to privacy is a vital element in any system of individual

rights designed to support the individual and to protect the core of individuality,
in relation of the individuals to the collective society. 3 Privacy thus is a broad
term, encompassing within it various aspects of individual life such as privacy
from press, unreasonable govt surveillance etc.

In India, the term privacy refers to use and disclosure of the information is only
applicable specifically to individuals. Since personal information is
manifestation of individual personality. The apex court in kharak singh v. State
of UP recognised the right to privacy as an integral part of right to life and
personal liberty under article 21 of the constitution.

2
A.C Breckenridge: The right to privacy (1971)
3
Thomas I. Emerson, Right To Privacy And The Freedom Of Press 337, Yale Law School Legal Scholarship
repository, 1979

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While, The nine-judge bench of the Supreme Court has unanimously delivered
its judgment in Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India
and ors. 4holding that privacy is a constitutionally protected right which not
only emerges from the guarantee of life and personal liberty in Article 21 of the
constitution, but also arises in varying contexts from the other facets of freedom
and dignity recognised and guaranteed by the fundamental rights contained in
Part III of the Indian constitution. The Judgment concludes that:

“Privacy includes at its core the preservation of personal intimacies, the sanctity
of family life, marriage, procreation, the home and sexual orientation. Privacy
also connotes a right to be left alone. Privacy safeguards individual autonomy
and recognises the ability of the individual to control vital aspects of his or her
life. Personal choices governing a way of life are intrinsic to privacy. Privacy
protects heterogeneity and recognises the plurality and diversity of our culture.
While the legitimate expectation of privacy may vary from the intimate zone to
the private zone and from the private to the public arenas, it is important to
underscore that privacy is not lost or surrendered merely because the individual
is in a public place. Privacy attaches to the person since it is an essential facet of
the dignity of the human being.”

The right to privacy is protected as an intrinsic part of the right to life

and personal liberty under Article 21 and as a part of the freedoms
guaranteed by Part III of the Constitution.5

 Legal Framework In India:

In India, there is no statutory enactment guaranteeing a general right of
privacy. The right to privacy in India has derived itself from two sources: the
common Law of Tort and Constitutional Law.

Privacy under the Constitution of India

Under the Indian Constitution, Article 21 is a fairly innocuous provision in

itself i.e. "No person shall be deprived of his life or personal liberty except
according to procedure established by law." However, the above provision has
been deemed to include within its ambit, inter-alia, the Right to Privacy - "The

4
Writ Petition (Civil) No. 494 of 2012, SC
5
As held in justice puttuswamy’s case

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 Right to be let alone"6 as the Apex Court termed it. The concept of right to
privacy finds its genesis in the case of Gobind v. State of Madhya Pradesh
wherein Justice Matthew of the Apex Court cited the Preamble of the
Constitution of India which is designed to "assure the dignity of the
individual".

On the other hand, Freedom of press is not expressly mentioned in Article 19

but has been held to flow from the general freedom of speech and expression
guaranteed to all citizens. This freedom is not absolute but subject to
reasonable restrictions mentioned in Article 19 (2) of the Constitution. Initially
it was implied for the press to not indulge in any unethical activity (infraction
of privacy) but with the increased professionalism, it seems it has forgotten
and remembers only its rights, but not the duties attached therein. Due to the
absence of privacy as one of the ground for reasonable restriction on freedom
of press (which seems necessary after seeing the nature of press) many-a-times
they escape from their misdeeds. Circumstances demand an effective and
adequate regulation. A kind of proper and harmonious balance between the
rights of citizens and the Press is need of the hour. There are also a few
statutory provisions contained in Cr. PC, 1973 (s.327 (1)), the Indecent
Representation of Women (Prohibition) Act, 1980 (s.3 & s.4), the Medical
Termination of Pregnancy Act, 1971 (s.7(1)(c)), the Hindu Marriage Act(s.36),
and the Juvenile Justice Act, which seek to protect women and children from
unwarranted publicity.

Privacy under the Common Law of Tort

Under the Common law, a private action for damages for unlawful invasion of
privacy is maintainable. The printer and publisher of a (newspaper) journal,
magazine or book are liable for damages if they publish any matter concerning
the private life of a citizen which includes his family, marriage, procreation,
parenthood, child-bearing, education etc. without his consent. Nevertheless, it
is subjected to the following exceptions:
1. When the publication is based on public records, including court records-
because the right of privacy no longer subsists once a matter becomes a
matter of public records.

6
R. Rajagopal v. State of TN, AIR 1995 SC 264( India)

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 2. When the offending publication relates to the acts and conduct relevant to
discharge of the official duties of a public servant. - Unless the publication
is proved to be false or actuated by malice or reckless disregard for truth.

Sometimes, when the privacy action is covered under the Tort of Defamation,
it is insufficient to protect the individual’s privacy. There is a fundamental
distinction between defamation and the privacy tort of public disclosure of
embarrassing private facts. Truth is an (absolute) defence to the former, but not
to the latter. This difference is crucial. This is the reason behind need of
specific law protecting privacy of individual.

 PRIVACY AND FREEDOM OF SPEECH :

Extent of freedom of press and right to privacy of individual is one of such

aspect, which needs to know its line of control and consequences of its
overstepping. In India, courts are more cautious while deciding cases pertaining
to infringement of rights to privacy of individuals by public authority or press.
India doesn’t have a very specific or codified law on the right to privacy.
Nevertheless it has acquired constitutional recognition through case laws and
thus was carved out by the creative interpretation of the fundamental right to
life under article 21 of the constitution.

Whenever a matter of invasion of privacy reaches the court, journalists put

forward a common defence that disclosure was privileged because it was
newsworthy and try to cover it with the ‘public interest’ blanket defence, where
more often than not, courts too become helpless.

The main reason behind this is a absence of a statutory recognition of the right
to privacy and weak regulating guidelines for media. There is no doubt that
newspapers do a commendable job in bringing certain long buried issues again
in forefront. However it needs to be realised that even while reporting those
news, some amount of restraint must be exercised. Every titbit of information
about individuals cannot and shouldn’t be forced into the category of news. As
in the case of R. Rajagopal @R.R Gopal @ Nakkheeran gopal and A. Kamraj
v. J.Jayalalitha and Mrs. N. Sasikala7, a recent acse of publication of private
affairs of Tamil Nadu’s chief minister Ms. Jayalalitha, in a magazine without
her permission. The Madras High Court held that: “citizen has right to

7
AIR 2006 Mad. 312( India)

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 safeguard privacy of his own his family and none can publish anything in
reference to above matters without her/his concern”

In a another case R. Rajagopal and Another v. State of Tamil Nadu and

Others8 the Supreme Court of India has held that freedom of the press extends
to engaging in uninhabited debate about the involvement of public figures in
public issues and events. But, as regards their private life, a proper balancing of
freedom of the press as well as the right of privacy has to be performed.

In Arushi talwar murder Case the Supreme Court on 9thAugust 2010 cautioned
media against their irresponsible reporting intruding privacy and affecting the
honour of crime victim, in Aarushi murder case. Not even a single newspaper
thought before publishing the news about the deceased’s character and relations
between her and her domestic helper. The media went into tailspin and did
irreparable damages to her and her family. There are other instances well where
media consciously appears to overstep its own ethics, and perpetrate into the
core private zone of individuals life.
It necessary to remember that the freedom of press is founded on public interest
and cannot, therefore survive if it offends others interest of magnitude

The Supreme Court touched the rights of individual to privacy vis- a vis
invasion by journalists in Sheela Barse v. Union of India9, Prabha Dutt v.
Union of India10 and also in State v. Charulata joshi11. In all these cases, the
journalists sought permission from the Supreme Court to interview and
photograph the prisoners. Although, the issue of privacy was not directly dealt
with, the court implicitly acknowledge the right to privacy by holding that the
press had no absolute right to interview or to photograph a prisoner but could
do so only after the required permission.

 PHONE TAPPING AND PRIVACY

Right to privacy is affected by new technologies. Right to privacy relating to a

person’s correspondence has become a debating issue due to the technological
developments. There are cases of intercepting mails and telephonic
communication of political opponents as well as of job seekers. Section 5(2) the

8
AIR 1995 SC 264( India)
9
1987) 4 SCC 373
10
(1982) 1 SCC 1
11
(1999) 4 SCC 65(India)

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Indian Post Office Act and Section 26(1) the Indian Telegraph Act empower the
Central and State Governments to intercept telegraphic and postal
communications of the occurrence of public emergency in the interest of public
safety. In R.M. Malkani v. State of Maharashtra12, the Supreme Court
observed that the Court will not tolerate safeguards for the protection of the
citizen to be effected by permitting the police to proceed by unlawful or
irregular methods. Telephone tapping is an invasion of right to privacy and
freedom of speech and expression and also Government cannot impose prior
restraint on publication of defamatory materials against its officials and if it
does so, it would be violative of Art. 21 and Art. 19(1)(a) of the Constitution.
Justice Kuldip Singh opined in People’s Union for Civil Liberties v. Union of
India13 that right to hold a telephone conversation in the privacy of one’s home
or office without interference can certainly be claimed as right to privacy. In
this case Supreme Court had laid down certain procedural guidelines to conduct
legal interceptions, and also provided for a high level review committee to
investigate the relevance for such interceptions. But such caution has been
thrown to winds in recent directives from Government bodies as is evident from
phone tapping incidents that have come to light.

In State of Maharashtra v. Bharat Shanti Lal Shah14 the Supreme Court said
that interception of conversation though constitutes an invasion of an
individual’s right to privacy but right can be curtailed in accordance with
procedure validly established by law. Court has to see that the procedure itself
must be fair, just and reasonable and not arbitrary, fanciful or oppressive. An
authority cannot be given an untrammelled power to infringe the right to
privacy of any person15. In Neera Radia tapes case16to use phone tapping as a
method of investigation in a tax case seems to be an act of absurd overreaction.
For so many journalists, politicians and industrialists to have their phone tapped
without a rigorous process of oversight represents a gross violation of basic
democratic principles.

12 AIR 1973 SC 157.

13
AIR 1997 SC 568.
14
(2008) 13 SCC 5.
15
Directorate of Revenue v. Mohd. Nisar Holia, (2008) I SCC (Cri) 415.
16
. The times of India, Allahabad Times, 2010

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 STING OPERATION AND RIGHT TO PRIVACY

The Sting Operations did by the media in India covers mostly the working of
the public servants in their offices. A sting operation, as reported by the law
enforcement agencies, is an operation designed to catch a person committing a
crime by means of deception. A typical sting will have a law-enforcement
officer or a cooperative member of the public, play a role as criminal partner or
potential victim and go along with a suspect's actions to gather evidence of the
suspect's wrongdoing. The carrying out of a sting operation may be an exercise
of the right of free press but it carries with it an indomitable duty to respect the
privacy of others. The individual who is the subject of such a press or television
‘item’ has his or her personality, reputation or career dashed to the ground after
the media exposure. He too has a fundamental right to live with dignity and
respect and a right to privacy guaranteed to him under Article 21 of the
Constitution.

Sting operations recently, have been the eye storm in high profile cases. There
is no legal mandate for conducting sting operations in India17. Being essentially
a deceptive operation, though designed to nab a criminal, a sting operation
raises certain moral and ethical questions. A sting carried in public interest had
the approval of honourable supreme court in R.K Anand v. Registrar, Delhi
HC18 though there are no clear legal directions to be applied in all other cases of
invading privacy infringements.

 RIGHT TO PRIVACY OF INTERNET USERS

Internet users can protect their privacy by taking actions that prevent the
collection of information. Most people who use the Internet are familiar with
tracking cookies. These small stores of data keep a log of your online activities
and reports back to the tracker host. The information is usually for marketing
purposes. To many Internet users, this is an invasion of privacy.

 SOCIAL MEDIA AND PRIVACY:

Social media is an internet based form of communication. Many other forms of

social media like blogs, micro-blogs, wikis social networking sites, widgets,
virtual worlds also exist. But social networking sites such as Facebook, Twitter,

17
Rajat Prasad v. CBI, CA No. 747/2010, decided on 24 April 2014 (India)
18
(2009)8 SCC 106 (India)

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WhatsApp, Orkut and Myspace have become voguish in the past few years. But
in order to use a social networking site and check other people posts the person
has to first create a profile. The main purpose of these social networking sites is
to establish a kinship in the virtual world. But little did the users know that this
boon was accompanied by crime too. it is us who have signed the deal with the
devil and now our privacy has been compromised. IP address, key words used
in searches, websites visited which seem harmless, from information that we
share on social media, to online transactions, to cookies collecting user
browser history, to mobile registration- personal details about an individual is
engendered by each use of internet. The site instantly records our personal
details like in Amazon.in case. They do it so because, the more personal
information they provide, the more attractive they are to potential advertisers.

As a result, cases of identity thefts, sexual predators, unintentional fame, cyber

staking and defamation have started to gain focus. Scams such as koobface,
who stole personal information of Facebook users and give it to wrongful
people, have also been reported. Version 5 of HTML code is reported to
provide advertising companies access to users online activities such as texts,
photographs, emails and many more. Usually, youngsters are the ones who
easily fall prey. Nowadays, they don’t even hesitate to share their personal
details with individuals whom they don’t even know. This happens due to the
lack of enough mental maturity and capacity to judge right and wrong. As a
result these sexual predators and identity thieves are easily able to hunt them
down.

NEED FOR STRICT SOCIAL MEDIA LAWS:

social media is basically a software designed primarily to facilitate social

interaction – as the key to drawing the public online. This include the networks
where people around the world meet, compete and collaborate, and many more.
In the internet age the technology is so centralised and easily accessible that on
one tap on a button could throw up startling amount of information about an
individual. Techniques such as data mining ensure that every bit of valuable
information is extracted and logged. Data matching enables linkages to be
made between the contents of previously uncorrelated data banks. These are
somehow a reasonable price to pay for the services of social media.

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Every time you log on to the internet you leave behind an electronic trail.
Websites and advertising companies are able to track users as they travel on the
internet to assess their personal information, preferences, habits and life styles.
this information is then used to target the individual customers

Employee privacy was under siege: employers routinely use software to access
their employee’s emails and every move of the employee. Field sales
representatives have their movements tracked by the use of location based
tracking system in new wireless phones. The availability of recorders on mobile
phones means that anyone could be clicking you or recording your conversation
without you knowledge.

The is no regulations in India specifically concerning the crimes regarding the

social media such as WhatsApp, online payment sites etc. But there are
regulations like the IT act which deals with cybercrimes. Few provisions of
which are:

 Section 66A of the IT Act has been enacted to regulate the social media
law India. This section clearly restricts the transmission, posting of
messages, mails, comments which can be offensive or unwarranted. The
offending message can be in form of text, image, audio, video or any
other electronic record which is capable of being transmitted. The
Supreme Court in Shreya Singhal and Ors. vs Union of India, struck
down Section 66A of the Information & Technology Act, 2000. The
ruling found the Cyber law provision to be open-ended, vague and
unconstitutional owing to the restriction it caused to the Indian citizens’
right to free speech.
 S. 2(1)(ha) of IT Act defines communication device include all phones
and personal devices used for communication purpose.
 Section 2(1)(w) of IT Act define Intermediary means a person who on
the behalf of other person receive the records, stores it or sends it. It
include telecom providers, ISP’s, online payment sites, search engines.
The liability of these intermediaries is given under Section 79 of The
Information Technology Act which when read along with the
Information Technology (Intermediary Guidelines) Rules, 2011, provided
an affirmative defense to the intermediary if the associated conditions of
due diligence under Section 79 are followed.

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 The Rules, 2011 provide that the intermediary, in its agreement with
users, shall prohibit publication of certain types of content that is
grossly harmful, harassing, defamatory, obscene, hateful, racially or
ethnically objectionable, unlawful in any manner, etc.

 Section 69A provides for the power to central govt. of blocking access to
information or websites in the interest of sovereignty or integrity of
India, defence of India, security of the state, friendly relations with
foreign states or public order or preventing incitement to the commission
of any cognizable offence relating to above or for investigation of any
offence.
 In case of emergency nature, provision is provided under rule 9(2) of IT
rules,2009 that the Secretary, Department of Information Technology
may, if it is necessary and justifiable for blocking for public access of any
information, after recording reasons in writing, can block the access
without giving opportunity of hearing to person holding such info.

SUGGESTIONS:

1) India owns social networking sites should have their own compliance to
the Indian IT laws.
2) Action should be taken by the intermediaries against the inappropriate
content before broadcasting or publishing of such content
3) Some general rules of publishing should be there at world level.
4) Proper concept of human review should be there before publishing a
content
5) It has become very important that the subscribers should be given an
option as to whether they want to share their data or not.
6) The application developers should shift from data-centric approach to a
consumer-trust centric approach
7) users should be given the option to opt out of specific features instead of
a singular ‘I Agree’ button
8) The principle of data minimisation should be adopted.

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BIBLIOGRAPHY

1) Selections from CQ Researchers, Issues in Media, edn. 3 rd, Sage

Publications
2) Madhavi Goradia Divan, Facets of Media Law, edn. 1st, 2006,
eastern book company
3) www.legalserviceindia.com
4)www.supremecourtofindia.nic.in
5)www.legalblogger.blogspot.in
6)www.nalsarpro.org
7)www.lawctopus.com
8)www.indianjournals.com

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