Updated: Aug 16
Miguel De Cervantes had aptly quoted-“He that publishes a book runs a very great hazard, since nothing can be more impossible than to compose one that may secure that approbation of every reader.” With the divine developments in the legal arena, the “law” in the garb of the constitution has become one such reader.
With the emergence of electronic media, a legitimate expectation of a controlling body also arose, which till date remains an ‘expectation’. The press media has camouflaged itself in colour of freedom and misused this ordain of the constitution thus slapping the individual privacy and hindering away the golden relationship between media, privacy and law.
Freedom of expression constitutes one of the essential foundations of a free democratic society and guarantees not only dissemination of information and expression of ideas and beliefs "that are favorably received or regarded as offensive or as a matter of indifference, but also to those that offend shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broad mindedness without which there is no democratic society."
The right to privacy as an independent and distinctive concept originated in the field of tort law, under which a new cause of action for damages resulting from unlawful invasion of privacy was recognised. This right has two aspects which are but two faces of the same coin -
(1) the general law of privacy which affords as tort action for damages resulting from an unlawful invasion of privacy and
(2) the constitutional recognition given to the right to privacy which protects personal privacy against unlawful governmental invasion. The first aspect of this right must be said to have been violated where, for example, a person's name or likeness is used, without his consent, for advertising- or non-advertising- purposes or for that matter, his life story is written- whether laudatory or otherwise- and published without his consent.
The Universal Declaration of Human Rights in Article 12 states that, "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."Recently the press, especially the electronic media has been very enthusiastic to grab and report it even before the Police or other channels get to know about it. This investigative journalism is good but at the same time it is going out of hand. There is no way to regulate it or stop it.
Though we have the Press Council of India, which was established around twenty-two years before, the electronic media will not come under its regime. The PCI entertains more than 10,000 complaints a year, has no teeth and the purpose is defeated as it evokes no fear or sanction. Simply an apology is demanded from the press, if found guilty. These types of liberal approaches are not going to remedy the harm caused by press reporting. More stringent measures are to be adopted to curb the malady though self-regulation can operate as a useful and viable tool New Government policy The Government in its zeal to bring liberalization in media has allowed foreign direct investment into it. The policy brought in 2003, permits upto 26% in print media, while in broadcasting, it is allowed unto 100%. This is in a situation, where there is no law to control the tyranny of electronic media. With the doors open for the foreign media to invade India with their ideas and experiment with the Indian youth, the government is taking no urgent steps to bring in a regulation to control the widespread electronic media.
A study of the development of privacy traces back to Nihal Chand v. Bhagwan Devi in 1935, where the High Court recognized the independent existence of privacy from the customs and traditions of India. India even before independence became a member of UN and was also a signatory to the UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948 after gaining independence. The UNIVERSAL DECLARATION OF HUMAN RIGHTS was almost fully incorporated into the Indian Constitution. One of the exceptions to it was the giving no recognition to the concept of privacy.
The attacks of 26/11, which are capable of outraging us even after 10 years of their commission were one such instance where the nation united to pray for the victims and the trapped citizens. The electronic media at that very point of time broadcasted everything in and around the attack site. Great accolades and appreciation came its way for possibly bringing out the efforts of the defence agencies. Little could they fathom, that in their effort to broadcast everything, they became the easiest source of transporting the strategies to the agencies and the masterminds who easily guided their terror pawns to know well in advance, the acts of our soldiers. The security and integrity of the country was not only at stake but was served out in the plate of a so called “fundamental right”.
In Tata Press Ltd v.Mahanagar Telephone Nigam Ltd, the Supreme Court also included into freedom of speech and expression the right to advertise or the right of commercial speech. Before this decision, advertisements were not considered as part of the definition of free speech. This decision reflects the dilution in the already wide freedom of speech and expression.
It was in variance to the earlier limitation on this freedom, which was enunciated in HamdardDwakhana v. Union of India, in which the apex court observed that commercial advertisement does not fall within the protection of speech and expression as there is an element of trade and commerce in them. But in Tata case(Tata Press Ltd v.Mahanagar Telephone Nigam Ltd), Supreme Court stated that the advertising pays a large portion of the costs of supplying the public with newspaper. So for a democratic press the advertising subsidy is crucial. The court further observed that without advertising, the resources available for expenditure on reporting the ‘news’ would decline, which may lead to an erosion of its quality and quantity. In Hindustan Times v. State of U.P., the Supreme Court again reiterated the importance of advertising and its connection with the circulation of paper.
UNIVERSAL DECLARATION OF HUMAN RIGHTS gave privacy a foremost position in Article 12, while freedom of speech and expression found place only in Article 19. Article 19 was subject to conditions such as reputation, national security, and public order and of morals. In the Indian Constitution, the restrictions imposed on freedom of speech and expression in Article 19(2) was on the lines of libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of or tends to overthrow the state.
This clause was later amended by the 1st Amendment Act of 1951, and a new clause was inserted instead of the above clause. The new clause brought reasonable restrictions on the lines of security of state, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. This took away further, the grounds of restrictions in the earlier unamended clause i.e. libel and slander. Freedom of press was included in this right to speech and expression by the Apex Court in RomeshThapper v. State of Madras.
Here the Court held that this freedom includes right to propagate ideas including the right to circulate. All the above factors further gave impetus to press but at the same time the right of an individual to plead right to privacy against undue interference by press was completely denied as this right to privacy was not given an independent status as a fundamental right on the same footing as of freedom of press in the Constitution . The framers of the Constitution failed to imbibe the full spirit of UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948 by neglecting to recognize the right to privacy as a fundamental right.
In India the law applied in the electronic media is made even before the word electronic media came into existence. The cabinet decisions for new channels either in private or public sector are granted on political will. The income of the electronic media is from the advertisements. The characters in the advertisements are mainly human beings. The female figure is used to attract the customers. In spite of the fact that there are laws regarding the advertisements they are not effective upon the electronic media. Similarly the religion and the politics are widely using the media. There is no control over it. The regulatory problems faced by the electronic media in India were Constitutional, related to general laws, related to morality, based upon the rights mentioned in special laws (especially minors, women and alternatively abled).
The existing laws for control over electronic media in India are not sufficient for the regulation. People involved in the electronic media may have to approach different departments or ministries in order to obtain licenses. At the same time the penalty is very little comparing to the money involved in the electronic media. A new law is to be made in the area. Since it is ever growing new law shall be in the form of an Electronic Media Code containing broadcasting, the telecommunication and internet. The ingredients of new law are given by the end of the work. New law may be based upon the concerned court order, the existing statutes, need of the people and philosophy of the subject.
Author: Navin Kumar Jaggi
Co-Author: Siddhant Grover, 2nd Year, VIPS, GGSIPU.