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The line between right to privacy and freedom of speech in the digital media

November 04, 2021
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This article has been written by Sneha Jaiswal, currently pursuing BA LLB (Hons.) from Christ (Deemed to be University), Delhi NCR. The notions of the Right to Privacy and Freedom of Speech and Expression are discussed in this article. It also seeks to draw a line between the two notions by emphasizing the necessity of balance.

Introduction 

Surveillance over private information or data by any individual, government, or other entity is an infringement as well as a breach of the fundamental Right to Privacy. The government, for instance, deploys tools to monitor and restrict anti-government websites. Security services listen in on activists’ phones and examine their communications. States reportedly complained about subversive content on various platforms like Facebook’s wall, as a result of which the company took it down. User data, including IP addresses, location data, and communications logs, is sent up to law enforcement authorities by the search engine. The government monitors phone calls and internet users in bulk. 

Each of these activities jeopardizes an individual’s ability to express oneself as well as their right to private life and communications. In this sense, privacy and freedom of speech are two sides of the same coin, each one is necessary for the other’s enjoyment. To establish and communicate one’s political, religious, or ethical ideas freely, one needs an independent and private place free from government, private sector, or other citizens’ intrusion. Infringements on the right to privacy, such as physical or online surveillance, monitoring of communications or activities, and government intervention into personal, family, or home matters, restrict an individual from enjoying their freedom of expression.

The article serves as a timely reminder of the significant ramifications of surveillance for civil rights, especially considering the frequency with which governments spy on journalists, hack into emails, or demand user data from social media platforms. This broad surveillance is much more than merely acquiring data on citizens. It’s also about regulating our behavior and words, as well as concealing ideas and thoughts.

The line between public and private thoughts and expression has blurred as a result of technological advancements; courts throughout the world are grappling with how to classify social media thoughts and blogs, as well as how to look upon data like location, IP addresses, and cookies. Today, more than ever, privacy and freedom of speech are tightly linked; a violation of one may be both the cause and the result of a violation of the other.

An unbreakable bond between the Right to Privacy and Freedom of Expression in the digital age

In the digital era, freedom of expression and privacy are mutually reinforcing rights. Both are necessary foundations for free and democratic societies, as well as one of the most basic prerequisites for their growth and self-fulfillment. Freedom of expression and opinion must be recognized and maintained in order for democracy, accountability, and good government to prosper. The Right to Privacy is also a significant shield against governmental and corporate authority in the modern-day.

While freedom of expression is essential for diverse cultural expression, creativity, and innovation, as well as the development of one’s personality through self-expression, the right to privacy is equally important for ensuring the individuals’ autonomy, facilitating the development of their sense of self, and enabling them to form relationships with others. In order to practice true freedom of speech, particularly online, privacy is also required. Individuals who lack privacy are unable to think and talk freely, as well as develop their voices.

Individuals would be unable to build their sense of independence without freedom of expression. Respect and preservation of human dignity, as well as people’s capacity to live freely and interact with one another, are at the heart of the protection of fundamental rights. Simultaneously, one person’s right to free expression may infringe on another’s right to privacy, and vice versa. Digital technologies heighten this tension. While digital technologies have considerably expanded the possibility for abuses of the right to privacy on a scale historically unprecedented, they have also greatly enhanced the opportunity for freedom of speech and information sharing.

Personal information may be gathered and made available across borders on an unprecedented scale and at a low expense for both corporations and authorities, digital technologies pose major challenges to the enforcement of the right to privacy and associated rights. Simultaneously, the application of data protection laws and other measures to preserve the Right to Privacy might have an excessive impact on legitimate speech.

The rights to freedom of expression and privacy are essential foundations of an open and democratic society, as well as basic conditions for its progress and enjoyment of other human rights and fundamental freedoms; recognizing that the protection of the Right to Privacy is a necessary precondition for the meaningful exercise of the right to freedom of expression.

Conflict between the Right to Privacy and Freedom of Speech and Expression

The Right to Privacy and Freedom of Expression are quite often interrelated rights; however, they might come into conflict in certain circumstances, such as when privacy claims are used without justification to prevent the dissemination of information about individuals in order to limit reporting on matters of public interest and to avoid public scrutiny, or deliberately mislead others. At the same time, acknowledging that the unwarranted revelation of private information may impinge severely on the Right to Privacy, particularly of individuals in vulnerable situations.

In order to promote a transparent framework for the protection of both freedom of expression and privacy rights wherever they conflict particularly in online space, one must take into consideration the relevant provisions of the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the African Charter on Human and Peoples’ Rights, and the American Convention on Human and Peoples’ Rights;  the European Convention on Human Rights and the EU Charter of Fundamental Rights and Freedom.

The Internet is a global resource that should be managed in the public interest. Digital technologies have greatly enhanced freedom of expression and access to information while also posing significant challenges to the protection of individuals’ right to privacy and personal data. There are various issues regarding the serious risks posed to the right to privacy of an individual and their personal data when enormous data is released for societal benefits.

Importance of data protection concerning the Right to Privacy

Individuals must be involved in decisions about their data, and states and companies collecting and recording personal data must be transparent about the data they hold, follow fair and lawful processes for the collection, use, retention, and security of that data, and ensure that personal data collected for one purpose is not used for another. The data protection legislation may be misused in order to prevent, halt, or limit the lawful public conveyance of personal data at the expense of personal data access and the greater public interest. 

Freedom of Speech in India

In India, freedom of expression is not unlimited. While our Constitution guarantees freedom of speech and expression, it also imposes “reasonable restrictions” on this fundamental human right. Before 2015, the legislation divided online and offline expression into two categories. Anyone who uploaded anything that was extremely offensive, inconvenient, harmful, menacing, or insulting in nature may be imprisoned for up to three years under Section 66A of India’s Information Technology Act, 2000. In a historic decision in Shreya Singhal vs Union of India (2015), the Supreme Court of India knocked down this draconian clause for violating the constitutionally given right to free speech and expression.

In this case, the Supreme Court absolved content hosting platforms such as search engines and social media websites from constantly monitoring their platforms for illegal content, enhancing the existing safe-harbor protection or legal protection given to internet companies for content posted by their users. “Only authorized government authorities and the judiciary might lawfully request that internet companies remove information”, according to the Court. This was a watershed moment in India’s online free-speech legislation, as content hosting platforms are the gatekeepers of digital expression. The right to freedom of expression refers to the ability to express oneself without interference, and it is unaffected by any exceptions or restrictions.

Written and spoken communications, the media, public protest, broadcasting, creative works, and commercial advertising are all protected under the Right to Freedom of Speech. There is no such thing as an absolute right. It comes with unique duties and may be restricted for a variety of reasons. Restrictions might be imposed on access to particular websites or the promotion of violence.

Can the right to freedom of opinion and expression be limited

Media is used to communicate sentiments, ideas, and perspectives; on the other hand, it is also used to create a foundation of opinions on various concepts such as regional, national, and worldwide principles. As a result, millions of people’s thinking abilities are influenced by the media. Press freedom is seen as a cornerstone of democracy. In today’s India, there are four pillars. After ensuring Article 19 (1) (a)  of the Constitution, which protects the right to freedom of expression, the fourth pillar, the media, was formed. The role played by the media is crucial; it works as a watchdog. It aims to bring to light all of society’s flaws by raising awareness with the goal of correcting them. The press is, after all, a source of information for individuals. “The press is for them, the only window which opens upon the world, the sole means of escape through the prison whose walls are private interests, personal ties, and domestic concerns.”- (Justice George). It is, therefore, in the interest of the people to ensure the freedom of the press for it is the best guarantee of their freedom.

However, with the freedom to press comes the right to privacy, which may be infringed upon. With the media’s growing roles and duties in daily life, it is more important than ever for the media to understand its limits. The media has a responsibility to uphold the dignity of persons by respecting the privacy of others. Article 21 of the Indian Constitution guarantees the “right to privacy” of individuals. Despite India having freedom of speech and expression, it is subject to reasonable restrictions under Article 19(2) of the Constitution. As a result, freedom of speech and expression is limited. The limitations must be followed in order to preserve integrity.

Right to Privacy in India

It became a fundamental right, people’s Right to Privacy was inherent in their right to life and personal liberty under Article 21. The Right to Privacy entails the ability to be left alone. It might be argued that privacy and freedom of speech are two sides of the same coin, one of which is required to enjoy the other. This is because an individual’s right to freely create and express political, religious, or other opinions necessitates privacy and a secure private space free from government and other intrusions. 

Invasion of one’s Right to Privacy, such as phone tapping, electronic or physical monitoring, and interference into one’s personal space, prevent one from exercising their Right to Freedom of Speech. Any country that is serious about promoting the right to free expression must also take the right to privacy seriously.

Complete State control and dominance are hindered by the fundamental wall of privacy. The social compact will be shattered without it, and people will be unable to realize their democratic rights to participate, develop, grow, and think. Citizens who are unable to create or transmit private ideas without the intrusion of the state will be stripped of their human dignity as well as their Right to Privacy. The capacity to freely think and communicate ideas is fundamental to who we are as people.

Article 19(1)(a) of the Indian Constitution guarantees freedom of expression. Article 19(2) contains restrictions on the exercise of freedom of expression that the state can enforce in the interests of the state’s sovereignty and integrity, security, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation, or incitement to an offense. When it comes to the Right to Privacy and the Right to Freedom of Speech, there has always been a basic concern regarding the relative importance of privacy and expression. Even when a person’s freedom to express ideas interferes with another’s Right to Privacy, an open democracy honors that right.

Reasonable restrictions – Article 19(2)

Fundamental rights are never bestowed in absolution in any democratic country where they exist. Every fundamental right must be limited in a fairway. The Right to Privacy is not absolute, and it can be legitimately limited for the purposes of preventing crime, disturbance, or protecting one’s health or morality, as well as the preservation of others’ rights and freedoms. With the rise of terrorism and associated activities, every government is doing everything it can to combat the problem. The limits on clause 1 of Article 19 are stated in clauses 2 to 6 of the same Article of the Indian Constitution. The limitations of Article 19(1)(a) are discussed in detail in Article 19(2). The First and Sixteenth Amendments to the Constitution, which were ratified in 1951 and 1963, respectively, modified Clause 2 to allow the government to impose limits on Freedom of Speech and Expression.

Grounds on which Freedom of Speech and Expression & Right to Privacy can be restricted

The Indian Constitution’s clause (2) of Article 19 restricts free expression under the following headings: state security, friendly relations with a foreign state, public order, decency and morality, contempt of court, defamation, incitement to a crime, and India’s sovereignty and integrity.

Privacy is a relatively new notion in the legal system that is continuously evolving. It is difficult to define privacy, particularly in legal terms. The Right to Privacy is a critical component in safeguarding people and the foundations of individuality. The Right to Privacy is not explicitly mentioned in the Indian Constitution. However, Article 21 explains the scope of the Right to Privacy which says that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” 

The judiciary interprets the Article widely and considers it to encompass the Right to Privacy. The case Kharak Singh v. State of Uttar Pradesh and Others (1962) marked the beginning of the Right to Privacy. The Supreme Court recognized “The Right to be left alone” in the case of Govind v. State of Madhya Pradesh (1975) and, for the first time, the Court noted that the Right to Privacy is not clearly stated in the Indian Constitution. Following the cases, the Court expanded the scope of the Right to Privacy to encompass the right to life and personal liberty. As a result, under the Indian Constitution, the Right to Privacy is a fundamental right that must be respected in all circumstances and can only be restricted if there is a compelling conflicting interest that outweighs it.

Role of the media

At this time, we can see how the media has become unpredictable as a result of over-commercialization, and how it has gone past the bounds of its freedoms by infringing on people’s Right to Privacy. The Right to Privacy has a solid legal foundation; it is a fundamental, inherent, and unalienable right. In the case of Labour Liberation Front v. State of Andhra Pradesh (2004), Andhra Pradesh Court expresses a similar point of view- “Once an event involving a notable person or institution occurs, the media goes into overdrive, leaving very little time for the prosecution or the courts to investigate the matter”.

The role of the media has recently grown to hazardous dimensions, to the point where it is invading people’s privacy. In the world of journalism, the abuse of technical developments and unhealthy rivalry led to the obliteration of standards and obligations to the noble profession. The Right to Free Speech and Expression, which is the cornerstone of journalism, is often abused. It must not be forgotten that only those who exercise restraint may successfully utilize their rights and freedoms. Freedom of the press was taken into consideration with regard to the Right to Privacy of an individual, according to a judgment in the case of R. Rajagopal and Others v. State of Tamil Nadu and Others (1994). There is no express provision in the Indian Constitution regarding the Right to Privacy. It is a considered right under Article 21 of the Constitution. The Right to Privacy, which is intertwined with two other basic rights, must be considered in the context of Articles 21 and 19.

In the case of Rajat Sharma & Anr vs Ashok Venkatramani & Anr (2019), in the pretext of presenting the anchorless news channel Zee Hindustan, the advertising takes aim at famed TV journalist Rajat Sharma. It alludes to Rajat Sharma, India TV’s chairman, and editor-in-chief, and implies that his popular long-running show Aap Ki Adalat would no longer be watched. Mr. Sharma filed a permanent injunction lawsuit against Zee Media as a result of this advertising. The Court upheld well-known principles of celebrity rights and the right to publicity. The court found that the aforementioned advertisement was unlawful on its sight and that the balance of convenience favored the plaintiff. The court restrained Zee Media to stop publishing an advertisement in the name of Rajat Sharma. This case also shows the importance of balance between the Right to Privacy and Freedom of Speech and Expression.

Considering the fact that the press plays a significant role in public welfare, it must work properly. The problem is that the Right to Privacy is not a positive right; it only exists when it is violated. Judgments have been the only way for the law to grow. When it comes to public security and safety, the Right to Privacy is frequently infringed. In our lives, the media infringes on our Right to Privacy. There is a contradiction between media activity and the Right to Privacy. 

To summarise the basis, it declares a conflict between the public’s right to know and their Right to Privacy invasion. With power comes responsibility, and the rights given under Article 19 (1) (a) of the Constitution come with a responsibility not to break the law. As a result, human dignity and privacy must be maintained when enjoying media freedom. The existing image of the Right to Privacy is hazy and needs to be examined. A credible press sends information into the public realm that must be verified, but all that is required is to demand privacy and legal standards, which appear to exist nowhere in reality.

Implications of crossing a line between the Right to Privacy and Freedom of Speech and Expression

The freedom to express oneself cannot be truly appreciated when the most private and hidden aspects of one’s life are exposed to the potential of intrusion. Instead, people begin to be concerned that their thoughts, words, and interactions will be intercepted and analyzed. Individuals’ capacity to freely transmit and receive information and knowledge is hampered by restrictions on the content they may access on the internet. Individuals may be de facto or in fact, excluded from key social spheres if they get identified themselves online or in a condition of using internet or phone services that may limit their rights to expression and information, and that can also aggravate social disparities. Infringements on one’s privacy, therefore, restrict free expression, leading people to filter their messages and limiting their capacity and desire to join and interact.

Infringements on one’s right to privacy and one’s right to free expression have a cascading effect on one’s right to freedom of association and assembly. The monitoring of communications allows the government to learn about and examine relationships and exchanges that people would otherwise prefer to keep private. Surveillance may have an influence on people’s capacity to freely express their ideas, it may also have an impact on who they may communicate those opinions to. Individuals’ ability to organize is also limited; where previously membership lists were sometimes required to intimidate individuals into joining organizations, it is now possible to discern their interests from online activities, location data from their mobile and related internet services, or the use of scanning technologies to identify all people within a given physical space.

Certain groups are more susceptible to abuses of their right to free expression, privacy, and information than others. Journalists rely on privacy protection to receive and seek information from confidential sources, such as whistleblowers since it allows them to operate in an environment free of authority. Source protection has long been recognized as an essential component of the Right to Freedom of Speech. The presumption of source protection cannot be maintained in an environment where monitoring is prevalent and unfettered by due process or judicial scrutiny. Without thorough and public documentation of its use, as well as established checks and balances to avoid its misuse, even a restricted, non-transparent, unrecorded presidential use of surveillance may have a chilling impact.

Remedy for protection of privacy

As a signatory to the United Nations, India has incorporated nearly every principle into its legal structure. In Article 12 of the Universal Declaration of Human Rights (UDHR), privacy is declared to be the most fundamental requirement. However, Freedom of Speech and Expression was only a portion of Article 19, and it came with limitations under Article 19(2). Despite the fact that libel and slander have no place as limitations, the press has the freedom to use their power in an immoral manner. 

The right to propagate, including the freedom to circulate, was recognized in the case of Romesh Thappar v. The State of Madras (1950), where the Court declared that the press had the right to spread. The Right to Press arose from the aforementioned factors. However, because the Right to Privacy does not have an autonomous standing in our Constitution, it is placed alongside the Right to Freedom of the Press. This might be because the Right to Privacy is not clearly stated in the Constitution, and enshrining its breadth in Article 21 does not give it justice. Article 21 can function as an interim measure however in order to offer a remedy, protection of the right to privacy is required, and the inclusion of slander i.e. false or defamatory verbal or oral statement and libel i.e. false and defamatory written or published statements as restrictions may broaden the reach of the UDHR’s principles.

Role of Indian judiciary in check and balance

India prohibits the infringement of the Right to Privacy through its various legislations. The instrument is the Indian Penal Code (1860), the Code of Criminal Procedure (1973), and other laws that restrict freedom of expression in India. The government can declare some publications “forfeited” under Section 95 of the Code of Criminal Procedure. The Right to Privacy is a fundamental component of the Right to Life, according to the Court in R.Rajagopal v. State of Tamil Nadu (1994) and People’s Union for Civil Liberties v. Union of India (1996).

In the case of Titan Industries Ltd. vs M/S Ramkumar Jewellelrs (2012), the Delhi High Court said that, when a renowned person’s identity is exploited in advertising without their consent, the objection is not that no one should commercialize their identity, but that the famous person should have the right to decide when, and how their identity is utilized. The right to publicity includes the ability to govern the commercial use of one’s identity. The principles laid down here were reaffirmed in the case of Rajat Sharma & Anr vs Ashok Venkatramani & Anr (2019).

The need for privacy is a natural instinct for all humans. In reality, establishing separate boundaries with near-perfect isolation is a fundamental demand of a person. In its broadest sense, privacy refers to nondisclosure of information, sexual affairs, corporate secrets, and the lack of observation by others.

Before coming to the end, it is very essential to illuminate focal shine towards the background of Right to Privacy with regard to today’s perspective in brief. Previously, the Right to Privacy was not recognized as a fundamental right in the Indian Constitution. Since neither the Constitution nor any other legislation in our nation specified the notion of privacy, it is only the responsibility of the judiciary in our country to recognize it. In reality, this notion is still in its very early stages of development. However, if we look at numerous legislations in our nation to see where the notion of privacy stands, we will discover numerous measures that have been established to preserve privacy. Not only that, but Dharma Shashtraas’ ancient law also acknowledged the notion of privacy. In fact, the law of privacy has been well-explained in historical legal texts.

In the Arthashastra, Kautilya lays forth a step-by-step method for ensuring the Right to Privacy while ministers are consulted. However, the concept of “private” has never been defined in either ancient or modern law. It gives great joy that our judiciary’s developing trend of new constitutionalism validates the necessity for legislation that protects one’s privacy and dignity. Furthermore, the Right to Privacy is recognized and protected in Article 12 of the Universal Declaration of Human Rights, Article 17 of the International Covenant on Civil and Political Rights, and Article 8 of the European Convention on Human Rights.

There are now situations where businesses monitor all of their workers’ emails. It is a flagrant violation of the Right to Privacy. Furthermore, many cell phone providers launched a tracking system in which the user’s phone displays the name of the location everywhere he or she goes. This gives the impression of being followed or stalked. It’s a classic instance of arbitrary limitation of one’s freedom of movement. In any case, the Right to Privacy will inevitably have to be developed on a case-by-case basis. Even if the Right to Personal Liberty, the ability to freely roam within India, and the freedom of expression form an independent right to privacy, it is an emanation from them that may be described as a fundamental right, but the right is not absolute. 

Conclusion 

Both the rights are meant to assist individuals in holding government officials responsible and transparent. The majority of problems may be solved by enacting explicit definitions in law, guidelines, procedures, and supervision systems. Due diligence would verify that the definitions of personal information under the access to information and data protection regulations are consistent. To balance these rights and guarantee that data protection and the right to freedom function in combination, appropriate institutional structures, and public interest criteria should be established. The public authorities should interact with applicants in a courteous manner, with the public interest at the forefront.

References 


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