Freedom of speech and the right to privacy

By Rahul Chaudhry, Lall Lahiri & Salhotra
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Individual freedom of speech is widely accepted as an inviolable liberty of all citizens in a true democracy. A free press is equally and vitally important, enabling the dissemination of independent information and the sharing of ideas and opinions. However, as in the case of all other rights, the constitution limits the freedom of the press, making it subject to reasonable restrictions in the larger public interest.

Rahul Chaudhry
Rahul Chaudhry
Lall Lahiri & Salhotra

Information technology plays an extremely important role in society today; information is more readily and easily accessible than ever before. For example, it is not difficult to use the internet to trace and research personal details about others.

When advanced methods of information retrieval are combined with the existence of detailed databases containing sensitive personal information – such as those maintained by banks, hospitals and public authorities – there is potential grave danger to the protection of individual liberties, especially the right to privacy.

AC Breckenridge defines privacy as “the rightful claim of the individual to determine the extent to which he wishes to share himself with others and his control over the time, place and circumstances to communicate with others [and] to control dissemination of information about himself”. The Supreme Court of India has recognized the right to privacy, defining it in Sharda v Dharampal (2003) as “the state of being free from intrusion or disturbance in one’s private life or affairs”.

Despite widespread acknowledgment of privacy as a right (for example, in the Universal Declaration of Human Rights and the European Convention on Human Rights), in India there are no specific constitutional or statutory provisions for its protection. The Supreme Court has included privacy within the “right to life” under Article 21, and in a few cases has accorded protection to it. However, the silence of statute on the subject means that attacks on privacy go effectively unanswered in Indian law.

While freedom of speech is widely protected, it is limited by the requirement to avoid publicly divulging information that is likely to encroach upon an individual’s private life and affairs. This requirement was recognized as far back as 1890 in the US, when in the Harvard Law Review Warren and Brandeis stated, “The press is overstepping in every direction the obvious bounds of propriety and of decency” and noted that “the intensity and complexity of life attendant upon advancing civilization have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual.”

In India, most early cases in relation to privacy revolved around state control over individual liberties. However, in the past few years there have been a growing number of cases relating to invasion of individuals’ privacy and personal space by the media. For example, the case of Sheila Barse v Union of India (1987) involved questions of journalistic freedom and individual liberty; the Supreme Court held that there must be a balance between the two interests, and that no person (whether or not they are a prisoner) should be compelled to grant an interview or have photographs taken.

However, it was in the case of R Rajagopal v State of Tamil Nadu (1994), over the disputed publication of an infamous murderer’s autobiography, that the right to privacy in the context of freedom of speech was first discussed. The Supreme Court held that “the press had the right to publish what they claimed was the autobiography of Auro Shankar in so far as it appeared from public records, even without his consent or authorization. However, if the publication went beyond the public record and published his life story, that would amount to an invasion of his right to privacy.”

Issues of privacy also arise in connection with data theft; it is not rare to find cases where personal information is made available due to lack of adequate protection. The absence of specific legislation in this regard is often felt, and the liability of persons entrusted with the protection of sensitive information is often unclear, being usually based on contractual relations.

While most countries have enacted protective legislation (for example, the Privacy Act, 1988, and the Data Protection Act, 1988, in the UK), there is still a long way to go before Indian legislation can protect individual and personal information. The Information Technology Act, 2000, incorporated provisions that make the disclosure of information contained in an electronic record without the consent of the concerned person a punishable offence; yet surprisingly there is no liability for persons obtaining illegal and unauthorized access to such information.

It is vital that press freedom and liberty of speech are maintained, yet individual privacy is equally vital to democracy. It is imperative that a balance be found between the two freedoms.

Rahul Chaudhry was called to the bar in September 2002. He joined Lall Lahiri & Salhotra in January 2004 and became a partner just four years later. Along with the firm’s founding partners, Anuradha Salhotra and Amar Raj Lall, Chaudhry is regarded as one of the most prominent faces of IP management in India.

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