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Curator: Sarvjeet Singh, Project Manager & Research Fellow, Centre for Communication Governance at National Law University, Delhi
Contributor: Medha Vikram, Student, National Law University, Delhi

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Privacy law in India

A G Noorani, ‘A case for privacy‘ (2011) 28(24) Frontline

This articles discusses the urgent need for a strong privacy law in India. It traces the right to privacy under Article 21 of the Constitution and the case law relating to the same. Specifically, it addresses how people may be vulnerable to breaches of privacy due to the mass collection of data for public schemes such as the Unique Identification system devised by the government of India.

Press Freedom and Right to Privacy‘ (1990) 25 EPW 977

This article argues that there is a need for a better definition of the rights and duties of the Press. This will in turn ensure that Every legitimate demand for the right to privacy, when Abhinav Chandrachud, ‘The Substantive Right to Privacy: Tracing the Doctrinal Shadows of the Indian Constitution’ (2006) 3 SCC (Jour) 31

This article traces the jurisprudence relating to the right to privacy in India. It refers extensively to the position of laws in the United States and discusses the opinions of relevant thinkers. It attempts to define the criteria along which the right to privacy must be defined in India.

Apar Gupta, ‘Balancing Online Privacy in India‘ (2010) 6 IJLT 43

There have been disturbing press reports and articles on the Information Technology (Amendment) Act, 2008. These accounts broadly wallow about the increase in the police powers of the state. They contend that the amendment grants legal sanction to online surveillance inexorably whittling down internet privacy. This article seeks to examine this prevalent notion. It discovers that legal provisions for online surveillance, monitoring and identification of data have been inserted in a narrow and defined class of circumstances governed by tenuous procedures. At first glance it may seem that these procedures and safeguards by themselves increase the right to privacy. However, on a deeper study it is revealed that they are found wanting due to the nature of internet communications. The article takes a comprehensive look at the state of online privacyin India arising out of the Information Technology Act, 2000.

BD Agarwala, ‘Right to Privacy: A Case-By-Case Development‘ (1996) 3 SCC (Jour) 9

This article analyses the constitutional jurisprudence relating to the right to privacy. Particularly, it addresses the exceptions to the application of the right to privacy as discussed by Justice B.P. Jeevan Reddy in the case R. Rajagopal v. State of Tamil Nadu.

Ponnurangam Kumaraguru and Lorrie Cranor, ‘Privacy in India: Attitudes and Awareness

This article discusses the increasing need for a privacy regime in India, in light of the growing business process outsourcing industry and the accumulation of large amounts of personal information. The authors have conducted a survey and conclude that there is a serious lack of awareness with respect to the right to privacy.

Pravesh Dalei and Surendra Kumar Nirala, ‘Sting Operation vis-à-vis Right to Privacy by Media: A legal analysis in Indian Context‘ (2013) 2(4) Intl J Humanities and Applied Sciences 110

Electronic media, as compared to print media, has an added advantage as visuals have greater impact and ramification. They directly and immediately influence the minds of the viewers.

With the growth in the number of News Channels and the increasing practice of showing “breaking news”, the electronic media has come to play a major role in stirring public opinion and conscience as well. It is this potency to reach the public that enjoins on all the channels to understand and realise the heavy responsibility that is thrust on them. They should ensure that there is no case of misuse of the freedom. Keeping in mind the role a responsible media can play in disseminating information and creating awareness among masses without crossing the limits that a civilised society would expect, the electronic media should define its role. Freedom of the media is indeed an integral part of the freedom of speech and expression; and an essential requisite of a democratic set up. The Indian Constitution has guaranteed this freedom by way of a Fundamental Right. The media, which is obligated to respect the rights of individuals, is also expected to work within the framework of legal principles and provisions so that the right to privacy of an individual is not unnecessarily infringed at any cost whatsoever.

Report of the Group of Experts on Privacy chaired by Justice AP Shah‘ (16 Oct 2012)

An expert group chaired by retired Justice A.P. Shah was created by the Planning Commission to set out principles for an Indian privacy law. In its report in October 2012, it concluded that the two laws were inconsistent on the “permitted grounds for surveillance, the type of interception that is permitted to be undertaken (monitoring, tracking, intercepting etc.), the type and granularity of information that can be intercepted, the degree of assistance that authorized agencies can demand from service providers, and the destruction and retention requirements of intercepted material.” These differences, it concluded, “have created an unclear regulatory regime that is non-transparent, prone to misuse, and that does not provide remedy for aggrieved individuals.”[1]

Specifically, the Report highlighted nine National Privacy Principles that must be incorporated into a privacy legislation in India. These principles are:[2]

Notice to be given by data collector to the individual concerned during data collection, data breaches, when access is granted to third parties, or when there is a change in the data collector’s policy.

Choice and Consent: Individuals must be given opt in/opt out choice with respect to collection of data. The individual must also be given the option to withdraw consent for collection of information at any point of time. When provision of information is mandated by law, it should be in compliance with all other National Privacy Principles

Collection Limitation: A data controller shall only collect personal information from data subjects as is necessary for the purposes identified for such collection

Purpose Limitation: A data controller shall collect, process, disclose, make available, or otherwise use personal information only for the purposes as stated in the notice after taking consent of individuals.

Access and Correction: Individuals shall have access to personal information about them held by a data controller; shall be able to seek correction, amendments, or deletion such information where it is inaccurate; be able to confirm that a data controller holds or is processing information about them; be able to obtain from the data controller a copy of the personal data.

Disclosure of Information: A data controller shall not disclose personal information to third parties, except after providing notice and seeking informed consent from the individual for such disclosure

Security: A data controller shall secure personal information that they have either collected or have in their custody, by reasonable security safeguards against loss, unauthorised access, destruction, use, processing, storage, modification, de-anonymization, unauthorized disclosure [either accidental or incidental] or other reasonably foreseeable risks.

Openness: A data controller shall take all necessary steps to implement practices, procedures, policies and systems in a manner proportional to the scale, scope, and sensitivity to the data they collect, in order to ensure compliance with the privacy principles, information regarding which shall be made in an intelligible form, using clear and plain language, available to all individuals.

Accountability: he data controller shall be accountable for complying with measures which give effect to the privacy principles.

Sonal Makhija, ‘Privacy & Media Law‘ (19 July 2011)

In her research, Sonal Makhija, a Bangalore-based lawyer, tries to delineate the emerging privacy concerns in India and the existing media norms and guidelines on the right to privacy. The research examines the existing media norms (governed by Press Council of India, the Cable Television Networks (Regulation) Act, 1995 and the Code of Ethics drafted by the News Broadcasting Standard Authority), the constitutional protection guaranteed to an individual’s right to privacy upheld by the courts, and the reasons the State employs to justify the invasion of privacy. The paper further records, both domestic and international, inclusions and exceptions with respect to the infringement of privacy.

International material on protection of the right to privacy

Adam Moore, ‘Privacy: Its Meaning and Value‘ (2003) 40 American Philosophical Quarterly 215

This article discusses how informational privacy is yet to attain the status of a strongly protected and cherished right. The author argues that as rational project pursuers, who operate and flourish in a world of material objects it is our ability control patterns of association and disassociation with our fellows that afford each of us the room to become distinct individuals. Privacy, whether physical or informational, is valuable for beings. Therefore, establishing the truth of this claim is the primary focus of this article. This article providing reasons, evidence, and support for this claim and takes us into the historical and cultural dimensions of privacy.

Andrew Jay Mcclurg, ‘Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places‘ (1995) 73 NC L Rev 989 [Open Access] “Public privacy” sounds like an oxymoron, but this article asserts a tort theory to enforce just such a right under limited circumstances. Traditionally, courts have refused to recognize a right to privacy in a public place. The author argues that this lack of protection needs to be revisited in a world where good taste and decency have vanished from journalism/entertainment and video cameras and other electronic privacy-invading devices have proliferated. Analyzing the three foundations of privacy — secrecy, solitude, and anonymity — the author explains how and why they need, and are worthy of, legal protection even in some public contexts.

CE Friend, Constitutional Law - Right of Privacy - Time, Inc. v. Hill, 87 S. Ct. 534 (1967) (1967)  8 Wm. & Mary L. Rev. 683

This article discusses the case of Time Inc v. Hill where, the Supreme Court of the United States had held that held that constitutional protections for speech and press preclude recovery under the right of privacy statute for “false reports of matters of public interest,” in the absence of proof that the report was published “with knowledge of its falsity or in reckless disregard of the truth.” Thus, by this decision, the Supreme Court made it evident that the primary consideration was promotion of free speech as recognized by the First amendment and that the right to privacy is subordinate to that.

Australia Law Reform Commission Report on Australian Privacy Law and Practice,  Protecting a Right to Personal Privacy: Right to personal privacy- developments in Australia and elsewhere (12 Aug 2008)

This report seeks to develop an understanding on the means to protect the right to privacy by analysing the laws in various jurisdictions, including the statutory expressions of the tort of invasion of privacy in the United States, some of the provinces of Canada and the Privacy Bill considered by the Irish Parliament. The aim is to  determine what is considered ‘private’ for the purpose of determining liability for a breach of privacy.

Charles Fried , ‘Privacy‘ (1968) 77(3) Yale L J 475

The article addresses the origins of the right to privacy – the reason why men feel that the invasion of that right injure them in their very humanity. It also addresses the change in the conception of the right to privacy due to the increased technological surveillance and electronic eavesdropping.

Conference Reports, Conference on Freedom of Expression & Right to Privacy, Council of Europe (includes Eric M Barendt, ‘ The protection of privacy and personal data and the right to use one’s image and voice: when does the dissemination of information become an interference with a person’s life?‘)

This article discusses the issues relating to privacy in great detail, including the definition of privacy, grounds for interference and the need to balance conflicting interests. The article provides some factors based on which balancing of conflicting interests can occur: (i) Ad hoc or definitional balancing; (ii) formulation of rules; (iii) protection of vulnerable groups such as children and families; and (iv) consideration of information already in the public domain.

Daniel Solove, ‘A Taxonomy of Privacy‘ (2006) 154(3) U Pa L Rev 477

The author argues that privacy is a concept in disarray and nobody can articulate what it means. Privacy is far too vague a concept to guide adjudication and lawmaking, as abstract incantations of the importance of privacy do not fare well when pitted against more concretely-stated countervailing interests. This article develops a taxonomy to identify privacy problems in a comprehensive and concrete manner. It endeavors to guide the law toward a more coherent understanding of privacy and to serve as a framework for the future development of the field of privacy law.

Daniel Solove, ‘I’ve Got Nothing to Hide’ and Other Misunderstandings of Privacy‘ (2007) 44 San Diego L Rev 745. In this article the author examines the nothing to hide argument. According to the nothing to hide argument, there is no threat to privacy unless the government uncovers unlawful activity, in which case a person has no legitimate justification to claim that it remain private. The nothing to hide argument and its variants are quite prevalent, and thus are worth addressing and Solove critiques the nothing to hide argument and exposes its faulty underpinnings.

Daniel Solove, ’Conceptualizing Privacy (2002) 90 Cal L Rev 1087 In this article, the author develops a new approach for conceptualizing privacy. He begins by examining the existing discourse about conceptualizing privacy, exploring the conceptions of a wide array of jurists, legal scholars, philosophers, psychologists, and sociologists. Solove contends that the theories are too narrow or too broad. With a few exceptions, the discourse seeks to conceptualize privacy by isolating one or more common essential or core characteristics of privacy. Solove contends that privacy is better understood as drawing from a common pool of similar characteristics. Rather than search for an overarching concept, and advances a pragmatic approach to conceptualizing privacy.

Don Pember and Dwight Teeter, ‘Privacy and the Press Since Time, Inc. v. Hill‘ (1974) 50 Wash L Rev 57

This article addresses the case of Time, Inc. v. Hill and the disorderly nature of the recognition of the right to privacy in the United States.

Hilary Delany and Cliodhna Murphy, ‘Towards Common Principles Relating to the Protection of Privacy Rights? An Analysis of Recent Developments in England and France and Before the European Court of Human Rights’ (2007) (12) EHRLR 568

The article compares the protection of privacy rights by the European Court of Human Rights and domestic courts in France and England, and considers whether a more harmonised methodology may be emerging. It further Examines their approaches to balancing the right to privacy under the European Convention on Human Rights 1950 Art.8 with the right to freedom of expression under Art.10 and reflects on the English adoption of the “reasonable expectation of privacy” test.

House of Commons,  Culture Media and Sport Committee Report on Privacy and Media Intrusion (21 May 2003)

The regulation of broadcasting in the United Kingdom has been reformed and the precise responsibilities of the Office of Communications (Ofcom) were being finalised at the same time as this Report was being prepared. This report provides 34 recommendations for the allocation of responsibilities to the Ofcom which allow it to regulate the laws pertaining to freedom of expression and privacy. This report addresses the issues of defining the right to privacy, the exceptions to the right to privacy and the method of balancing conflicting rights. It also addresses the role of the media and the government in protecting the right to privacy.

HRC, Twenty third session ‘Report by Special Rapporteur Frank La Rue on the Promotion and Protection of the Right to Freedom of Opinion and Expression’ (17 Apr 2013) UN Doc A/HRC/23/40

The present report analyses the implications of States’ surveillance of communications for the exercise of the human rights to privacy and to freedom of opinion and expression. While considering the impact of significant technological advances in communications, the report underlines the urgent need to further study new modalities of surveillance and to revise national laws regulating these practices in line with human rights standards.

James Q. Whitman, ‘The Two Western Cultures of Privacy: Dignity versus Liberty‘ (2004) 113 Yale L J 1151

Privacy advocates often like to claim that all modern societies feel the same intuitive need to protect privacy. Yet it is clear that intuitive sensibilities about privacy differ from society to society, even as between the closely kindred societies of the United States and continental Europe. Some of the differences involve questions of everyday behavior, such as whether or not one may appear nude in public. But many involve the law. In fact, we are in the midst of major legal conflicts between the countries on either side of the Atlantic – conflicts over questions like the protection of consumer data, the use of discovery in civil procedure, the public exposure of criminal offenders, and more. Clearly the idea that there are universal human sensibilities about privacy, which ought to serve as the basis of a universal law of the protection of privacy, cannot be right. This article explores these conflicts, trying to show that European privacy norms are founded on European ideas of personal honor. Continental privacy, like continental sexual harassment law, prison law, and many other bodies of law, aims to protect the personal honor of ordinary Europeans. American law takes a very different approach, protecting primarily a liberty interest. These are not differences that we can understand unless we abandon the approach taken by most privacy advocates, since they have little to do with the supposedly universal intuitive needs of personhood. Instead, they are differences that reflect the contrasting political and social ideals of American and continental law. Indeed, we should broadly reject intuitionism in our legal scholarship, focusing instead on social and political ideals.

James Rachels, ‘Why Privacy Is Important’ (1975) 4(4) Philo & Pub Affairs 323

This article addresses the various philosophical theories behind the reason why people feed the need to protect their privacy. It connects the desire of people to control the information about themselves to their ability to maintain different social relationships.

James H. Barron, Warren and Brandeis, The Right to Privacy, 4 Harvard L. Rev. 193 (1890)

This is the seminal article pertaining to the right to privacy. It laid down the basis for the recognition of the right to privacy in the United States.

John P Borger et al, ‘Recent Developments in Media, Privacy, and Defamation Law’ (2010) 45 Tort Trial & Insurance Practice Law 465

This article discusses recent US case law and legal opinions relating to defamation and privacy law in the United States. It specifically deals with each of the defences to defamation and the standard of actual malice that is required. The article also deals with the internet related developments and the need to accordingly revise privacy law.

Judith Jarvis Thomson, ‘The Right to Privacy‘ (1975) 4 (4) Phil & Pub Affairs 295

This article deals with the philosophical aspect of what exactly constitutes the right to privacy. In this respect, it analyses the right to privacy as the ‘right to be left alone’. The author then discusses certain cases to understand how the right to be left alone can be better protected.

Julie E. Cohen, ‘ What Privacy Is For‘ (2013) 126 Harv L Rev 1904

In this article, the author focuses on the interplay between privacy and systems of surveillance and argues that the freedom of surveillance is foundational to the practice of informed citizenship. Privacy is therefore a structural feature of a liberal democratic system- the perception of privacy as anti-innovation is non-sequitur.

Patricia R Stembridge Sprain et al, ‘Recent Developments in Media, Privacy, and Defamation Law‘ (2006) 41 Tort Trial & Insurance Practice Law 595

This is a report on a survey conducted by the author. It analyses several District Court cases in the United States and draws the link between confidentiality of journalists’ sources and the right to privacy. The article also discusses cases related to privacy and defamation.

Peter L Felcher and Edward L, ‘Rubin, Privacy, Publicity, and the Portrayal of Real People by the Media‘ (1979) 88(8) Yale L J 1577

This article will demonstrate that courts are guided by certain well-accepted and clearly identifiable social policies in resolving conflicts over media portrayals. It will further demonstrate that coherent legal principles can be derived from those policies, and that these principles, although infrequently articulated by the courts, account for the prevailing pattern of court decisions. The article proposes that the terms “privacy” and “publicity” should be abandoned in the analysis of media portrayal cases, and replaced with an explicit recognition of the principles that courts actually use.

Richard Posner, ‘The Right of Privacy‘ (1978) 12(3) Georgia L Rev 393

This Article is the text of the John A. Sibley Lecture delivered on March 2, 1978, at the University of Georgia School of Law, and is part of a collaborative project with George J. Stigler on the law and economics of privacy. The present Article attempts an economic analysis of the dissemination and withholding of information primarily in personal rather than business contexts. It is thus concerned with such matters as prying, eavesdropping, “self-advertising,” and gossip. The line between personal and commercial is not always clear or useful, and I shall not maintain it unwaveringly; the emphasis, however, is on the personal. The first part of the Article develops the economic analysis. I remark in passing the irony that personal privacy seems to be valued more highly than organizational privacy, judging by current public policy trends, although a reverse ordering would be more consistent with the economics of the problem. The second part of the Article examines the principles of tort law that protect a “right of privacy” in both commercial and personal contexts (the former is discussed only briefly, however) and concludes that the judges in tort cases have been sensitive to the economics of privacy.

Robert C Post, ’The Social Foundations of Privacy: Community and Self in the Common Law Tort‘ (1989) 77 Cal L Rev 957 (1989)

This Article is the text of the John A. Sibley Lecture delivered on March 2, 1978, at the University of Georgia School of Law, and is part of a collaborative project with George J. Stigler on the law and economics of privacy. The present Article attempts an economic analysis of the dissemination and withholding of information primarily in personal rather than business contexts. It is thus concerned with such matters as prying, eavesdropping, “self-advertising,” and gossip. The line between personal and commercial is not always clear or useful, and I shall not maintain it unwaveringly; the emphasis, however, is on the personal. The first part of the Article develops the economic analysis. I remark in passing the irony that personal privacy seems to be valued more highly than organizational privacy, judging by current public policy trends, although a reverse ordering would be more consistent with the economics of the problem. The second part of the Article examines the principles of tort law that protect a “right of privacy” in both commercial and personal contexts (the former is discussed only briefly, however) and concludes that the judges in tort cases have been sensitive to the economics of privacy.

Robert Walker, ‘The English Law of Privacy: An Evolving Human Right‘ (25 Aug 2010)

This article discusses the cases of Wainwright v Home Office1 and Campbell v MGN Ltd. and then goes on to trace the right to privacy as a human right under English law. Specifically, the author has discussed jurisprudence under the Human Rights Act and the European Convention on Human Rights. The author concludes that even though jurisprudence on privacy is essentially fact-centric, certain trends have begun to arise, such as the recognition of the right to publicity under the ambit of privacy.

Robin Barnes, ‘The Caroline Verdict: Protecting Individual Privacy Against Media Invasion as a Matter of Human Rights, (2006) 110 Penn St L Rev 599

The European Union’s Court of Human Rights is leading the way in recognizing the continuing duty of democratic societies to protect the sphere of privacy that not only leaves its citizens secure in their person and property, but also cultivates family dignity, privacy and opportunities for self-determination. On June 24, 2004, in Case of Von Hannover v. Germany, the European Court of Human Rights radically altered the rules governing the unauthorized publication of exposes that offer intimate details of celebrities’ private lives.

This case, which involved a woman of enormous courage and celebrity, is less momentous for its visibility than for its considerable value to democracy. While most celebrities remain relatively secluded, convinced they lack power against the media, Princess Caroline of Monaco has been resolute in her quest for justice. 2 After fighting in the German courts for nearly ten years, Caroline Von Hannover took the case for protection of her privacy to the European Court of Human Rights. 3 Invariably, others will benefit from her perseverance in ways that she could not as she waded through the appellate process. 4 In Von Hannover, the European Court of Human Rights offers an exceptionally clear statement of judicial recognition of the relationship between privacy and personal development. Considering this decision emanated from one of the world’s most respected courts, the international community will reap enormous benefits.

Ruth Gavison, ‘Privacy and the Limits of Law‘ (1980) 89(3) Yale L J 421.

A path-breaking analysis of the concept of privacy as a question of access to the individual and to information about him. An account of the reasons why privacy is valuable, and why it has the coherence that justified maintaining it as both a theoretical concept and an ideal. Finally, the paper looks into the move from identifying the grounds of the value of privacy to the different question of whether and to what extent privacy should be protected by laws. While privacy is a useful concept in social and moral thought, it may well be the case that it is relatively rare that it should be protected by the law in cases where its violation does not also involve infringement or violation of other important interests or values.

Theophilus Tawiah, ‘Privacy Right and Common Law Protection‘ (2012) 7 J. Law, Policy & Globalisation 12

In English law, there are calls by a section of the public that Parliament should enact privacy law, to offer protection for the right to privacy which is guaranteed under the Human Rights Act 1998. However, the current tort system provides various ways of protecting privacy. The article demonstrates how various means can be used to protect such rights. The author argues that ‘the let us study as we go’ approach adopted by the court will be more appropriate, rather than legislation by parliament.

UNCHR ‘General Comment 16’ in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies’ (8 April 1988) UN Doc HRI/GEN/1/Rev.8

This comment focuses on the equal right of men and women to the enjoyment of all economic, social and cultural rights.

Wilfred Feinberg, ‘Recent Developments in the Law of Privacy‘ (1948) 48 Columbia L Rev 713

This article captures the historical development of the right to privacy in the United States. In this regard, it discusses all the relevant case law of the Supreme Court of United States and traces the extent of recognition of the right to privacy.

Celebrity Rights and the Right to Publicity

Andrew T Kenyon and Esther Milne, ‘Images of Celebrity: Publicity, Privacy, Law‘ (2005) 10(4) Media & Arts Law Review 311

Celebrity has been a notable focus in recent media and cultural research, with work considering its textual construction as well as its production, circulation and consumption. Concurrently, celebrities’ claims for privacy from certain media publications have been important in English, European and New Zealand case law – law which has significance beyond those jurisdictions and has received considerable Australian attention from lawyers and commentators. In light of themes about celebrity from cultural and media research, this article examines an illustrative legal claim by celebrities where privacy was sought from particular media coverage; namely, the long running Douglas v Hello! litigation. The authors explore ideas about the celebrity as a commodity and the treatment of photographs in privacy-related claims, and draw out two points. The first concerns legal awareness of what could be called the celebrity industry and its role in the construction and circulation of media content. In some situations, these industrial aspects of celebrity may carry doctrinal weight for issues such as when reasonable expectations of privacy exist. The second raises matters about the uses of celebrity content in terms of subjectivity – uses which are suggested in contemporary media and cultural research – and the role of privacy itself within identity formation, which has been raised recently within Australian legal commentary on privacy.

Anurag Pareek and Arka Majumdar, ‘Protection Of Celebrity Rights-The Problems And The Solutions‘ (2006) 11 JIPR 415 Celebrity rights are unique rights, which are distinct from others. It is a form of property, which can be exclusively enjoyed by the celebrity himself. Being a property, it is also susceptible to unauthorized trespasses. This ‘trespass’ takes place mainly in two ways- when the privacy of the celebrity is sought to be compromised for the sake of money, and secondly, when the celebrity’s right to publicity is defeated by its unauthorized use. Both the situations require law and the judiciary to intervene and ensure justice. In the absence of any specific regulatory mechanism to address these issues, it often becomes difficult to protect various celebrity rights like personality/moral rights, privacy rights & the publicity/merchandising right. In India, there is no specific legal remedy for infringement of celebrity rights. Thus the authors identified merits and demerits of various approaches, which protect the publicity rights of a celebrity and recommended appropriate legal regime suited to India.

Bridget Carnachan, ‘Celebrity Privacy after Hosking v Runting: Entertaining the Public with Private Lives’ 11 Auck U L Rev 86 (2005). The article reviews the issue of privacy law in New Zealand with reference to the landmark “Hosking v Runting” case in 2004. Privacy law and the protections that must be given to celebrities present a conflict of interest between freedom of expression and personal privacy. Several celebrities and journalists were interviewed to determine their views on celebrity privacy and the protection of their personal lives. The celebrities were in favor of the recognition of a tort of invasion of privacy with regard to publicity given to private information and the need for a code of ethics for the print media.

Chris Marsden, ‘Freedom of Expression, Privacy and the Media‘ (22 Apr 2009)

This articles discusses the issue about whether public figures have a lesser expectation of privacy due to their public image. It analyses the laws in various European countries and decisions of the European Court of Human Rights relating to this issue.

David Howarth, ‘Privacy, Confidentiality and the Cult of Celebrity’ (2002) 61(2) Cambridge L J 264.

This article deals with the constant conflict that exists between the right to privacy and confidentiality on one hand and the public nature of celebrities’ image. It refers to the complexities that arise when dealing with confidential information and the position of law on the same.

Diana M Daniels, ’Public Figures Revisited‘ (1984) 25 Wm & Mary L Rev 957

This article argues that although existing law has made the recovery by public figures for libel difficult, public figures have not been denied an effective remedy by having to overcome the hurdles of the actual malice standards of the New York Times case.  This is a rebuttal to the argument made by Professor Schauer, who argued that post the New Times judgment, libel actions by public figures have a very high standard.

Duncan Miller, ‘Do politicians and other public figures have (moral) privacy rights which can be asserted against the media?‘ (1996) 149 UCL Jurisprudence Review 149

This article discusses the scope of the right to privacy that celebrities can exercise against the media. It starts out by explaining the general uncertainty that exists with respect to the scope of the right to privacy. It also discusses case law relating to this issue.

Frederick Schauer, ‘Can Public Figures Have Private Lives?‘ (2000) 17 Social Philosophy and Policy 293

A rash of very public scandals, of which the behavior of President Clinton and the activities of the late Princess Diana are merely the most famous examples, has raised the question of the appropriateness of the disclosure, or the newsworthiness, of the so-called “private” lives of so-called “public” figures or “public” officials. That is the question addressed in this article.

Frederick Schauer, ’Public Figures (1984) 25 Wm. & Mary L. Rev. 905 (1984)

This article argues that post the New York Times judgment, public figures now have too high a standard to prove libel. This would mean that public figures are now have the same standard as public officials.

Garima Budhiraja, ‘Publicity Rights of Celebrities: An Analysis Under the Intellectual Property Regime‘ (2011) 6 NSLR 85

This article attempts to explore the meaning and justification behind celebrity rights. It also examines the incapacity of the current framework of intellectual property regime to protect publicity rights, thereby explaining the recent cases of violation. The article further suggests an appropriate framework for protection of publicity rights after an in depth study of the regime in the US and some European countries where they are well established and enforceable.

Irwin Spiegel, Public Celebrity v Scandal Magazine the Celebrity’s Right To Privacy (1957) 30 S Cal L Rev 280

This article addresses the issue of the right to privacy for celebrities. Particularly, it addresses how this right is almost non-existent for celebrities due to the high standards that they are required to comply with and how scandal magazines can exploit the private life of citizens due to this high standard.

Jamie E Nordhaus, ‘Celebrities’ Rights to Privacy: How Far Should the Paparazzi Be Allowed to Go?‘ (1999) 18 Review of Litigation 285

The techniques of the paparazzi are accused of causing undue harm to the rights of celebrities. This articles discusses the right to privacy and its corresponding right to publicity. It addresses the current legislative solutions that exits and also suggests certain solutions to protect the rights of celebrities.

Justice IDF Callinan, ‘Privacy, Confidence, Celebrity and Spectacle’ (2007) 7 Oxford U. Commw L J 1

Celebrity implies commercial potential readily exploitable by both the celebrity itself and by the media. In this article, the author explores whether this commercial potential can be enhanced by the legal protections privacy could afford. He argues that the law should provide remedies for celebrities to protect their identity and name, which he likens to a brand. He further argues that the traditional tort of breach of confidence is insufficient for these purposes. Instead, he concludes a new tort of intrusion of privacy should be recognised enabling the person entitled to privacy to have significant control over their brand.

Lee Goldman, ‘Elvis is Alive, But he Shouldn’t Be: The Right to Publicity Revisited‘ (1992) BYU L Rev 597

This article discusses the scope of the right to publicity under the First Amendment. It starts off with a brief historical discussion of the derivation and development of the right of publicity and the rationale given by courts while recognizing this right. The author concludes that that the right of publicity is not merely superfluous, but harmful. Recognition of a right of publicity conflicts with free market. The final conclusion of the author is that absent confusion or misappropriation of a celebrity’s performance, there is no valid reason to protect the commercial value of a celebrity’s name or likeness.

Lawrence Friedman, ‘The One-Way Mirror: Law, Privacy, and the Media‘ (2004) 82 Wash U L Q 319.

In every complex society, there have been famous people. But only in modern times do we have celebrities. Only in modern times do we have mass media; and it is the mass media that make it possible for us to be so familiar with famous people. The author argues that this familiarity, is the essence of the celebrity. The author talks about some of the social and legal consequences of this aspect that has created, nurtured, and fostered the celebrity culture.

Scott. J. Shackelford,Fragile Merchandise: A Comparative Analysis of the Privacy Rights for Public Figures‘ (2012) 49(1) Am Business L J

Over a century after Warren and Brandeis first presented the right to U.S. jurists for their consideration, privacy has become a central player in U.S. law. But nations around the world, in particular the common and civil law nations of Europe that share similar legal cultures with the United States, are grappling with how best to strike a balance between the competing rights of privacy and freedom of expression – both of which are critical to the functioning of democratic society. Existing literature has not fully drawn from this reservoir of international experience to inform the debate about U.S. privacy rights. This Article addresses this omission by using comparative case studies from the United States, the United Kingdom, France, and Germany to analyze areas of convergence and divergence in privacy rights. The focus of each case study will be the right of privacy afforded to public figures, particularly those at the cusp of the classic definition, i.e., involuntary or temporary public figures. Though some semblance of a bright-line rule has evolved for voluntary public figures, involuntary public figures in the United States are accorded spotty protection varying by jurisdiction. Lacking guiding Supreme Court precedent, this has led to divergent practice especially regarding the definition of “public interest,” which is fundamental to defining the limits of freedom of expression. Thus, this Article draws from the comparative analysis to build a proposal for a clarifying definition of the public interest that helps delineate privacy rights, as well as arguing for the adoption of a graduated structure of privacy protections for public figures along the lines of the German and European Court of Human Rights models.

Susana Herrera Damas and Carlos Maciá Barber, ‘Media harassment of public figures from the ethical perspective of journalists in Madrid‘ (2009) E-Archivo, el Repositorio Institucional de la Universidad Carlos III In the area of journalistic ethics, there is very little exhaustive fieldwork on group behaviour in the processes for obtaining information, much less on media harassment of public figures and the ethical evaluation of the professionals themselves. In-depth interviews and surveys of media professionals indicate that journalists in Madrid show themselves largely in favour of harassment of politicians currently in office. Supporters and detractors of pursuing celebrities who sell exclusives are divided in equal numbers. On the other hand, those surveyed overwhelmingly reject the persecution of members of the royal family, especially their relatives, and are against the hounding of relevant personalities who do not trade in their private lives.

DS Gurney, ‘Celebrities and the First Amendment: Broader Protection Against the Unauthorized Publication of Photographs‘ (1985) 61 Ind L J 697

The article takes a comprehensive look primarily at the state of online privacy in India arising out of the Information Technology Act, 2000

Thomas George, ‘Celebrity-focused culture highlights need for statutory right to publicity‘ (Nov 2010) World Trademark Review

This article discusses that there is an urgent need to enact a legislation in India to protect celebrity publicity rights. This in furtherance of recognition of the moral right to the fruits of one’s labour and the exclusive right to one’s own commercially marketable image.

The Right to privacy in light of social media

Arun Mal and Jenisha Parikh, Facebook and the Right To Privacy: Walking A Tight Rope (2011) 4 NUJS L Rev 299

This article address the various instances of violation of right to privacy that have taken pa,ce over social networking websites. It seeks to provide solutions to such violations by suggesting remedies under the law of tort, users’ protest and industry self-regulation. Since these alternatives only allow for a limited protection, the article stressed on the need to broaden the theoretical paradigm within which the right to privacy has traditionally been viewed in order to adapt it to the newer issues arising with respect to social networking websites.

Bryce Clayton Newell, ‘Rethinking Reasonable Expectations of Privacy in Online Social Networks‘ (2011) 17 Richmond J L & Tech 12

Present U.S. privacy law is predominantly based on the ideals of individual control, autonomy, and liberty from governmental intrusion, despite the fact that its inspiration was an idea grounded on the importance of protecting human dignity and an “inviolate personality.” On the other hand, Europe has predominantly taken the position that privacy protects human dignity and fosters personal relationships. Privacy laws based on the right to a private life, such as those generally found in European jurisdictions, more accurately reflect the realities of the digital age and properly protect individual privacy online. In combination, protecting autonomy through principles based on human dignity and recognizing that reasonable expectations can have their place in the context of online communities and digital communication – albeit often mediated and less private than some forms of offline communication – would result in more effective individual safeguards and more satisfactory results.

Daniel Solove, ‘A Tale of Two Bloggers, Free Speech and Privacy in the Blogosphere‘ (2006) 84 Wash U L Rev 1195. Existing law lacks nimble ways to resolve disputes about speech and privacy on the Internet. Lawsuits are costly to litigate, and being sued can saddle a blogger with massive expenses. Bloggers often don’t have deep pockets, and therefore it might be difficult for plaintiffs to find lawyers willing to take their cases. People seeking to protect their privacy must risk further publicity in bringing suit. These are certainly serious problems, but the solution shouldn’t be to insulate bloggers from the law. The author argues that the law should hold bloggers to a reasonable standard of care to avoid revealing private information about others.

Haley Plourde-Cole, ‘Back to Katz: Reasonable Expectation of Privacy in the Facebook Age‘ (2010) Fordham Urn L J 571

This note will examines the change in the reasonable expectation of privacy in light of the greater presence of social media. It also deals with whether government surveillance of Global Positioning System (“GPS”) devices attached to suspects’ vehicles constitutes an unreasonable search and seizure. This note argues for the adoption of a rule that GPS surveillance constitutes a search and seizure and should require a warrant, because the public’s growing awareness and/or consent to use of personal information by private companies has not translated into a shift in an individual’s reasonable expectation of privacy in their movement twenty-four hours per day.

The Defence of Public Interest

David E Morrison and Michael Svennevig, ‘ The Public Interest, the Media and Privacy‘ (March 2002)

This is a comprehensive report on the issue of privacy and includes views on the definition of privacy and public interest, the changes in light of the internet and the opinions of focus groups on the issue.

David E Morrison and Michael Svennevig, ‘The defence of public interest and the intrusion of privacy: Journalists and the public‘ (2007) 8 Journalism 44

The article examines the relationship between the public interest and the right to privacy, with the focus on journalistic practice and new values, and the general growth of social surveillance. The article then draws on a series of in-depth interviews with UK media regulators and media interest groups. These were in turn followed by a series of focus groups, leading to the development of a UK national sample survey. The research offers the basis for a more complex analysis of the factors involved in judging the relative rights of the media to intrude and individuals’ rights to be protected from intrusion. Central to this analysis is the development of a new concept – ‘social importance’. Unlike the established concept of ‘public interest’, social importance is readily operationizable, scalable in terms of intensity, in its potential applications.

David Gorman, ‘Rights in Collision: The Individual Right of Privacy and the Public Right to Know‘ (1978) 39 Mont L Rev 249

This article is a dialectical exposition on the inherent tension between the individual right to privacy and the public right to know. Each right is analysed independently and then the article focuses on the judicial weighing of where the two rights collide.

Eric Easton, ‘Public Importance: Balancing Proprietary Interests and the Right to Know‘ (2003) 21 Cardozo Arts & Ent L J 139.

This article endeavors to bring some coherence to First Amendment jurisprudence by identifying the source of ‘the right to know’ and surveying its contemporary application. The article argues that the First Amendment’s penumbral “right to know” is the source of a “public importance test” that the Supreme Court has reluctantly, but ineluctably, adopted to help mediate between the proprietary claims of private citizens and the reportorial imperatives of the press.

Reasonable Expectation of Privacy

Elizabeth Paton-Simpson, ‘Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places‘ (2000) 50 (3) Univ of Toronto L J 305

This article examines and critiques the ‘reasonable paranoid’ approach to the assessment of reasonable expectations of privacy. It explains how this approach has distorted thinking about privacy in public places and how it has also been applied in analogous situations where individuals take risks with their privacy, such as by using the telephone, giving a blood sample, or having a film developed. The first part of this article describes the reasonable paranoid standard in American privacy law and examines to what extent this approach has been influential in Canada and New Zealand. The second part addresses the empirical and normative assumptions underlying the reasonable paranoid standard. It attempts a realistic, non-paranoid assessment of the risks to privacy in public places, affirming that reasonable people do, in fact, enjoy and rely upon a significant degree of public privacy. It disputes the notion that failure to take precautions such as Prudence’s signifies a waiver of any rights to privacy. Finally, it argues that public privacy is an important and valuable component of the overall level of privacy for an individual or society and should be afforded a degree of legal protection, while maintaining a balance with competing interests

Helen Nissenbaum, ‘Protecting Privacy in an Information Age: The Problem of Privacy in Public‘ (1998) 17 Law and Philosophy  559

In this article, the author argues that information and  communications technology, by facilitating surveillance, by vastly enhancing the collection, storage, and analysis of information, by enabling profiling, data mining and aggregation, has significantly altered the meaning of public information. As a result, a satisfactory legal and philosophical understanding of a right to privacy, capable of protecting the important values at stake in protecting privacy, must incorporate, in addition to traditional aspects of privacy, a degree of protection for privacy in public.

Madhavi Divan, ‘The Right to Privacy in the Age of Information and Communications‘ (2002) 4 SCC (Jour) 12

This article argues that development of the media in modern times has a special relevance to the evolution of the law of privacy as technology blurs the traditional boundaries between systems. It also compares the situation in India to that of USA and England. The author concludes that is time Indian lawmakers enacted laws to protect privacy rather than laws that license intrusion into private affairs. At the same time, it is also necessary to preserve the tenuous balance between the right of the individual to be let alone and the fundamental right to free speech, expression and information.

Robert Mills, ‘Radio, Television and the Right of Privacy’ (1968) 13 Journal of Broadcasting 51

This article explores the changes that need to be incorporated in the law relating to the right to privacy in light of new communication media such as the radio and television. The arguments made here can be correlated to arguments made by several authors about the need to revise privacy laws in light of the internet and development in technology.

Randall P Bezanson, ’The Right to Privacy Revisited: Privacy, News, and Social Change, 1890-1990‘ (1992) 80 Cal L Rev 1133.

This article is a modern take on the seminal article by Warren and Bradeis on the right to privacy. The author argues that the context has changed drastically since the nineteenth century, and hence there is a need to redefine the contours of the right to privacy in accordance with the latest communication media. Particularly, the author argues that there must a duty on those in possession of confidential information, rather then privacy hinging on an individual’s expectation.

Balancing Conflicting Interests

Gerald Ashdown, ‘Media Reporting and Privacy Claims- Decline in Constitutional Protection for the Press’ (1977) 66 Ky L J 759

This article deals with the conflict that exists between the freedom of press and the right to privacy of an individual. It discusses case law relating to this issue and tries to identify the criteria based on which courts have balanced these two conflicting rights.

Michael Doherty, ‘The Right to Tell One’s Own Story  Balancing Privacy and Expression Claims‘ (2007) 5 Web JCLI This article addresses recent developments in the courts’ approach to the difficult balance between privacy claims and expression claims under Articles 8 and 10 European Convention of Human Rights. It argues that, despite clear guidance from the House of Lords, the lower courts have adopted a methodology that does not promote a fair and effective balancing of the rights. It argues further that the personal interest of an individual in communicating their own story has not been consistently recognised and incorporated into the balancing process. As personal speech claims are based on the same values of informational autonomy and self-development as privacy claims, this results in a conceptual as well as a practical imbalance.

Relevant Case Laws from India US & EU

ABC v Commissioner of Police, W.P.(C.) No. 12730/2005 and C.M. Nos. 9505/2005, 13315/2005 & 12222/2007,  2013 High Court of Delhi (Feb. 2).

The present case deals with the right to keep the name of a victim of sexual assault private and the conduct of the media to publicize the same. J. Sanghi of the Delhi HC in a recent judgment (ABC v Commissioner of Police) held that certain media houses, which publicized the name of the victim in a particular case would be liable for having intruded the privacy of the victim. Though the judgment itself is laudable there are some problems that exist in the conception of the right to privacy, which leads to a varied application of the right in question.

Furthermore, with that particular case in question, the name of the victim was already in the public domain in the present case through a voluntary interview conducted by the mother of the Petitioner on Star TV. The behavior of Aaj Tak is deplorable, in that they tried to interview the Petitioner in a deceitful manner but the law laid down in Petrnonet clearly states that once information is in the public domain it is no longer private, in accordance with this holding, Aaj Tak did not violate the privacy of the Pettitioner, though they maybe liable for other offences.

Campbell v MGN [2004] UKHL 22

Well-known model Naomi Campbell was photographed leaving a rehabilitation clinic, following public denials that she was a recovering drug addict. The photographs were published in a publication run by MGN. Campbell sought damages under the English law. The House of Lords held, 3:2 (Lords Nicholls and Hoffman dissenting), that MGN was liable. Lord Hoffman and Lord Nicholls dissented on the ground that as the Mirror was allowed to publish the fact that she was a drug addict and that she was receiving treatment for her addiction that printing the pictures of her leaving her NA meeting was within the margin of appreciation of the editors as they were allowed to state that she was an addict and receiving treatment for her addiction, while the majority (Hale, Hope, Carswell) believed that the picture added something of ‘real significance’.

Curtis Publishing Co v Butts 388 US 130 (1967)

In this case, the Supreme Court of the United States established the standard of First Amendment protection against defamation claims brought by private individuals.

The decision held that, while news organizations were protected from liability when printing allegations about public officials under the Supreme Court’s New York Times Co. v. Sullivan decision (1964), they may still be liable to public figures if the information they disseminate is recklessly gathered and unchecked.

The decision was the result of a libel lawsuit filed by former Georgia Bulldogs football coach Wally Butts against the Saturday Evening Post. The lawsuit arose from an article in the magazine alleging that Butts and Alabama head coach Bear Bryant had conspired to fix games. The court ruled in favor of Butts.

David Murray (through his litigation friends Neil Murray and Joanne Murray) v Express Newspapers and Big Pictures [2008] EWCA Civ 446

D took a photograph of C, the infant son of the writer J.K. Rowling, being pushed by his father down an Edinburgh street in a buggy with his mother walking alongside. The photograph was taken covertly using a long range lens and was later published in the Sunday Express. C (by his parents as litigation friends) issued proceedings against the publisher of the Sunday Express and D for breach of privacy / confidence and under the Data Protection Act 1998. The claim against Express Newspapers was settled. D applied to strike out C’s claim as disclosing no reasonable cause of action. The main issue in the case was relating to C’s liability. C’s claims for breach of privacy / confidence and under the DPA 1998 were struck out. As regards the former claim: “…on my understanding of the law including Von Hannover there remains an area of innocuous conduct in a public place which does not raise a reasonable expectation of privacy; and secondly, that even if the ECtHR in Von Hannover has extended the scope of protection into areas which conflict with the principles and decision in Campbell, I am bound to follow Campbell in preference. Because I regard this case as materially indistinguishable from the facts in Hosking v Runting I am satisfied that on that test it has no realistic prospect of success.” (para. 68) The DPA claim was dismissed on grounds that C was unable to establish causation or damage of a species which s.13 allowed to be recovered.

District Registrar & Collector v Canara Bank AIR 2005 SC 186

The A.P. State Legislature amended Section 73 of the Stamp Act, 1899 which gave inspecting officers not only the power to search premises but also the power to seize deficiently stamped documents. The purpose behind the amendment was to combat stamp duty evasion and also to supplement the stamp revenue of the state. The amendment was challenged before the Andhra Pradesh High Court as the amendment had given unbridled power to the officers with respect to exercising discretion and, consequently the amendment was held to be arbitrary and violative of Article14 of the Constitution of India. The decision of the High Court was challenged by the Appellant before the Supreme Court, and the Respondent contended that the impugned provision amounted to a violation of the fundamental Right to Privacy. The Supreme Court upheld the A.P. High Court decision and reiterated recent Supreme Court decisions and held that the Right to Privacy was implicit in the Constitution of India. Furthermore, that the impugned amendment was arbitrary and violative of Article 14 of the Constitution, thus it cannot be construed as procedure established by law under Article 21 of the Constitution. Therefore the amendment was held unconstitutional as the Right to Privacy had been violated in the absence of procedure established by law.

Gobind v State of Madhya Pradesh (1975) 2 SCC 148

In this case, the Supreme Court held that the regulation which provided for surveillance by various means was not violative of Article 21 of the constitution, as the regulation was “procedure established by law” as required under Article 21 of the constitution. However the court accepted the right to privacy within a limited sphere.

Petronet LNG v Indian Petro Group, CS (OS) No. 1102/2006, 2009 High Court of Delhi (April 13)

The Plaintiff (LNG Petronet), a company setting up LNG terminals in the country approached the Court asking it to restrain the Defendant from publishing information relating to the plaintiff’s commercial developments on the defendants website at www.indianpetro.com. The Plaintiff alleged that these news reports published by the Defendants were interfering in its contract negotiations with third parties as well as limiting the Plaintiffs ability to negotiate as to the rates for LNG supply.

The legal grounds utilized to press for the relief was on the grounds of, (a) breaches to the right of privacy; (b) publication of the information related to confidential negotiations and contractual clauses; (c) the publication violated the SEBI regulation on price sensitive information. The court rejected all the three contentions, playing on “public interest” served in the disclosure of the information as opposed to a “gag order” placed on a journalistic entity, especially when the information related to a company which was partly owned by the government as well as provided public utility services.

Hosking v Runting [2004] NZCA 34

Background:
A well-known television personality, Mr. Hosking, asked the High Court of New Zealand to prevent a photographer and the publisher of a magazine from taking and publishing photographs of his children until they turned 18. The High Court ruled against Mr. Hosking, reasoning that there had been no invasion of privacy because the photographs were taken while the children were in a public place, and that people shouldn’t be able to sue about their privacy being invaded anyway. Mr. Hosking brought the case to the New Zealand Court of Appeal, where he argued that people should be able to sue when their privacy has been invaded.

Issue and resolution:

Children’s right to privacy. The Court recognised that people in Zealand should be able to sue when their privacy has been invaded and noted the need to develop the common law consistently with New Zealand’s international law obligations to protect privacy as found in international treaties, including the CRC. In this case, however, the Court concluded that privacy had not been violated and the pictures could be published. The Court held that privacy should be protected only where: (1) the information was obtained where there was a reasonable expectation of privacy (for instance, in a family home); and (2) the publicising of that information would be highly offensive to a reasonable person. As such, the protection of children’s privacy is not absolute. Rather, these two criteria must be met before a child or their representative can bring a successful case on invasion of privacy into court.

Court reasoning:

The Court noted that protection of an individual’s privacy must be balanced against other people’s right to freedom of speech. Even though children should be afforded special consideration due to their vulnerability, children’s privacy can only trump other people’s freedom of speech in limited circumstances. Therefore, children and their representatives can only bring lawsuits about invasion of privacy where the children have been placed in danger or (1) the information about the children was obtained where there was a reasonable expectation of privacy and (2) publicising it would be highly offensive to a reasonable person. The Court found this standard to be consistent with relevant provisions in CRC, which are only directed at preventing serious physical and mental abuse of children. In this case, the photographs of Mr. Hosking’s children were obtained in a public setting where there was no reasonable expectation of privacy and nothing about the photographs was highly offensive to a reasonable person. Furthermore, there was no evidence to suggest there was a serious risk to the children if the photographs were published.

In Re S (FC) (a Child) [2004] UKHL 47

A child’s older brother, DS, died of acute salt poisoning in the Great Ormond Street Hospital.  At a hearing in July 2002, Hedley J found that the salt poisoning had been administered by the child’s mother.  As a result of this finding, the mother was charged with murder.  In the criminal proceedings against the mother, the judge made an order under s.39 of the Children and Young Persons Act 1933 prohibiting publication of information calculated to lead to the identification of the child.  This order was subsequently discharged on the basis that s.39 was inapplicable because the child was not a witness or otherwise concerned in the proceedings.  The child’s guardian applied to the High Court for an injunction under its inherent jurisdiction preventing publication of any information which might lead to the child’s identification, including the name or address of the child or its school and any picture of the child or of its parents.  Upon considering the interplay between Article 8 and Article 10 of the Convention and the balancing exercise required under the inherent jurisdiction and the Convention, Hedley J decided that the order should contain a proviso such that the newspapers were not prevented from publishing the identity of the defendant or DS or photographs of them in reports of the criminal trial.  The appeal to the Court of Appeal was dismissed. The child’s guardian appealed to the House of Lords.

The House of Lords dismissed the appeal on the following grounds:

Since the Human Rights Act 1998 came into force, the earlier case law about the existence and scope of inherent jurisdiction need not be considered in the present case or in similar cases.  The foundation of the jurisdiction to restrain publicity in a case such as this was now derived from Convention rights..  In carrying out the balancing exercise under the Convention, the court should be guided by the principles established in Campbell v MGN Ltd [2004] 2 WLR 1232.

Article 8 was engaged.  However, the impact on the child was essentially indirect.  He would not be involved as a witness and there would be no need to refer to him.  No such injunction had previously been granted under the inherent jurisdiction or under the Convention.  The interference with Article 8 rights, however distressing for the child, was not of the same order when compared with cases of juveniles directly involved in a trial.

Article 10 was engaged.  The freedom of the press was of central importance in a democratic society. A criminal trial was a public event and the glare of contemporaneous publicity ensured that it was conducted properly.  Full and unrestrained reporting of criminal trials promoted the values of the rule of law;

The grant of the proposed injunction would have several adverse consequences.

Hedley J had correctly analysed the case under the Convention.  Given the weight traditionally accorded to the importance of open reporting of criminal proceedings it was appropriate for him, in carrying out the balance required by the Convention, to begin by acknowledging the force of the argument under article 10 before considering whether the right of the child under article 8 was sufficient to outweigh it.

Indu Jain v Forbes Inc, IA 12993/2006 in CS (OS) 2172/2006, 2007 High Court of Delhi (Oct. 12).

The case concerned an effort by Indu Jain (matriarch of the Bennett, Coleman group) to stop Forbes from featuring her family, in the Forbes List of Indian Billionaires. There were detailed arguments on privacy made in the case, though the court eventually came out against Indu Jain and allowed the publication. One of the key points on which the case turned was the initial supply of information and cooperation of the representatives of Indu Jain with Forbes. The court reasoned that a person who voluntarily provides information about themselves would be naturally precluded from claiming privacy or protection on it later. Hence one can see that the privacy argument is a complete non-starter.

Katz v US 389 U.S. 347 (1967)

Charles Katz used a public pay phone booth to transmit illegal gambling wagers from Los Angeles to Miami and Boston. Unbeknownst to Katz, the FBI was recording his conversations via an electronic eavesdropping device attached to the exterior of the phone booth. Katz was convicted based on these recordings.

“One who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.”  Certain details, such as shutting the door on the telephone booth, help determine if a person intends for a conversation to be private. Thus, private conversations can be made in public areas.

Justice Harlan’s Concurring opinion summarizes the essential holdings of the majority: “(a) that an enclosed telephone booth is an area where, like a home, and unlike a field, a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment; and (c) that an invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant.”

Kharak Singh v State of Uttar Pradesh AIR 1963 SC 1295

In Kharak Singh Vs State of U.P, the petitioner Kharak Singh was charged in a case of dacoity in 1941 but was subsequently released as there was no evidence found against him. After his release the U.P police in accordance with regulation 228 under chapter XX of the U.P police regulations opened a “history sheet” with regard to Kharak Singh. The village ‘chaukidar’ and police constables for the purpose of surveillance used to enter his house, wake him up, knock and shout at his door during night hours and thereby disturb him. He has to report to the village ‘chaukidar’ or police station before leaving for another village and also mention his destination and period within which he would return. His village police station on receipt of such information immediately informs the police station of his destination where he is kept under similar surveillance. Sometimes Kharak Singh was compelled to woke up from sleep and accompany the visiting police constables to the police station.

The aggrieved petitioner Kharak Singh thereby challenged the validity of chapter XX and some other provisions of the U.P police regulation on the ground that they violate the right guaranteed under Article 19(1) (d) and 21 of the constitution of India.

The Supreme Court held that, regulation 236(b) which authorizes “domiciliary visits” is void and unconstitutional. The majority Judges in the decision of this case said that “our constitution does not in terms confer like constitutional guarantee”. However the dissenting opinion of Justice Subba Rao was in favour of deriving a “right to privacy” from the fundamental right guaranteed under Article 21.

McKennitt v Ash [2006] EWCA Civ 1714

In 2005, McKennitt was involved in an acrimonious court case in the United Kingdom when her former friend and employee, Niema Ash, intended to publish a book which contained intimate details of their friendship. McKennitt argued that much of the book contained confidential personal information, which Ash had no right to publish. The English courts found that there had indeed been a breach of confidence and a misuse of McKennitt’s private information, and the case is likely to set important precedents in English law on the privacy of celebrities. The Court of Appeal affirmed the lower court’s decision in 2006, and that affirmation was reaffirmed when the House of Lords declined to hear what would have been a final appeal.

MGN v UK App no 39401/04 (ECtHR, 18 Jan 2011)

The case concerned the complaints of the publishing company Mgn Limited that the United Kingdom breached its freedom of expression rights as a result of:the national courts’ finding against it for breach of Ms Naomi Campbell’s privacy by publishing articles and pictures in The Daily Mirror about her drug-addiction treatment; and it being ordered to pay “success fees” agreed between Ms Campbell and her lawyers in relation to the same privacy proceedings.

The Court observed that MGN Limited had been asked to pay the “success fees” which Ms Campbell had negotiated with her lawyers.

The requirement to pay those fees had been based on domestic legislation, in particular the 1990 and 1999 Acts, the Conditional Fees Arrangement Orders 1995 and 2000 as well as the Civil Procedure Rules and the relevant Cost Practice Directions. The Court also accepted that the “success fee” agreement had sought to ensure the widest possible public access to legal services for civil litigation, including to people who would not otherwise be able to afford a lawyer.

The Court then examined whether the recoverability of substantial “success fees” against unsuccessful defendants in civil actions was reasonable and proportionate.

The Court paid particular attention to the fact that the general “success fee” scheme had been the subject of detailed and lengthy domestic public consultations initiated by the British Ministry for Justice since 2003. While there had been no legislative follow-up to the consultations’ conclusions, they had identified fundamental flaws in the “success fees” scheme, especially in cases such as the present one. Those consultations (and notably the Jackson report) criticised the lack of any qualifying requirements for claimants of “success fees”; the lack of incentive for claimants to control “success fees” given that those were only payable if they won the case and often by the other losing party; the fact that often the losing party was forced to settle early despite good prospects of a successful defence only to avoid ever-mounting “success fees”; and the opportunity for lawyers in the “success fee” scheme to “cherry-pick” cases likely to succeed and to avoid claims with smaller chances of success.

As to the pressure on defendants (including different media and publishers) to settle cases which could have been defended, that represented a risk to media reporting and thus – possibly – to freedom of expression. The Ministry of Justice had acknowledged following those consultations that recoverable “success fees” rendered the costs’ burden in civil litigation excessive and that the balance had swung too far in favour of claimants and against the interests of defendants, particularly in defamation and privacy cases.

Ms Campbell had been wealthy and therefore not someone who risked not having access to court on financial grounds and for whom the “success fees” scheme had been intitially set up. The case of Mgn Limited had not entirely lacked merit given that the Court of Appeal and two out of the five judges of the House of Lords had decided in the applicant’s favour in the domestic proceedings. In addition, while the proceedings had been lengthy and somewhat complex, the “success fees” claimed in respect of the two appeals before the House of Lords alone had amounted to more than GBP 365,000.

The Court concluded that the requirement on Mgn Limited to pay the “success fees”, which had been agreed by Ms Campbell and her solicitors, was disproportionate to the aim sought to be achieved by the introduction of the “success fee” system. Accordingly, there had been a violation of Article 10.

Perry v The United Kingdom App no 63737/00 (ECtHR, 17 July 2003)

The applicant had been arrested in connection with a series of armed robberies of mini-cab drivers, and released pending an identification parade. When he failed to attend that and several further identification parades, the police requested permission to video him covertly. He was taken to the police station to attend an identity parade, which he refused to do. Meanwhile, on his arrival, he was filmed by the custody suite camera, adjusted to ensure that it took clear pictures during his visit. The pictures were inserted in a montage of film of other persons and shown to witnesses. Two witnesses of the armed robberies subsequently identified him from the compilation tape. Neither Mr Perry nor his solicitor was informed that a tape had been made or used for identification purposes. He was convicted of robbery and sentenced to five years’ imprisonment.

The Court assessed that the ploy adopted by the police had gone beyond the normal use of this type of camera and amounted to an interference with the applicant’s right to respect for his private life. The interference had not been in accordance with the law because the police had failed to comply with the procedures set out in the applicable code: they had not obtained the applicant’s consent or informed him that the tape was being made; neither had they informed him of his rights in that respect.

PG and JH v The United Kingdom App no 44787/98 (ECtHR, 25 September 2001)

B. and the applicants were charged with conspiracy to rob. During their trial, evidence was derived from the use of the covert listening devices. The police also requested itemised billing for calls from the telephone in B.’s flat.

Observing that the information about the use of B.’s telephone was obtained and used in the context of an investigation and trial concerning a suspected conspiracy to commit armed robberies, the Court found that the measure was necessary in a democratic society. There had therefore been no violation of Article 8.

However, the use of covert listening devices was not in accordance with the law existing at the time in question, the Court held that there had been a violation of Article 8.

The court however, held that where the evidence was obtained as a result of entrapment or coercion, and has been subject to examination in an adversarial trial, no unfairness can be made out.

The Court observed that the taped evidence at the trial was not the only evidence against the applicants. Furthermore, they had had ample opportunity to challenge both the authenticity and the use of the recordings. It was also clear that, had the domestic courts been of the view that the admission of the evidence would have given rise to substantive unfairness, they would have had a discretion to exclude it. The Court further considered that there was no unfairness in leaving it to the jury, on the basis of a thorough summing-up by the judge, to decide where the weight of the evidence lay.

R Rajagopal v State of Tamil Nadu AIR 1995 SC 264

This case involved the balancing of the right of privacy of citizens against the right of the press to criticize and comment on acts and conduct of public officials. The case related to the alleged autobiography of Auto Shankar who was convicted and sentenced to death for committing six murders. In the autobiography, he had commented on his contact and relations with various police officials. The Supreme Court observed as follows:

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, childbearing 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.

Time Inc v Hill 385 US 374 (1967)

In 1952, three escaped convicts took James Hill, his wife, and their five children hostage in their Whitemarsh, Pennsylvania, home. After nineteen hours, the family was released unharmed. The convicts were later apprehended in a violent clash with police during which two of them were killed. In 1953, Joseph Hays’ published a novel based on the Hill family’s ordeal. When the novel was subsequently made into a play, Life Magazine (“Life”) printed an article about the play that mirrored many of its inaccuracies concerning the Hill family’s experience. Alleging that it deliberately misrepresented his story, Hill sought damages against Life.

The question that arose before the court: Is a publication, containing misrepresentations about the subject of its coverage, protected under the First Amendment’s freedom of speech guarantees?

The Court set aside the Appellate ruling against Time because the lower court failed to instruct the jury that Time’s liability was contingent upon a showing that it knowingly and recklessly published false statements about the Hill family. The Court explained that absent a finding of such malicious intent on the part of a publisher, press statements are protected under the First Amendment even if they are otherwise false or inaccurate. The Court remanded for retrial under the new jury instruction.

Von Hannover v Germany (2005) 40 EHRR 1

The applicant, Princess Caroline von Hannover, was born in 1957 and is the eldest daughter of Prince Rainier III of Monaco. She is a national of Monaco, where she lives. Since the beginning of the 1990s Princess Caroline von Hannover has been campaigning – often through the courts – in various European countries to prevent photographs about her private life being published in the sensationalist press. She has on several occasions unsuccessfully applied to the German courts for an injunction preventing any further publication of a series of photographs which had appeared in the 1990s in the German magazines Bunte, Freizeit Revue and Neue Post. She claimed that they infringed her right to protection of her private life and her right to control the use of her image. In a landmark judgment of 15 December 1999 the Federal Constitutional Court granted the applicant’s injunction regarding the photographs in which she appeared with her children on the ground that their need for protection of their intimacy was greater than that of adults. However, the Constitutional Court considered that the applicant, who was undeniably a contemporary “public figure”, had to tolerate the publication of photographs of herself in a public place, even if they showed her in scenes from her daily life rather than engaged in her official duties. The Constitutional Court referred in that connection to the freedom of the press and to the public’s legitimate interest in knowing how such a person generally behaved in public.

The applicant maintained that the decisions of the German courts infringed her right to respect for her private life, as guaranteed by Article 8 of the Convention, since they failed to afford her adequate protection from the publication of photographs taken without her knowledge by paparazzi on the ground that, in view of her origins, she was undeniably a contemporary “public figure”. She also complained of an infringement of her right to respect for her family life.

The Court noted at the outset that certain photographs of the applicant with her children or in the company of an actor at the far end of a restaurant courtyard were no longer the subject of the application, as the Federal Court of Justice had prohibited any further publication of them on the ground that they infringed the applicant’s right to respect for her private life.

There was no doubt that the publication by various German magazines of photographs of the applicant in her daily life either on her own or with other people fell within the scope of her private life. Article 8 of the Convention was accordingly applicable. It was therefore necessary to balance protection of the applicant’s private life against freedom of expression, as guaranteed by Article 10 of the Convention.

Although freedom of expression also extended to the publication of photographs, this was an area in which the protection of the rights and reputation of others took on particular importance, as it did not concern the dissemination of “ideas”, but of images containing very personal or even intimate “information” about an individual. Furthermore, photos appearing in the tabloid press were often taken in a climate of continual harassment which induced in the person concerned a very strong sense of intrusion into their private life or even of persecution.

The Court considered that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photographs and articles made to a debate of general interest. In the case before it, the photographs showed Caroline von Hannover in scenes from her daily life, and thus engaged in activities of a purely private nature. The Court noted in that connection the circumstances in which the photographs had been taken: without the applicant’s knowledge or consent and, in some instances, in secret. It was clear that they made no contribution to a debate of public interest, since the applicant exercised no official function and the photographs and articles related exclusively to details of her private life.

Furthermore, while the general public might have a right to information, including, in special circumstances, on the private life of public figures, they did not have such a right in this instance. The Court considered that the general public did not have a legitimate interest in knowing Caroline von Hannover’s whereabouts or how she behaved generally in her private life even if she appeared in places that could not always be described as secluded and was well known to the public. Even if such a public interest existed, just as there was a commercial interest for the magazines to publish the photographs and articles, those interests had, in the Court’s view, to yield to the applicant’s right to the effective protection of her private life.

The Court reiterated the fundamental importance of protecting private life from the point of view of the development of every human being’s personality and said that everyone, including people known to the public, had to have a “legitimate expectation” that his or her private life would be protected. The criteria that had been established by the domestic courts for distinguishing a figure of contemporary society “par excellence” from a relatively public figure were not sufficient to ensure the effective protection of the applicant’s private life and she should, in the circumstances of the case, have had a “legitimate expectation” that her private life would be protected.

Having regard to all the foregoing factors, and despite the margin of appreciation afforded to the State in this area, the Court considered that the German courts had not struck a fair balance between the competing interests. Accordingly, it held that there had been a violation of Article 8 of the Convention and that it was not necessary to rule on the applicant’s complaint relating to her right to respect for her family life.

The Court held unanimously that the question of the application of Article 41 of the Convention (just satisfaction) was not ready for determination. It reserved it in its entirety and invited the Government and the applicant to submit observations in writing.

Von Hannover v Germany (no 2) App no 40660/08 and 60641/08 (ECtHR, 7 February 2012)

In this case, the court held that there had not been a violation of Article 8. In doing so, the Court reiterated the broad scope of Article 8. In relation to the protection of one’s personal image, the Court confirmed that “the right to protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication.” In relation to Article 10, the Court reiterated the importance of “pluralism, tolerance and broadmindedness” in a democratic society and the corresponding necessity of information that is favourably received and that which “offends, shocks, or disturbs”. Photographs, however, particularly those taken for the purposes of “sensationalist” press may amount to a serious intrusion into an individual’s private life and the circumstance in which they are obtained may even invoke a feeling of harassment or persecution on the part of the individual. The Court nonetheless emphasised that Article 8 and Article 10 are of equal value and that the margin of appreciation should be the same in both cases

Peck v UK (2003) 36 EHRR 41

The applicant was filmed by a CCTV camera operated by Brentwood Borough Council in a public street moments after he had attempted to commit suicide by slashing his wrists with a kitchen knife. Some months later, the Council issued two photographs taken from the CCTV footage for publication in an article about the preventative benefits of CCTV. The applicant’s face was not specifically masked. Extracts from the CCTV footage were also shown on regional television in which the applicant’s face had been masked at the Council’s request. The Applicant sought judicial review of the Council’s decision to release the CCTV footage. His application was rejected and confirmed by the Court of Appeal. He applied to the ECHR. The court held as follows:

Following the disclosure of the CCTV footage, the applicant’s actions were seen to an extent which far exceeded any exposure to a passer-by or to a security observation and to a degree surpassing that which the applicant could possibly have foreseen. The disclosure by the Council therefore constituted a serious interference with his right to respect for private life. There were not relevant or sufficient reasons to justify the disclosure by the Council without obtaining the applicant’s consent or ensuring as far as possible that his identity was masked. The applicant’s subsequent media appearances did not diminish the serious nature of the interference. Accordingly, the disclosures by the Council were not accompanied by sufficient safeguards and they therefore constituted a disproportionate interference with the applicant’s rights under Article 8.

[1] Planning Commission of India, Report of the Group of Experts on Privacy pp. 60-61, 16 October 2012, available at http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf (Last accessed 24 December 2013).

[2] Planning Commission of India, Report of the Group of Experts on Privacy pp. 21-27, 16 October 2012, available at http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf (Last accessed 24 December 2013).

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