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Privacy Perspectives | Media trials in India: An unwritten carve-out to the right to privacy? Related reading: What you should know about India's forward-moving privacy bill



The trending topic in India at this moment is the phrase “media trial.” A media trial is a popular expression referring to the media acting as judge, jury and executioner in news cases and declaring a verdict before the court passes its judgment. A media trial is often conducted in “parallel” alongside the police investigation.

The deaths of Aarushi Talwar in 2008 and Sheena Bora in 2015 were targeted by Indian media, and most recently, the death of Indian actor Sushant Singh Rajput has garnered similar media coverage, leading once again to a conflict with the fundamental human right to privacy.

Over the last few months, the majority of news channels in India have conducted parallel investigations into the actor’s death in the form of an unrestrained “media trial.” The media published details, such as his medical history, bank account details, including transactions, and numerous private texts, photographs and videos of various other people regardless of its relevance to the investigation. This has resulted in the violation of the privacy rights of the individuals and defy the doctrine of “innocent until proven guilty.”

This leads us to wonder, has the media been given an exceptional right by the Indian constitution to intrude into the privacy of individuals in the name of “freedom of the press”? In this article, we will look at media trials, India’s so-called fourth estate of democracy, vis-a-vis the right to privacy, including any checks and balances on it by the rule of law.

Are media trials constitutional?

While courts in India haven’t explicitly declared media trials unconstitutional, “Freedom of Speech and Expression” is guaranteed under Article 19(1) of the constitution.

It is believed this freedom allows media to intervene and help people build opinions and views on various issues of national interest; however, too much intervention is also a matter of concern.

Article 19(1)(2) of the Indian constitution has contoured this right by listing grounds of restrictions on the freedom of speech and expression as no freedom in this constitution is absolute and unfettered. Privacy is not counted as a ground for imposing reasonable restrictions to the right to freedom of speech and expression. Additionally, there is no specific legislation in India that directly protects the right to privacy against excessive publicity by the press including media trial.

Recently, social activists filed a petition before the High Court of Bombay. They claimed the agencies investigating Rajput’s death leaked personal information to the media, which was then shared with the public. The court asked why there is no state regulation of electronic media. The court directed the central government to indicate the extent of state control exercised in respect of telecasting news having serious ramifications.

The conflict between freedom of press and right to privacy

When considering the conflict between freedom of media to disseminate information and the right to privacy, there has always been a fundamental question about the relative weight of privacy versus public interest. Although India currently does not have a codified law on the right to privacy, it has acquired constitutional recognition leading to the drafting of the Personal Data Protection Bill in 2019.

One of the questions to mull over is whether the PDPB, which is soon to come into force as India’s privacy law, includes a provision to safeguard the individuals from privacy encroachment by the media.

The answer to the question is unfortunately no, as PDPB, under Article 36(e) has allowed exemptions for processing personal data for journalistic purposes. Journalists have been given the liberty to distribute views, opinions regarding any information that they, acting as data fiduciary, consider masses to have an interest in.

As per the Indian government, the rationale behind giving such unrestricted liberty is to ensure that press and media channels are independent of unnecessary restrictions and not debarred from doing their job. However, Article 36(e) certainly gives the impression the government needed to put in more thought while exempting journalists from the responsibility to protect privacy under the PDPB.

In fact, the government has not only been heedless to such privacy violations by the media but has also oversupplied media intervention and strengthened their power through this bill. First, the obligation on the data fiduciary to decide which information that they deem masses to have an interest in does not create a perfect balance between the fundamental right of privacy and it seems to be quite discretionary.

Media outlets should have to show “what is in public interest” rather than the presentation of “what the public is interested in.” Second, the PDPB doesn’t mandate standards of necessity and proportionality to be met by journalists before infringing the right to privacy. Moreover, it exempts the media from complying with the basic obligations applicable to data fiduciaries, including the requirement of purpose limitation and data retention. The data privacy bill fails to address the need to safeguard the privacy encroachment of individuals from the media.

The only requirement for the media to claim this exception is to ensure that they adhere to the code of ethics issued by media self-regulatory organizations.

Are there any checks and balances?

Media trials in general, and in this particular case, are tantamount to “contempt of court,” which is also prescribed by the Indian constitution and the Contempt of Courts Act, 1971. The act defines contempt by stating, “No publication, which is calculated to poison the minds of jurors, intimidate witnesses or parties or to create an atmosphere in which the administration of justice would be difficult or impossible, amounts to contempt.”

Apart from the above, there is no statutory regulatory mechanism for the media. They are governed by several self-regulatory bodies, such as the News Broadcasters Association, Broadcast Editors Association and the News Broadcast Federation. Membership is completely voluntary, and each authority has its own set of guidelines.

In fact, the members of all such self-regulatory bodies include the office bearers of leading news channels. Moreover, complaints about guideline violations are handled by an independent body appointed by the members themselves.

The Press Council of India, which has no jurisdiction on electronic media, issued an advisory maintaining that media should not conduct their own parallel trial or forecast the decision to avoid pressure during investigation and trial. Unfortunately, the watchdogs, their guidelines and advisories have not been taken seriously.

Media without a doubt, form the backbone of a democratic society and does assist in administering justice; however, irresponsible media reportage without ethical and social responsibility is detrimental to society. “With great power comes great responsibility,” and thus, the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Indian constitution corresponds with the responsibility to protect the human right of privacy considering that if journalistic institutions are left unchecked, it will lead to a conflict of rights and ultimately anarchy.

The basic human right, the right to privacy of an individual regardless of their position in a court case cannot be put at stake for news channels to serve their own selfish interests. It is evident that in the absence of any proper regulation by the government, media should not be given carte blanche in the investigations process. They should not be allowed to exercise the fundamental right of free speech and expression to transgress bounds of prudence.

Considering that currently there are no precedents set for the media channels to regulate their content with respect to a violation of the right to privacy, courts should take suo moto cognizance of this transgression and set the record straight until the time a robust privacy law comes into force in India.

In addition, a codified law for the functioning of media channels along with one exclusive regulatory body is the need of the hour for the proper regulation of electronic media and also to safeguard the right to privacy as that is certainly inevitable.

Moreover, exceptions granted for journalistic purposes without adequate government guidelines are not only antagonistic for democracy but the consequences but detrimental to the social order.

The PDPB, with all its missing pieces, is a long-awaited step in the right direction toward data privacy. Hopefully, the joint committee of both the houses of Parliament will carefully balance the journalistic freedom afforded in the bill with the need for the individual right to privacy.

Photo by Tingey Injury Law Firm on Unsplash

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