While analysing the proposed IT Act Amendments, the privacy aspects were also discussed at
http://perry4law.blogspot.com/2005/09/critical-analysis-of-proposed-it-act.html . I think it is high time that the “privacy aspect” must be discussed in some detail now. II. The relevant provision
The relevant provision that may be used for countering the “sting operations” is section 72(3) that reads:
(3) Whoever intentionally captures or broadcasts an image of a private area of an individual without his consent, and knowingly does so under circumstances violating the privacy of that individual, shall be liable to pay compensation not exceeding Rs. 25 lakhs to the person so affected, and shall also be liable for imprisonment for a term not exceeding one year or with fine not exceeding Rs 2 Lakhs, or with both on the complaint of the person so affected.
However, section 72(4) bars the courts from taking cognizance of any offense punishable under sub-section (3) except upon a complaint filed by the aggrieved person in writing before a Magistrate.
III. Right to privacy
Article 21 of the constitution confers the right to privacy. This is not expressly mentioned in it but the same has been enunciated by way of judicial interpretation by the Supreme Court. It is personal in nature and only the concerned person has a right to control it subject to the restrictions imposed by the law.
In Kharak Singh v. state of UP (1963) justice Subba Rao, while expressing the minority view, laid down the foundations for the development of law of privacy in India and observed that the concept of ‘liberty’ in article 21 was comprehensive enough to include privacy.
In Gobind v. State of MP (1975) the Supreme Court observed that ‘right to privacy’ must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child bearing.
In R.Rajagopal v. State of TN (1994) the Supreme Court held that the right to privacy is a ‘right to be let alone’. 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.
In Mr. X v. Hospital Z (1998) the Supreme Court held that the right to privacy may, apart from contract, also arise out of a particular specific relationship, which may be commercial, matrimonial or even political. Public disclosure of even true private facts may amount to an invasion of the right to privacy.
In this background the legality of sting operations must be judged.
IV. Legality of sting operations under IT Act, 2000[1].
The proposed analysis will be made by ansewring certain queries:
(a) What are the provisions that are likely to have an impact, implicitly or explicitly, on "sting operations"?
(a) Section 72(3) of the proposed IT Act amendments may “impliedly” cover a “sting operation” that is “vulgar” in nature. It cannot be applied to any other sting operation.
(b) Does the proposed amendments take into account that "sting operations" justify invasion of privacy for a larger public interest?
(b) No. The proposed IT Act Amendment is not considering that aspect either expressly or impliedly. That, however, cannot be excluded since the Constitution of India warrants such inclusion.
(c) If the amendments are passed, and a TV channel conducts an operation, would the courts be able to take the "public interest journalism" issue into account?
(c) Yes. The court will take the “public interest journalism” into consideration except where that is used for “adventure”, “news making”, “vulgar reporting”, etc.
(d) If national interest is being compromised in the comfort of privacy, would the invasion of privacy be justifiable under the provisions of the act and/or before a court of law?
(d) If national interest is involved then there cannot be a question of either invasion or violation of privacy right.
(e) What prompted the government to introduce this provision in the proposed IT Act amendments?
(e) The secret video recording that is frequently found these days is the real reason for this provision and it should be strictly confined to that aspect only. The sting operations must be excluded from the ambit of this provision unless where they were used for “adventure”, “news making”, “vulgar reporting”, etc.
(f) Will it cover “sting operation” not involving capturing of private parts?
(f) The proposed amendments can never include sting operation not covering “vulgar recordings”.
V. Conclusion
In short, the traditional sting operations are not covered by the proposed amendments and only “vulgar recording” is covered. Further, every recording involving ‘private parts” is not per se vulgar and it depends upon the facts and circumstances of each case. If the reporting is “predominantly” meant for some other “purpose”, including making public an “offence or contravention”, then merely because some private parts were also recorded should not make it an offence under this provision. However, the media must take “precautions” and “avoid” showing the actual facts and details as they are. These facts and details must be kept for the appraisal of the court only and media must not make them public unless anonymity is maintained in all its aspects. Otherwise, it may find itself in trouble.
[1] Liability under other statutes is excluded and not discussed in this work.
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