“RIGHT TO PRIVACY AND FREEDOM OF PRESS- CONFLICTS AND CHALLENGES” Thesis submitted to the Cochin University of Science and Technology for the award of the degree of Doctor of Philosophy in The Faculty of Law By GIFTY OOMMEN Under the Supervision of Dr. V.S SEBASTIAN Associiate Professor SCHOOL OF LEGAL STUDIES COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY KOCHI-682 022, KERALA 2013 School of Legal Studies Cochin University of Science and Technology Kochi – 682 022, Kerala, India Dr. V.S. Sebastian Associate Professor This is to certify that the thesis entitled “Right to Privacy and Freedom of Press - Conflicts and Challenges” submitted by Ms. Gifty Oommen for the degree of Doctor of Philosophy, is to the best of my knowledge the record of bonofide research carried out under my guidance and supervision from 11/9/07 at the School of Legal Studies, Cochin University of Science and Technology. This thesis or any part thereof has not been submitted elsewhere for any other degree. Kochi -22 Dr. V.S. Sebastian June 2013 (Supervising Guide) This is to certify that the important research findings included in the thesis entitled “Right to Privacy and Freedom of Press-Conflicts and Challenges” have been presented in a research seminar at School of Legal Studies, Cochin University of Science and Technology on 25th January 2012. Gifty Oommen (Research Scholar) Dr. V.S. Sebastian (Research Guide School of Legal studies) Dr. N.S. Soman (Director, School of Legal studies) Kochi -22 June 2013 I declare that the thesis entitled “Right to Privacy and Freedom of Press- Conflicts and Challenges” for the award of the degree of Doctor of Philosophy is the record of bonofide research carried out by me under the guidance and supervision of Dr V.S.Sebastian, Associate Professor, School of Legal Studies, and CUSAT. I further declare that this work has not previously formed the basis of the award of any degree, diploma, associate-ship or any other title or recognition. Kochi-22 Gifty Oommen June 2013 (Research Scholar) In this age of electronics, when even minute gadgets can take pictures in most secretive and private places and transmit them to various information providers, which is further modified and manipulated to suit their varying needs, and all this within seconds and accessed by millions of viewers around the globe, is definitely an apt period for thinking of developing a protective regime against this excessive invasion of privacy by press. The danger lies in the fact that access to information has become so easy especially for the press through these years, while at the same time right of an individual to secure his privacy has become difficult due to great leaps and bounds in technology. The press especially the electronic media is absolutely unbridled with hardly any legislative mechanism enabling an unexpecting person, taken unawares by an overenthusiastic journalist, to book the journalist and the channel under law. This medium moves at the speed of light, looking at rate they throw informations across millions of people viewing them, without much verification done regarding the authencity of the news item, at the source level. The reason being high competition to bring the news at the earliest to the viewers and provide first-hand information to them, so as to keep the viewership rating up. This viewership rating in turn, generates breeding ground for more funds, through advertisements for the channel. Today it is sad to note, that most of the owners of the various news channels and newspapers are profit oriented and some of them are entrepreneurs and not basically media people. Due to lapse on the part of the government to frame stringent legislation to control this abuse of media power, violations by the media go rampant. i The Constitutional and legal rights, especially the basic right of privacy, which is an inherent right of being left alone in the solace of privacy is the most affected right of all rights violated by the media. Press has further developed a psedomechanism of escapism, when it comes to violation of privacy by pleading ignorance of the folly committed and tendering a technical apology. The fact remains that the damage to the image of the victim has already been done and there is no effective remedy to remove this damage neither from the part of the media nor by the government. While the right to freedom of press has undergone great progress and developed today as a powerful lobby, the equal and opposite right of an individual to be protected against unwarranted intrusions by press into their privacy has shrinked today and finds no established independent place in the Indian Constitution. India is a signatory to the United Nations Declaration of Human Rights 1948 and the International Covenant on Civil and Political 1966, the two major International instruments, building the foundations of the major democracies and the constitutions of the world. Both these instruments give an independent and upper position to right to privacy compared to right to freedom of speech and expression. The freedom of press finds its place under this right to freedom of speech and expression. Both these rights are the two opposite faces of the same coin. Therefore, without the right of privacy finding an equal place in Indian law compared to right to freedom of speech and expression, the working of democracy would be severely handicapped and violations against citizens rights will be on the rise. ii It was this problem in law and need to bring a balance between these two conflicting rights that induced me to undertake this venture. This heavy burden to bring in a mechanism to balance these two rights culminated in me to undertake this thesis titled “Right to Privacy and Freedom of Press – Conflicts and Challenges”. I am most thankful for the completion of my thesis to my only Lord and Saviour Jesus Christ, who was the strength and motivation to bring this thesis into its fullness. There were lot of times when my thought process would be moulded in absolutely different directions leading my thesis into a new light which I knew for certain, was my Jesus leading me gently as a shepherd leads his sheep into greener pastures and water. ‘I look up to the mountains, where will my help come from, my help comes from the Lord who made the heaven and the earth, he will not allow my foot to slip, he who watches over Israel will neither slumber nor sleep. He will keep me from all harm and watch over my life, the Lord will watch over my coming and going out both now and for evermore. Amen.’ My most respected guide, Dr V.S. Sebastian was so humble and gentle during the long process of thesis formation but at the same time meticulous when it came to correction. I cannot forget his special interest to make it the most perfect thesis under his guidance. My special thanks are due to him. I am very much obliged to my husband, who did the major typing for me in the first stage, which was indeed very helpful for me. I cannot help but remember my daddy, who wanted to see me finish this thesis, which sadly did not materialize in his lifetime. iii I thank Dr J.V.Vilanilam, the former Vice Chancellor of Kerala University, Dr Sebastian Paul, PCI member and K.M. Roy, senior journalist for giving me their views and thoughts in this matter. I thank all the staff and non-teaching staff of the School of Legal Studies, Cochin University of Science and Technology for their timely help in times of need. Gifty Oommen iv Preface i - iv Contents v - ix List of Cases x - xvi Abbreviations xvii Chapter 1 INTRODUCTION 01 - 08 Chapter 2 HISTORY OF RIGHT TO PRIVACY AND FREEDOM OF PRESS 09 - 34 2.1 History of Freedom of Press - International Perspective 2.2 History of Media in India 2.3 History of Privacy: International perspective 2.4 History of Privacy in India Conclusion Chapter 3 RIGHT TO PRIVACY AND FREEDOM OF THE PRESS IN THE UNITED KINGDOM 35 - 72 3.1 Press Freedom in the United Kingdom 3.1.1 State Limitations 3.1.2 Earlier Cases of Confidentiality 3.1.3 Public Figure – No Contract 3.1.4 Public Figure – Defamation 3.1.5 No privacy – When Everything Made Public 3.1.6 Slander 3.1.7 Among Whom Defamed 3.1.8 Liability falls on a Series of People 3.1.9 Construction in Cases of Defamation 3.1.10 Ordinary Man 3.1.11 Self Contained Answer/Question 3.1.12 Hidden Meaning (Innuendo) 3.1.13 False Innuendo 3.1.14 Offer of Amends 3.1.15 Damages 3.1.16 Injunction 3.1.17 Malicious Falsehood 3.1.18 Malice 3.1.19 Breach of Confidence 3.1.20 Campbell Confidence 3.1.21 Private Affairs in Public Domain 3.1.22 Employment Contract 3.1.23 Friendly Relationship v 3.1.24 Confidential Data in Public Interest 3.1.25 Public Figures 3.1.26 Extension by European Court of Human Rights 3.1.27 Family of Public Figure 3.1.28 International Efforts to Protect Privacy of Children and Victim 3.1.29 Photographs 3.1.30 Public Interest 3.1.31 Paparazzi and Diana 3.1.32 Broadcasting, through Television, and Internet 3.1.33 Remedies 3.1.34 Balance between Private Information and Public Interest 3.1.35 Before and after Human Rights Act 1998 3.1.36 Contempt of Court Proceedings 3.1.37 Criminal Court 3.1.38 Time of Publication 3.1.39 Fair and Accurate Report of Legal Proceedings 3.1.40 Innocent Publication or Distribution 3.1.41 Relevant Proceedings Active 3.1.42 Discussion of Public Affairs 3.1.43 Intentional Contempt 3.1.44 Reporting of Cases 3.1.45 Children or Young Person 3.1.46 Youth Justice and Criminal Evidence Act, 1999 3.1.47 Rape Cases 3.1.48 Journalists Sources Conclusion Chapter 4 RIGHT TO PRIVACY AND FREEDOM