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A Critical Analysis Of Right To Privacy And Defamation

Research Objectives
  • To analyze the meaning of defamation.
  • To know the types of defamation along with its exemptions.
  • To understand how right to privacy protects a person from defamation.
  • To strike a balance between freedom of speech and expression and defamation.
  • To compare the meaning of right to privacy, with regards to defamation, as per international laws and conventions with the laws present in India.

Research Methodology
A doctrinal method of research has been used in preparing this research paper which includes collection of secondary data from various sources such as books, articles, research papers, online legal databases, bare acts etc. The information collected from these sources form the crux and content of the research project so as to come to a valid conclusion. Landmark Judgements and cases have been referred in detail to understand how various statues have been used to pronounce judgements in similar cases. Important text books and study materials have also been referred for the same.

Review Of Literature
Evolution of Right to privacy in India, legalservicesindia, Shubham, http://www.legalserviceindia.com/legal/article-276-evolution-of-right-to-privacy-in-india.html

This refers to the connection between the right to privacy and protection from defamation and false publications. It also consists of a list of rights and liberties that have been guaranteed under right to privacy.

Black Law Dictionary
This source mentions various definitions to the meaning of privacy. It also encompasses various definitions and theories about privacy given by eminent jurists like Jude Cooley who defines privacy as the right to be left alone.

Universal Declaration of Human Rights, 1948
This is an international convention that is considered to be one of the most sacred documents to interpret human rights. It also mentions about the importance of privacy and regards it as an inalienable human right.

It provides for analysis of the cases pertaining to right to privacy in India. It also gives a detailed chronology about the evolution of the right to privacy in India by critically analyzing different case laws and precedents.

Britannica
It provides for the definition of defamation from the legal point of view as well as a simplified explanation in lay-man terms. It also explains the types of defamation along with illustrations and exemptions to defamation.

(Bare Act) Constitution of India, 1950
It provides for various articles in the constitution that are relevant to the topic. For example, article 19 and article 21 of the constitution.

(Bare Act) Indian Penal Code,1860
It provides for sections relevant to the topic. For example, section 499- Defamation.

List Of Cases
  1. Govind V. State of Madhya Pradesh 1975 SCC (2) 148
  2. Kharak Singh V, State of Uttar Pradesh 1964 SCC (1) 332
  3. Smt. Maneka Gandhi V. Union of India 1978 SCC (1) 248
  4. Naz Foundation V. Govt. of NCT of Delhi WP(C) No.7455/2001
  5. People's Union for Civil Liberties V. Union of India (1997) 1 SCC 301
  6. Justice K.S. Puttaswamy (Retd.) and another V. Union of India (2018) SCC Online SC 1642
  7. Bilal Ahmed Kaloo V. State of A.P. 1997 7 SCC 431
  8. Navtej Singh Johar V. Union of India (2018), 1 SCC 791

Introduction
Defamation is according to law, causing some harm to a person's reputation through false publication (communicating it to a third party) with an intention to cause disrepute to that particular person or group of persons.[1] Defamation is an essential concept not only in Tort law but also in Criminal law [2]as well. There are two types of defamation- libel and slander. While slander means making oral statements, libel on the other hand means making publishing statements i.e. in a written, printed or published form. It can also be recorded and aired (with the advent of media).

Nowadays the most common places where libelous statements can be made are:
  • Newspapers and letters to editors of newspapers
  • Public comments to media (print and digital), including websites
  • Blogs
  • Comments on blogs
  • Social media

Illustrations:
Slander- Telling your colleagues that X, who is also your colleague, that he is going to be expelled because he misbehaves with the boss while being intoxicated, when nothing of that sort actually happened.

Libel- Commenting on someone's blog that he/she is a traitor and is supporting organizations that work against your country when there's no actual proof of it.

Since the theme of the report is Defamation and Right to Privacy, the researcher would now try to give a brief on what right to privacy is.

This is a term which isn't very easy to conceptualize and has a variety of meanings and interpretations attached to it.

Black Law Dictionary defines it as right to be left alone.[3]

The basic intent behind this is to protect a person's publications, writings, his opinions and it not only extends to theft or trespass to person and/or his property but also against alleged and fake allegations, comments and publications while protecting the original and genuine ones.[4]

The Constitution of India incorporates Right to Privacy under Article 21, which is a considered necessary of right to life and private liberty. Stressing at the term 'privacy', it is a dynamic concept which has to be elucidated. The scope of Article 21 is multi-dimensional under the Indian Constitution. Law of torts, Criminal Laws in addition to property Laws additionally understand right to privacy.

Privacy is something that offers with person privacy and additionally which became necessary to be included in advance earlier than the passing of a landmark case, i.e., K.S. Puttaswamy v. Union of India [5]in 2017 as it became, earlier, no longer taken into consideration an essential right under the Indian Constitution. However, our Indian judiciary has, at present, carved out a distinctive precinct concerning privacy and an upshot of this is Right to Privacy, it's implications, now, diagnosed as a fundamental proper, which is intrinsic under Article 21.

Analyzing Defamation & Its Exemptions

While a brief definition of definition has been given in the introduction to the project, the researcher would like to shed a little lighter over this topic. Defamation is an offence both under tort law and criminal law. When we talk with respect to India, we find its mention in the Indian Penal Code. It says that defamation is when somebody by words, gestures, signs or visible gestures or by mode of publication tries to harm the reputation of a person or even if he/she believes that such imputation would cause damage or to the person's reputation or image.

This also includes an array of explanations to the definition:
  • Impugning a deceased person so as to cause harm to his reputation is considered as defamation
    Illustration- A had a very lose character. He had many extra-marital affairs.
  • Impugning a company, an association or a group of individuals in such a way which harms their reputation is also considered as defamation.
    Illustration- Company A cannot be trusted for any deal owing to their dishonesty.
  • If the imputation assigned to the individual or individuals, does not, by other's estimation, both directly and indirectly, lowers or intends to lower the character of the person, then it is not considered as defamation.
    Illustration- A is a very honest man and is very well mannered. Although, this statement may not be true but it doesn't lower down A's reputation and it is actually a boost to his reputation, it is not defamation.
  • Any statement made ironically or any imputation assigned ironically with an intention to harm the reputation of the person is defamation
    Illustration- A says that B is a very honest man and can't steal C's book with an intention to impugn B of stealing C's book, it is defamation.

There are some exceptions to this also:
  • If we impute something regarding a person which is true and accurate and is published in public good, it is not defamation.
  • If a person expresses his opinion regarding a public servant with respect to his conduct in discharging his duty without harming his/her character unless the character is represented in his conduct duty, it is not considered as defamation.
  • It is not defamation if a person expresses his/her opinion on a person touching a public query without doing any harm to his reputation unless his reputation or character are represented in his/her conduct.
  • To publish true facts and reports of cases decided by the court is not defamation. [6]
Illustration- If A makes a remark that B, a public servant is incompetent in doing his duty is not defamation. It is his opinion which is protected by the constitution. But, if A says that it is owing to the corrupt character of B as a person that he is unable to perform his duty is defamation.

If a person impugns a person without publishing it, the person is not liable for punishment. This means that only when a person publishes an imputation regarding a person, can he be punished.[7]

The IPC also provides for the punishment for defamation. Section 500 provides for an imprisonment for a maximum two-year period or fine or both. [8]

Evolution Of Right To Privacy In India

The concept of Right to privacy is not static. It is dynamic. It has evolved with the passage of years since independence. Here is a brief description of the evolution of right to privacy:
  1. Kharak Singh V. State of U.P:
    The Honorable Supreme Court held that right to privacy does not exist. One judge, 'Justice Subba Rao' dissented by saying that right to privacy exists but it can't be incorporated as a fundamental right. [9]
     
  2. Govind V. State of Madhya Pradesh:
    It was after eleven years after the case state above, that privacy got very minutely recognized as part of personal liberty. [10]
     
  3. Smt. Maneka Gandhi V. Union of India and Anr:
    The Honorable Supreme Court said that the term personal liberty incorporates variety of rights such as right to privacy and some rights are also recognized by the constitution like article 19. It further stated that any infringing personal liberty, even privacy as it is covered under its ambit, shall be just, fair and reasonable. [11]
     
  4. Naz Foundation V. Govt. of NCT of Delhi:
    The Delhi HC examined section 377 of the IPC. It struck it down and decriminalized homosexuality and upheld the right to privacy by stating that private space in which a man can be himself. It talked about a sanctuary where people can stay away from the societal norms and be truly themselves.[12] This was later struck down by the Supreme court in 2013.
     
  5. Justice K.S. Puttaswamy (Retd.) and another V. Union of India:
    A nine judge bench was deciding a petition against the Aadhar scheme of the government where Aadhar and biometric linking was made mandatory for availing government schemes and benefits under it. The Supreme Court ruled that right to privacy is a fundamental right under article 21 and should be included under the right to live with dignity. It overruled Kharak Singh's case and declared privacy as a fundamental right.[13]
     

Some aspects regarding right to privacy:
  1. Tapping of phones:
    Owing to the new and recent technological developments, phone tapping with respect to right to privacy is debatable. But the Supreme Court in the right to privacy case upheld the judgment made in People's Union for Civil Liberties V. Union of India which considered a phone call as an individual's private matter and hence phone tapping is an infringement of right to privacy.[14]
  2. Gender priority:
    The judgment prohibited the incorrect portrayal of private life. It also said that every woman even if she is of easy virtue has the right of anyone not invading her privacy. Not only every woman but every gender has right to live with dignity.
  3. Sexual identity:
    The court held that in order to maintain a dignified life, the sexual autonomy and gender identity of an individual must be respected at any cost and discrimination against the sexual or gender identity of a person goes against personal dignity and against his / her right to freedom of expression and personal freedom. This was the basis for the abrogation of section 377 in Navtej Singh Johar V. Union of India[15]in 2018.
  4. Search and seizure:
    If the government or any public authority formulates or implements a procedure in this regard which is arbitrary in nature and hence against the personal liberty of a person, is said to be an infringement of his right to privacy. [16]

Right To Privacy As Per International Instruments And Conventions (With Regards To Defamation Also)

  • Universal Declaration of Human Rights, 1948- A person's home, family, privacy can't be infringed or intrude arbitrarily and a person's honor and reputation can't be attacked. Every person has the right to be protected by law from such intrusion. [17]
  • The International Convention on Civil and Political Rights, 1966- A person's privacy, home and family shouldn't be subjected to arbitrary intrusion and his/her reputation can't be harmed. It is the law which must protect every person from such infringement. [18]
  • The European Convention on Human Rights, 1953- it also mentions all those aspects of privacy as mentioned above. [19]

Right To Privacy With Respect To Defamation In India

A person's opinion is a part of his freedom of speech and expression[20] and is a part of the personal liberty[21] of a person. Therefore, if anyone tries to hold someone liable for his opinion, it is not only a violation of his right to freedom of speech and expression but also an infringement of his right to privacy [22], unless the opinion of the person is against the reasonable restrictions[23].

Defamation being a ground for the reasonable restriction harms the reputation of a person and is therefore now considered not only as a criminal offence but also as a violation of a person's right to privacy.

The publishing of information pertaining to an individual or a group of individuals without the person's or the group's knowledge is justified as long as the information is related to or is a part of public records, including court records and procedures.

Right To Privacy In The Digital Age

The digital age has been considered as one of the greatest development in the world. In the past three decades it has been evolving at much higher rate and the biggest reasons are the never stopping inventions to make it possible. As we move forward in this tunnel of digital age the world carves for 'easy and quick' resources.

With its advancement and acceptance all over the world it has even created some questions of privacy and security. Every now and then we hear about scams and loopholes in the protection data of every individual in this age. Furthermore, every country is now trying to develop laws that ensure protection of their citizens.

The loss of privacy is one of the most inevitable risk this mankind is facing with its progress in technology. Every information that we provide to the internet automatically gets rendered to be a property of this digital world. We need to understand that these threats are waiting for us as close as technology is to a person. With more accessibility the threat increases. There are thieves waiting for our information to use them in their benefits and to hack into our personal lives and property.

These people are called hackers who pose such threats. Apart from hackers there are allot of technology giants who are accused or have stolen our information like Facebook, Google, Yahoo and many more. The social media platforms and search engines are the places which hold most of our information. Apart from the information there are threats to our identity, money, burglary, stalking and many more which are going to discussed further. The rise of e commerce has given an opportunity to marketers of all the industries capture our activities online like of buying or just surfing the internet.

Conclusion
As it was mentioned earlier that right to privacy deals with many facets of law- criminal, tort, property, constitutional, etc. Therefore, when we talk about right to privacy with respect to defamation, any case pertaining to it will have both constitutional as well as criminal implications.

The right to privacy has evolved with many recent developments. Section 43 of the Information Technology Act, 2000[24] also deals with the Right to Privacy. According to this, accessing someone's computer and his/her personal information stored in it in an unauthorized manner is an offence and is also against a person's right to privacy. If that person uses that information to harm the reputation of a person by publishing it without the knowledge of the person, i.e. accessing his/her computer without his/her knowledge and making public that piece of information will be against the person's right to privacy.

The right to privacy was earlier non-existent and then it was considered as a statutory right[25]. Meaning, any decision made by the Parliament regarding right to privacy required simple majority, i.e. 50% + 1 of those present and voting. This would mean that it could be amended easily. Later, when the latest right to privacy judgment came out in 2017, right to privacy was considered as a fundamental right. Now, if the Parliament needs to make any decision pertaining to right to privacy, it needs a special majority, i.e. 2/3rd of members present and voting plus ratification by more than half of the state legislatures.

Right to privacy is not mentioned anywhere in the constitution. It is an impugned right and is derived from other provisions in the constitution[26]. Therefore, anything in light of right to privacy, be it defamation, personal liberty, etc. has to be interpreted with respect to different provisions in the constitution. This can very often lead to vagueness and ambiguity. Therefore, proper codified laws need to be made for understanding their clear applications and implications.

For example, The International Convention of Civil and Political Rights, 1966[27] talks about privacy with respect to causing harm to one's reputation. This provision is related to Privacy with respect to defamation. Now, India having ratified this instrument has an obligation to implement it by the virtue of formulating and implementing statutes. The government thus needs to make defamation an infringement to the right to privacy an offence explicitly.

Bibliography And References:
  1. Evolution of Right to privacy in India, legalservicesindia, Shubham, http://www.legalserviceindia.com/legal/article-276-evolution-of-right-to-privacy-in-india.html
  2. Black Law Dictionary
  3. Legalservicesindia.com
  4. Casemine.org
  5. Britannica.com
  6. Universal Declaration of Human Rights, 1948
  7. The International Convention of Civil and Political Rights, 1966
  8. The European Convention on Human Rights, 1953
  9. Information Technology Act, 2000
  10. (Bare Act) Constitution of India Act, 1950
  11. (Bare Act) Indian Penal Code, 1860
  12. SCC On-line
  13. Manupatra
End-Notes:
  1. Defamation Law, Brittanica, Brian Duignan, https://www.britannica.com/topic/defamation
  2. Section 499 of IPC, 1860
  3. What is Privacy?, Black Law Dictionary, https://thelawdictionary.org/privacy/
  4. Evolution of Right to privacy in India, legalservicesindia,Shubham, http://www.legalserviceindia.com/legal/article-276-evolution-of-right-to-privacy-in-india.html
  5. Justice K.S. Puttaswamy (Retd.) and another V. Union of India (2018) SCC Online SC 1642
  6. Section 499 of IPC, 1860
  7. Bilal Ahmed Kaloo V. State of A.P. 1997 7 SCC 431
  8. Section 500 of IPC, 1860
  9. Kharak Singh V. State of U.P 1964 SCC (1) 332
  10. Govind V. State of Madhya Pradesh 1975 SCC (2) 148
  11. Smt. Maneka Gandhi V. Union of India and Anr. 1978 SCC (2) 248
  12. Naz Foundation V. Government of NCT of Delhi WP(C) No.7455/2001
  13. Justice K.S. Puttaswamy (Retd.) and another V. Union of India (2018) SCC Online SC 1642
  14. People's Union for Civil Liberties V. Union of India (1997) 1 SCC 301
  15. Navtej Singh Johar V. Union of India (2018), 1 SCC 791
  16. Refer to 11
  17. Article 12 of Universal Declaration of Human Rights, 1948
  18. Article 17 of The International Convention on Civil and Political Rights, 1966
  19. Article 8 of The European Convention on Human Rights, 1953
  20. Article 19 (1) (a) of the Constitution of India, 1950
  21. Article 21 of the Constitution of India, 1950
  22. Refer to 11
  23. Article 19 (2) of the Constitution of India, 1950
  24. Section 43 of IT Act, 2000
  25. Govind V. State of Madhya Pradesh 1975 SCC (2) 148
  26. Justice K.S. Puttaswamy (Retd.) and another V. Union of India (2018) SCC Online SC 1642
  27. Refer to 18

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