Right to Privacy Bill 2010 — A Few Comments

Posted by Elonnai Hickok at Jul 20, 2011 07:00 AM |
Earlier this year, in February 2011, Rajeev Chandrasekhar introduced the Right to Privacy Bill, 2010 in the Rajya Sabha. The Bill is meant to “provide protection to the privacy of persons including those who are in public life”. Though the Bill states that its objective is to protect individuals’ fundamental right to privacy, the focus of the Bill is on the protection against the use of electronic/digital recording devices in public spaces without consent and for the purpose of blackmail or commercial use.

Specific Recommendations

 

The use of electronic recording devices in public is an important and expansive aspect of privacy, which is yet to be directly covered by Indian law. Though the Bill addresses the basic usage of electronic devices with built-in cameras, it frames the violation as a personal violation. In doing so, the Bill has taken a punitive approach, making it criminal to take photographs in situations outside of the laid-out regulations, rather than protective in nature, i.e., working to protect individuals from harassment and blackmail, and offer forms of redress to those damaged. 

The Bill fails to address scenarios such as Google street view, satellite photographs, news channels, and live feeds at events and conferences. In these situations live data is being transmitted and posted on the Web for public to view by the media. When looking at the dilemma of photographs being taken in public by the media, the privacy interests are different to those that are based on control of personal information alone. They are substantive, as opposed to informational, and engage directly with individual dignity, autonomy, and the freedom of expression. For example, the interest in freedom of expression encompasses both those of the photographers and journalists producing material for his/her journal. Can a journalist print a photograph taken in a public space — of a public figure, which the public figure did not consent to, and which that person considers defamatory? 

Interestingly, Europe has strong laws regulating the taking of photographs in public spaces, but these rules are covered by the Protection from Harassment Act, 1997 (UK), which speaks specifically to the media’s behaviour towards public figures — or they fall under a tort of misuse. In the US taking photographs only becomes an issue in the use of the photograph. Essentially anyone can be photographed without consent except when they have secluded themselves in places where they have a reasonable expectation of privacy such as dressing rooms, restrooms, medical facilities, or inside a private residence. This legal standard applies regardless of the age, sex, or other attributes of the individual. Once a photograph is taken, and if that photograph is used for commercial gain without consent or publicizes an otherwise private person inappropriately, then that person can be held liable under the tort of misappropriation. 

Specific Comments to the Bill

Misguiding Title

The title of the Bill is, the Personal Data Protection Bill, 2006," but the scope of the Bill is focused on regulating the use of electronic recording devices, and it does not include many aspects of privacy. So we recommend that the title of the Bill be modified to "The Electronic Recording Devices Bill, 2010".

Inappropriate Blanket Use of Privacy 

The introduction to the Bill states that its purpose is "for the protection of the right to privacy of persons including those who are in public life so as to protect them from being blackmailed or harassed or their image and reputation being tarnished in order to spoil their public life and for the prevention of misuse of digital technology for such purposes and for matters connected therewith and incidental thereto." 

Comment: Notwithstanding the fact that violations of privacy extend beyond blackmail, harassment, and defamation, and that digital technologies are not the only vehicles for privacy violations, it is important to qualify that privacy is not a blanket right, and that for public persons, the privacy that they are afforded is determined by balancing their interest against the public interest. 

Narrow Definition of Public Figures 

Section 2 (b) of the Bill states: "persons in public life" includes the representatives of the people in Parliament, state legislatures, local self government bodies, and office bearers of recognized political parties

Comment: Persons in public life include persons beyond the political sphere, specifically those in higher positions that influence the behaviour, lifestyles, and culture of the general population. Thus, we recommend that this definition be extended to include actors, actresses, athletes, artists, and musicians, CEOs, and authors.

Insufficient Limits to the Right to Privacy

Section 3 (1) states: “Notwithstanding anything contained in any other law for the time being in force every person, including persons in public life, shall have the right to privacy which shall be exclusive, unhindered and there shall be no unwarranted infringement thereof by any other person, agency, media or anyone: 

Provided that sub-section (1) of section 3 shall not apply in cases of corruption, and misuse of official positions by persons in public life.

Comment: We recommend that the right to privacy, as any right, need not be identified as exclusive or unhindered. The right to privacy must be determined on a case by case basis relative to the public interest, and, while cases of corruption and misuse of official position by persons in public life certainly qualify, they do not encompass the wider variety of situations in which an individual’s right to privacy should be limited. For instance, if a public figure speaks out on an issue in a way that contradicts an earlier position that was captured on video, shouldn’t that be allowed to be made public?  If a public figure is photographed in a morally questionable position, shouldn’t that be allowed to be made public?  Indeed, even for private individuals, privacy is a matter of context.  In airports and other sensitive public places it is commonly accepted that an individual’s right to privacy can be limited. If an individual has a disease such as HIV, under what circumstances should some or all of the greater public should be informed and their right to privacy may be limited? 

Limited Scope of Technology 

Section 4 of the Bill states: "No person shall use a cellular phone with an inbuilt camera, if it does not produce a sound of at least 65 decibels and flash a light when used to take a picture of any object or person, as the case may be. 

Comment: We recommend that this clause clarifies if only cellular phones, and not cameras, computers, or other devices with built-in cameras are required to produce the sound of at least 65 decibels.

Overly Complicated Clauses 

Section 5 of the Bill states: Notwithstanding anything contained in any other law for the time being in force, no person shall make digital recording or take photographs or make videography in any manner whatsoever of: 

Section 5(a): any part or whole of a human body which is unclothed or partially clothed without the consent of the person concerned. 

Section 5 (b): any part or whole of a human body at any public place without the consent of the person concerned and

Section 5 (c): the personal and intimate relationship of any couple in a home, hotel, resort, or any place within the four walls by hidden digital or other cameras and such other instruments, or any place within the four walls by hidden digital cameras and such other instruments…with the intent of blackmail or of making commercial gains from it or otherwise. 

Comment: Section 5 currently lists certain circumstances in which photographs are not allowed to be taken of individuals in public without consent if they are to be used for the purpose of commercial gain or blackmail. Blackmail or commercial gains are not the only ways in which digital recordings of people can be misused. Certainly, taking such pictures to post for purposes of hurting one’s reputation or causing humiliation is as reprehensible as taking pictures for commercial gain, so the provision is too narrow.  It may also be overboard, because a person may be captured in an artistic or political photograph but have, for example, bare arms or legs.  That would be a picture of a part of a human body at a public place.  We recommend that the list of offences include misappropriation and false light, and that the manner of the picture-taking not be limited to clauses (a) to (c) above.

Section 5 is the first instance in which the use of digital recordings for commercial gain has been mentioned as a violation in the Bill. We recommend that commercial gain as a violation should be added to the introduction of the Bill.

Document Actions