Rights Watch
Right to privacy and modern media
The law of privacy is recognition of the individual's right to be let alone and to have his personal space untouched. The need for privacy and its due recognition as a fundamental right is a modern phenomenon. It is the product of an increasingly individualistic society in which the core has shifted from society to individual. In an earlier stage of the society, the law came up with the protection of physical interference with a person and property. As civilisation grown up, the personal, intellectual and spiritual aspects of the human personality attained recognition and the extent of the law expanded to give protection to these needs.
The Black law dictionary define privacy as the right that determines the non-intervention of secret surveillance and the protection of an individual's information. The term may also be defined as the rightful claim of the individual to determine the extent to which he wishes to share himself with others and his control over the time, place and circumstances to communicate with others. It means his right to withdraw or to participate as he thinks fit. The Indian Supreme Court in Sharda v. Dharmpal (2003) defines privacy as the state of being free from intrusion or disturbance in one's private life or affairs.
The exponential growth of the media in Bangladesh, particularly the electronic media in recent years, has brought into focus of right to privacy of an individual. The media has made it possible to bring the private life of an individual into the public realm, exposing him to the risk of an incursion of his space and his privacy. At a time when information was not so easily accessible to the public, the risk of such an invasion was reflectively remote. In Bangladesh, newspapers were, for many years, the primary source of information to the public. Even then, newspapers had a relatively limited impact given that the vast majority of the population was illiterate. This has changed today with a growth in public consciousness, a rise in literacy and perhaps most importantly, an explosion of visual and electronic media which have facilitated an unprecedented information revolution. It is no longer the film star alone who is in the public eye. Politicians, business personal, media personal, professionals and socialists actively square the media to venture themselves and to advance their agenda.
In the exercise of one fundament right e.g. freedom of press as enshrined in the constitution, it may sometime violates the right to privacy of other. If a person claims that it is his fundament right to keep his personal life out of the public gaze then question arises as to whether the right to privacy is a conclusive fundamental right or not? What should the consequence if it comes into conflict with freedom of press, speech and expression? The constitution of Bangladesh in article 43 expressly declares that every citizen shall have the right to the privacy of his correspondence and other means of communication. A creative interpretation of article 32 of the constitution may also implicit the idea of right to privacy in the fundamental right to life and liberty. The expressions right to life and liberty may include the right to be let alone which replicate the scheme of right to privacy. This proposition was extended by Mr. Justice Subba Rao in Kharak Singh v. State of U.P (AIR 1963) where he contended that- the concept of liberty under the constitution was comprehensive enough to include privacy and that a person's house, where he lives with his family in his castle and that nothing is more deleterious to a man's physical happiness and health than calculated interference with his privacy. Though the media and the press has the right to publish under the constitution but the press has no absolute right to publish anything which is related with person's privacy having no relation with public interest. If the publication of news went beyond the public record and published one's life story without his consent that would tantamount to an invasion of person's right to privacy. A citizen has the right to safeguard his own privacy that of his family, marriage, procreation, parenthood, child bearing education etc and no person has the right to publish anything relating to such matters without the consent of the person concerned. But a person can enjoy this right subject to certain limitations: first- where the matter has become a matter of public record, the right to privacy no longer subsist. Second, public officials are not entitled to claim privacy when the act or conduct in question relates to the discharge of the official duties. So the media while enjoying their constitutional right must also take into account the individual's constitutional right to privacy. Invasion of others fundamental rights by using their own are neither acceptable nor desirable.
In the age of revolutionised communications and super fast progress of print and electronic media along with aggressive competition among them, put the individual's right to privacy under siege. Where in many other states, there are now a variety of statutes in place e.g. Privacy Act, 1988 and the Data Protection Act, 1988 in the UK that seek to protect this right, the laws of Bangladesh on the subject lag far behind. Recent enactments do make some limited provision for the protection of individual's privacy but these are inadequate. However, the Right to Information Act, 2009 acknowledge the privacy of a person in section 7(h) by authorising the authority not to disclose any such information that may offend the privacy of the personal life of an individual. Initiation taken by the parliament in the recent past is appreciable but we expect some active role from our apex court in this regard which is still far from the Supreme Court of India in respect of recognising the right to privacy as focus constitutional right.
The right to freedom of press, speech and expression and the right to privacy are two sides of the same coin. One person's right to know and be informed may violate another's right to be left alone. Just as the freedom of press, speech and expression is vital for the dissemination of information on matters of public interest, it is equally important to safeguard the private life of an individual to the extent that it is unrelated to public duties or matters of public interest.
The writer is a lecturer, Department of Law & Justice, Southeast University.
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