Nujs law review & ficci symposium on privacy, free speech and technology event Transcripts

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(Session 2, Speaker 1)
You know opening a session after lunch is a pretty difficult task . Its like facing Dale Steyn on a very humid Durban pitch in the morning. Now I would like to make a very brief presentation so that you don’t fall asleep, and let me try to make a few points that I felt as a public law person. As as teacher who deals primarily with Constitutional Law I feel that there are certain points that are lacking in any privacy initiatives towards legalizing or legislating on privacy. So when I talk about surveillance, I don’t talk about State made surveillance per se. I am taking about certain inter-se surveillance among citizens. So when I talk about surveillance, I will largely be talking about the paparazzi, the way the celebrity’s rights get trampled, the celebrity’s privacy gets trampled and what does our legal system have to offer.
So I would begin my presentation which just tries to streamline privacy as to whether it’s question of legitimacy. You see, we all know that we have a fundamental right to privacy, call it a part of 21, call it a part of 19 but we do have that. But the problem is that all of us know that the Courts have very severely limited this fundamental right to privacy. You know privacy not being absolute, privacy being trampled and endless stuff, other greater common goods and so on and so forth. Now in that situation, what we have ended up with is a situation where privacy needs to be legislated upon. Now we have these several versions of the Privacy Bill, some of which is leaked. I think all the different drafts have been leaked on some point of time or the other. Now, if you look at one of the draft versions of the leaked Privacy Bill, you find that there is a reference to the Right to Privacy. But interesting enough that references in the first draft was- “every citizen has the right to privacy.”Subsequently, citizens was changed to individual and individual is defined as “citizen of India.” Now, if we say privacy stems from 21, then 21 applies to all “persons”, not only to citizens. So even a normal person has the right to life and personal liberty. If we construe privacy as an element of personal liberty, then we have law that grants the right to privacy only to citizens.
Now that constitutional issue apart, there is another problem that this law in so far as it talks about right to privacy or granting right to privacy, this law is primarily aimed at surveillance. So in the beginning, in the first few sections where the right to privacy is talked about, the rest of the Act is about surveillance and legitimizing surveillance. So one stands to wonder as to whether this is a law, which gives recognition to privacy or it is a law which gives recognition to curbs on privacy. Now leaving that aside, that draft, that one draft of the Draft Privacy Bill also creates a very interesting inroad for journalistic purposes that the right to privacy, whatever it is can be curbed for journalistic purposes. Now this is also a very interesting formulation that I will come to briefly.
We see that out laws or laws from any other part of the world, privacy becomes a very serious issue when we are talking about a celebrity’s privacy in light of the celebrity’s publicity rights. That if you are a celebrity or a public figure, then you have been given certain rights of publicity, essentially proprietary in nature, and since you have gotten certain rights of publicity, you have to make certain compromises on your privacy. That is the linkage to privacy that is drawn in Maneka, it is not just in India when we talk about celebrities or public figures.
Now even while defining a public figure, there is a small dichotomy that we face. The American Courts in this interesting case called Martin Luther King Jr. Center for Social Change has defined a celebrity for right to publicity purposes in a very, you know, interesting manner. What is says is “When an unauthorized use of a person’s identity is made that is direct in nature and commercial in motivation, that person whose identity has been misappropriated becomes a celebrity for right to publicity purposes.” Now look at two things. First of all we are talking about a right to publicity orientation of a celebrity. And secondly, we are talking about an element of commercial exploitation, which again comes in when we talk about publicity rights. This is as if to say your definitions of celebrity or your definition of privacy will exist only when we are talking about a commercial exploitation. In the previous session, Madhavi was making a very interesting point. She said that privacy is a value in a democratic society. It does not depend on the individual, who the individual is, whether this individual is a public figure or is like any one of you , or any one of us. She was making reference to this English case, the case of Peck where this person was out in the road and out in the road the State would argue that out in the road his reasonable expectation of private space would automatically get curtailed. But the Court still held that he did not expect the surveillance agencies to keep a tab on him. So his reasonable expectation of privacy actually pegged at that level.
Now when we are talking about privacy as an intrinsic fundamental value, a constitutional value, then how are we defining privacy solely in terms of the commercial element in it? This is a lurking question that I am going to leave with you. Now the Indian test for public figure is also a very vague test. We have a tautological formulation- public figure because of public attention, so whoever has public attention becomes a public figure. We had in Indu Jain v Forbes, a kind of a definition which said that persons of standing, accomplishment, fame, mode of life or profession gives a public a legitimate interest in their affairs becomes a public figure. Now I don’t know whether by this decision Asaram could be called a public figure because his standing, accomplishment, fame, mode of life or profession is not something which a standard, a typical definition of public figure would normally entail. And interestingly you have no public figure by affiliation. In A Raja’s Case, A. Raja v P. Srinivasan, his relatives, Raja’s relatives were specifically excluded from the list of public figures. Public figures could also mean celebrities. Now going by that logic do you say that a RobertVadra is a celebrity or a public figure? Do you say that an AradhanaBachchan is a public figure or a celebrity? Now why I am asking this question is because the moment we come to celebrities, the natural response or the natural point the media makes is that if you are a celebrity you should have a lower degree of a reasonable expectation of privacy than the rest, and anyway you are getting the right to publicity. You are getting a right for full commercial exploitation of a personality. So, in a very proprietary manner, your reasonable expectation of privacy gets adequately lower the moment you become a public figure by definition. So naturally question do arise- whether you can become a public figure by affiliation.
More importantly, another reason the newspaper or the media gets in relation to the right to privacy if you are a public figure is the element of newsworthiness; saying that not only do you have a lower reasonable expectation of privacy, being a celebrity, you are also a newsworthy commodity. So that element of commodification definitely does come in which says that since you are newsworthy, since we have the right to know about you and since it is a manifestation of the people’s right to freedom of speech and expression, right to know about you, right to know about what’s happening around, therefore you cannot probably keep your right to privacy. Now I will give you a few examples to figure out whether newsworthiness could be even defined or to be given a straight jacket. Before that, the journalistic purpose, which can breach your right to privacy, here’s a very illustrative list that has been given in the Draft Privacy Bill. It says that reasonable expectation of privacy suspends when any one or more of the factors need to be present. Now, if you look at the factors, you will see that they are extremely vague ones. So one cannot really make out as to the presence of one of these factors can act as a mitigant, can act as something that can allow a legalized violation of your right to privacy. These questions remain very blurred. The lines remain very very ambiguous , very blurred, which the subsequent slide will show.
Ranbir Kapoor and Katrina Kaif enjoying in Ibiiza, Southern France. Do you see an element of reasonable expectation of privacy here? Or are they newsworthy items to be published in Indian Express and all newspapers and Startdust the next issue? And this is what Katrina Kaif does- she writes a very scathing letter to the media. A very interesting part, a very important part in the letter is “there is a breed of journalism that preys on celebrities in the worst possible manner, crossing all lines of privacy and decency, which she definitely seeks to target, which she definitely seeks to criticize. But for that journalist, it is a simple matter of newsworthiness- people are really curious to know whether they are a couple or whether they are living together. Now, where do you draw the line?
Priyanka Chopra at her father’s funeral. This photo, which is again taken from Indian Express, has Priyanka Chopra, naturally in a state of shock because her father has passed away, being consoled by Shah Rukh Khan. The next day’s news tabloids, the next day’s news channels that I consider news tabloids, they have headlines like “Priyankakorahatmili Shah Rukhki baton mein” and neutrally there is a very curious element of extra-marital because Shah Rukh Khan and Priyanka Chopra was a story for some time. There is a very curious element of extra-marital relationship being drawn in at a situation where this poor woman is grieving because her father is no more. Now, do you think Priyanka Chopra had a reasonable expectation of privacy in this circumstance? Do you think since Priyanka Chopra happens to be a celebrity the reasonable expectation of privacy gets lowered even if her father has passed away? Or do you think that it is such a newsworthy thing that Priyanka Chopra’s father has died and Priyanka Chopra is standing in this white saree and is being consoled by Shah Rukh Khan, that there will be such media hypes? So again newsworthiness is a standard which seeks very demanding questions.
Now let me come to my third point of my presentation which is are we technologically competent to handle such interferences being a celebrity or a non celebrity. I have given a reference to the California Anti-Paparazzi law, which talks about a very interesting distinction that it makes between two different kinds of invasions of privacy. One is a physical invasion, which necessitates an actual act of trespass. The other is a constructive invasion of privacy where you use visual or originally enhancing devices regardless of actual trespass. So if you’re using a high power zoom, you know high zoom camera and invading privacy, then that can be deemed to a constructive trespass or a constructive invasion of privacy. Of course that law also necessitates a commercial motive behind such an exploitation, but what that law does is that it gives a very inclusive definition of a private, personal and familiar entity, which has things like- It also talks about a reasonable expectation of privacy, but it winders the net to cover things like intimate details of personal life, interaction with family or significant others, activities in a residential property, which is defined as a residence, hotel, inn, lodge etc., other aspect of his private affairs and it does not include illegal or criminal activities. And this law also talks about, when there is an actual or a constructive invasion of privacy, there is a limit of fine that needs to be paid. And half of that fine will be use to promote the arts and entertainment fund. So, in a way you are legislating on the invasion of privacy from the angle of the state, from the perspective of the state. Even though the starting point is a commercial exploitation angle, but your appreciation of privacy is not only limited to whether privacy is a conquest of publicity. It goes beyond that. Maybe that was something Madhavi was trying to relate to in her presentation.
Now, how far are we competent, I am not getting into these because there is a statutory or state sanction included. W have heard about the CMS, the CCTMS, NATGRID, TCI, ECYT, all of these. And I am sure we have very eminent speakers who will be talking about that. But the media’s tryst with modern technology, the media getting hold of the new technological innovations and advancements is also creating space for the other journalism. The amount of Indian paparazzi has doubled tripled, has increased manifolds in the last few years.

(Session 2, Speaker 2)
Good afternoon everyone. Thanks for being here. Funnily enough, I think this gentleman just stated my conclusion very emphatically. So I am going to keep plugging at a point I am fully in agreement with him on – which is that the right to privacy as currently conceptualized within the draft legislation and other instruments including civil society, and judgments of the Supreme Court – just doesn’t break free of the conception of privacy as involving commercial transactions.

To start with the most strict criticism, I think the most laudable literature on the point in India seems to be the Justice Shah Committee letter that reported the findings of the expert group on privacy and I finally had a chance to go over it last evening. I was fairly shocked to see that each and every parallel legislation that was examined was examined free of its constitutional bearings. For instance, when they look at the European Data Protection legislation, they forget that it works within the ECHR, UDHR and international law on privacy. When they look at New Zealand and the US, the constitutional context within which the more recent initiatives have been taken and the more commercial element of privacy has been ignored. The report of the expert committee, thus, didn’t do justice to those references and disturbingly enough, I see the same lapse in current efforts to get a privacy bill in the laws of India as soon as possible because it is a scary situation.

My first critique and my major focus in this short presentation is to clarify the political economy within which initiatives to move laws towards a particular end point find themselves. Also, what the major force behind the particular direction that a privacy legislation takes and highlight how any sense of privacy in India will have to open the debate to much bigger questions of dignity and liberty in the Indian constitutional sense. It also gets you to think about whether the Indian idea of privacy can be premised on a liberal, individualistic rational private-public separation and a continuous transition towards a mode of thinking about privacy because I think there is a place within our constitution and within the statutes that we have in India today and certainly within the more enlightened judgments that the SC has passed for thinking of India as a country that hasn’t bent over for law. There is a possibility of a community existing before private zones of liberty such as in the case of rights of forest dwellers and what that does to our notions of private property. I don’t have a clear answer but I hope to give a rubric within which you can think of privacy in the context of free speech and surveillance. The quotes on the first slide capture how most of the world feels about privacy today. When you replace ‘we’ with ‘Indian citizen’ or the ‘Indian tribal woman’, or the ‘raped Indian tribal woman’, then fragmentation of this unitary idea of citizenship does locate itself within the ambit of privacy.
Given my stated desire to be skeptical about the current effort, it is important to ask upfront the sponsors of today’s discourse – FICCI, how much they are influencing discourse on FICCI in India. Is that the reason the 2010 bill is being uprooted by organizations such as the one the following speaker represents in a participatory manner today? Is that the reason why there seems to be a particular focus on procedure and techniques of restraining the powers that without opening the larger question of what is possible for privacy given that we have a such a beautiful constitution that is still resonant? The constitution is not a carbon copy of another constitution, but allows Indians to discover its constitutionalism in many different ways. This is something I encourage you to think about what does corporate India have to gain or lose by privacy and this point isn’t polemic against FICCI but one of the major points that I will be making. Rather than enjoying armchair theorizing, an empirical analysis of who wins or loses in different privacy contexts must be done before a law is theorized. That is why I work on privacy and am so fascinated with it. That there is something about the informational realm that really queers things up. There is a possibility of mutation, replication, schizophrenia or a strange vulnerability of your Facebook account committing suicide. There is something that is both frail and not limited by the physical constraints that are not electronic, that the real world personality is confined to live with them. That factual situation brings the possibility of thinking about a law that operates with greater intensity of spirit, a human approach to time and a clearer claim to reason guiding action. The only phrase among these that requires clarification is “a more human approach to time”. As JS Mill pointed out, an enlightened despot who is perfect would be great but is not possible and can’t be everywhere at the same time. The nature of the informational world and how it occupies certain circuits and the possibilities of our surveillance technologies today allows time and distance to be circumvented and I think that is not only a bad thing.
There is some great promise for law can do in this realm and other realms as well. The distributional effect of privacy protections throws up surprising results. If you have really good EU approval stand clause relating to CCTVs in India, who gains? The response would be, we the citizens gain due to CCTVs controlled by law. An empirical analysis will tell you that those who sell CCTVs really gain from the legislation. That is only one sense in which privacy related law has a winner and a loser. That is the broader context in which it is useful to think of if we have the Privacy Act of 2013 in a particular form, who gains from each of those protections, who gains? You must have a certain level of security, you must only intercept in so and so manner, intermediaries must disclose so and so. There is a whole nebulous zone of operators that have huge commercial gain from laws that say merging of databases is allowed between banks or health insurance companies subject to compliance with certain requirements. In terms of actual rupees and dollars, it is not just the people, but also a clear corporate interest. To comfort you, I am not attacking the corporate sector today but in a particular context relating to paternity or DNA testing relating to it, the people no longer benefit from a legislation saying that the court can order a DNA test to determine the father. There is the father who may be somewhat reluctant, the mother who has an interest in the test coming out a particular way and the best interest of the child and then the court, so on and so forth. Spend some time doing an empirical analysis of privacy law, then get back to the normative/ethical theorizing. Let it be both eye opening and useful in defining the contours of your rights, entitlements and duties.
I will briefly return to how we can deal with that in the Indian context. Second point, the big elephant in the room is, when I think of privacy, where do I focus my energies on? The abstract nature of the private person, the technology itself as India and South Korea managed to do, when it ensured that when a picture is clicked from a phone, a light must flash or a shutter sound must play so that voyeuristic pictures are minimized. Do I embed it in the technology or focus on who the private person is. This question is not trivial and I do not have a clear answer on it.
Before I move on, Strenelef also makes 4 interesting assertions about surveillance. First he makes the assertion that privacy definitely has a 100 good things about it, you can prevent disasters such as Uttarakhand, you can organize food supplies in a better way, you can prevent wastage of resources, spread information about health, only by the state treating its citizens as population and collecting stats about it as Michel Foucault highlighted in her essay Governmentality. Strideler leaves us with four take-home lessons on surveillance. One, that surveillance as a secret is illegitimate. You can have surveillance that affects your right, but you can’t have it entirely in secret. Second, total surveillance is also illegitimate. Third, surveillance in its present form transcends the public-private divide. No longer just about the media corporations, government. They and we are all implicated and just to rile my friend Raman here, I will also bring in the example of Google and virtual Alabama where through spatial satellite mapping, every camera in the city is not even recording, but constantly monitoring. All CCTVs, home security plugged into something that Google has built for good purposes, ostensibly. What Daniel Keitset and David Gray, also the same sort of slide tellers about what I just outlined as Richard’s position say is that I think he got that wrong, Richard asks us to focus on intellectual privacy, yet privacy is implicated in so many ways, but the real privacy that should get us worried when activities that allow us to be intellectual beings such as our reading, writing etc are threatened by intrusion, that’s where surveillance is doing something wrong. The best way for checking such intrusions would be by litigants going to court because the government market complex is responsible for intrusions of your intellectual privacy. Daniel Keitsetren and David Gray say no – that is a slippery slope. If you as a judge are deciding on what are the intimate areas of married life that the state cannot intervene on, the judge will never be sure. It will always be your individual position. As Justice Scalia said “I can’t really do this. Who am I to decide what intimate areas in married life are for a zillion different American couples.” What I’ll do is focus on the technology, the fancy instruments that allow one to see inside a house through say thermal heat patterns for example.

The last point, to some extent my speculative input on this, where can we place privacy in the Indian context and how can we begin to unpack this difficulty in understanding privacy. If we have to come up with a catch all, constitutional discussion which is more than Kharak Singh, Govind, Rajgopal and even Naz Foundation, if we have to have one position, the meta-key to privacy, what analysis would be useful.

Talking about an equation on his slide. (22.00-22.40)
Winners and losers of the … projection in India. It is not just about the privacy bill, Article 19, 21, there have been 700 cases on this and my friend Prashant Iyengar who has done some good work on this said, “the 700 cases in RTI forums across the country on the battle between privacy and transparency.” Who is winning and who is losing and what that means for the existence of a privacy right is something worth thinking about.
For those who have studied criminal law, you have the right to summon people, obtain saliva, spit, semen from a suspect, medical exam of a rape victim, procuring of documents all results in winners and losers depending on privacy in privileged communications, lawyers, doctors, the fact that the Evidence Act allows those to be used in court, communication between husband and wife lead to a particular balance in the privacy field. So, there’s a host of areas in the Shah committee report too that privacy already exists in India and pans out differently for different people – immigration, murders, medical privacy, banks, insurance companies, cyber cafes etc.
As the students introducing the session did point out, the post office legislation started pretty okay, things went alright with the IT legislation and the proposed privacy legislation which achieved its first draft in 2010 continues with the weakened approach to privacy. Speculations for why that might be – I gave you the conspiracy theory- too much FICCI, but really too much EU level trade and too much pressure from the European data controller to comply or lose trade. Section 43 of the IT Act finally allows the possibility of damages for loss of privacy and the quick question I want you to think about is what it would mean for India, if Indians had privacy torts as actionable claims. If you could go to a tribunal that does not have a ten year waitlist and get money every time your privacy is violated. So I will just flag that thought. Privacy as an actionable tort has some basis in the US while there is a battle going on in Canada and Australia. I think Ontario has accepted it very recently.
We move to the final slide. My hypothesis for your consideration is that privacy rights as we all enjoy them are simultaneously manifest in two ways. One sense is a property based sense, i.e., a right that is subject to reasonable restrictions, proportionality, all of the stuff that we’re trying to do in India today. The other sense, which only the German constitution has been courageous enough to take a position on is that privacy also exists as a guarantee inherent in us, which Madhvi I think was referring to in the morning. There’s something about how we live together that makes privacy more than my individualistic right. It’s the very basis for our existence as a social community. Going with the German constitutional court, I would speculate that it is worthwhile to scour through the Indian constitution in search of a core area that cannot be violated. There’s a particular term there, “inviolate private life sphere”; if that is possible in the Indian context, why not? Why stick to the weaker limit. So, that is my final provocative position and hopefully we can have some comments in the discussion.

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