India’s law minister announced last week that the right to privacy would be made a fundamental right in the Constitution. The motion is likely to be tabled in the monsoon session of Parliament. The recent use of electronic surveillance techniques by investigating bodies and news channels has been the trigger behind the move.
Most definitions of privacy refer to the individual’s claim to “be left alone” and to control the extent to which he mixes with others. In its present-day sense, privacy also includes the right to control the dissemination of personal information.
In the last three months, the issue has been in the news, especially in the UK. People who fear that their private life will be exposed to public view approach the courts for the issue of gagging orders against the media. The instrument some of them adopt is known as superinjunction. It is a tougher form of injunction, which not only forbids the publication of information about the applicant, but also ordains that there should be no mention of the very existence of such an order.
This term came into public notice when lawyers of a Dutch shipping firm named Trafigura obtained a superinjunction, restraining the media from reporting that their ship dumped toxic waste in the Ivory Coast. Even a mention of the name of the company was banned. The Guardian took up the challenge and fought for freedom of the press. Sam Leith wrote in The Wall Street Journal that the “epidemic of superinjunctions” was now the subject of national conversation.
Many of these injunctions, in the words of Gill Phillips, director of editorial legal services at The Guardian, relate to “celebrities protecting infidelities of various sorts”. Recently we read reports of a footballer in the UK who wanted to stop the media disclosing his alleged affair with a woman. He got an injunction, but that did not stop Hemming, a member of Parliament (MP), from naming him in the House. The MP could flout the injunction because he enjoyed parliamentary privilege.
While the celebrity gets protection, the woman in the story gets a raw deal. Her name is not protected. Her family has to bear the burden of pain and embarrassment. Reuters’ Georgina Prodhan wrote about concerns of a “creeping privacy law made by the courts and favouring the famous and wealthy”. Injunctions benefit the rich and the powerful in their effort to conceal their sexual peccadilloes.
Another famous case is that of Andrew Marr, a British journalist. He believed that he had fathered a child with a woman who was not his wife. In January 2008, he got a superinjunction to protect his reputation. He paid maintenance for several years, until DNA tests showed that the child was not his. He then confessed in an interview that as a journalist he was embarrassed by what he had done.
While the debate has been continuing, judges in England have been using Article 8 of the European Convention on Human Rights to refine privacy laws, and to set up new precedents. The convention upholds “the right to respect for private and family life”. Judges use this as a pretext to hone and reshape privacy laws. Prime Minister David Cameron felt “uneasy” about judges playing lawmakers, usurping the prerogative of Parliament.
The debate brings to the fore several other questions. How do you decide whether the publication of a story is “in the public interest”? While MPs are protected from legal action for what they say in Parliament, should the media have immunity in reporting what has been said in Parliament? Have judges been trespassing into the legislator’s territory? What action can be taken if users of Twitter release information banned by the superinjunction? Britain’s treasury secretary Danny Alexander remarked: “The whole situation is getting farcical. A parallel universe is emerging called the twittersphere where the law does not apply.” Many of these questions will be raised in India when the right to privacy becomes a fundamental right.
VR Narayanaswami is a former professor of English, and has written several books and articles on the usage of language. He looks at the peculiarities of business and popular English usage in his fortnightly column.
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