Madras: Click me not! Grey areas in privacy law

Just before cutting a ribbon at a recent event, a veteran actor knocked down the mobile phone of a fan as he was attempting a 'selfie'. A furore over the actor's perceived over-reaction egged him on to issue an apology. While the matter may have  been put to rest, it throws up a grey area of the law. Do we have the right to click photographs of  private individuals or public figures in public spaces? Or is it an invasion of privacy if there is no consent or, worse, an objection? It's a delicate balance. Celebrities owe their status, in some measure, to the average fans out there. But are they expected to relinquish their privacy when they profit from publicity, adulation and the related mania?

To a limited extent, the Information Technology Act, 2000 deals with videography, photography, publishing and uploading images without consent. Section 66E penalises "whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent." Explanation 'c' of the section refers to a "private area" defined as "the naked or undergarment clad" anatomy. The purpose, the statute clarifies, is to ensure that a person "could disrobe in privacy, without being concerned that an image of a private area was being captured; regardless of whether that person is in a public or private place." Section 66E may squarely apply to trial rooms in shopping malls but if you go by the legislative intent, the protection is against any form of intrusive capturing of images that affects the privacy of people.

Here's a problem. How would a person know if his or her private area is being clicked? Only the person behind the camera lens would know the angle and the frame. With a camera mobile in almost everyone's hands and clicking selfies now a compulsive pastime, consent is crucial. And as technology allows, for instance, Facebook live streaming, the damage caused would be a sped arrow.

The power of the gaze can never be brushed aside, owing to an imbalance between the viewer and the viewed. Women have more reasons to feel  vulnerable in public places. Under the UK Data Protection Act, 1998, you have a clear right to not have your personal data collected or published without your consent. Section 26(1) lists  exemptions for "journalism, academic, artistic or literary purposes." Even with these exemptions, there are several factors at play. Is the aggrieved individual a public figure? Is the photograph or video recording taken in a private or public place?  How is public access to be distinguished from unauthorised presence? Does the photographer have a right to be at that place? Or is he a gate crasher or trespasser?

Almost two and a half decades ago, the Supreme Court in R.Rajagopal Vs State of Tamil Nadu observed that "the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a 'right to be let alone'." Cut to the latest landmark verdict that recognised privacy as a Fundamental Right.The Supreme Court in Justice K.S. Puttaswamy Vs Union of India held that "every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control commercial use of his/her identity. This also means that an individual may be permitted to prevent others from using his image, name and other aspects of his/her personal life and identity for commercial purposes without his/her consent."

Truth is often invoked in cases of breach of privacy. But the Apex Court rulings are unambiguous. In the Rajagopal case, the court ruled that "a  citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages." The court clarified that the "position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy." In the recent Justice Puttaswamy case, the court was clear.

"Protection of reputation needs to exist not only against falsehood but also certain truths. It cannot be said that a more accurate judgment about people can be facilitated by knowing private details about their lives - people judge us badly, they judge us in haste, they judge out of context, they judge without hearing the whole story and they judge with hypocrisy. Privacy lets people protect themselves from these troublesome judgments"

The Supreme Court also dealt with the impact of the digital age. "Humans forget, but the internet does not forget and does not let humans forget. Any endeavour to remove information from the internet does not result in its absolute obliteration. The foot prints remain. It is thus, said that in the digital world preservation is the norm and forgetting a struggle."

Aside of public figures and private individuals, there are strict rules governing photographing prisoners too. Referring to the Police Standing Order 646, the Madras High Court in K. Ramaraj Vs State of Tamil Nadu held that a "photograph of an accused can be taken only in terms of Section 5 of the Identification of Prisoners Act, 1920 and the Police have no authority to do it on their own." An order of a First Class Magistrate is required. Clearly, privacy is too precious a right to be left to public opinion!

(The writer is an advocate at the Madras high court, columnist & author)