Two recent judgments from the Delhi High Court, both centred on the fundamental right of privacy, should have Indian journalists very worried about the future of their profession. Both judgments have the potential to open the floodgates of privacy litigation against the Indian media. Such litigation has the potential to dramatically increase legal costs for the Indian media and could eventually have a chilling effect on newsrooms as editors self-censor reportage in anticipation of privacy claims.

The first judgment delivered on May 29 by Justice Sachin Datta articulated a broad ‘right to be forgotten’, grounded in the fundamental right to privacy. His judgment has ordered databases and search engines to de-index (across the globe) specific search results linking to news reports or judgments of persons who have been acquitted in certain criminal proceedings or persons who have been involved in matrimonial proceedings before the courts, etc. 

A second judgment delivered on July 1 by Justice Hari Shankar on behalf of a Division Bench of the Delhi High Court has dismissed an appeal against a judgment from 13 years ago, imposing damages of Rs. 5 lakhs on TV Today Network, for allegedly violating the privacy of certain petitioners who had filed a criminal complaint against the father in a family and who voluntarily gave an interview to the network in question. This despite the court finding that the journalists did not violate any statutory provisions in the law protecting the privacy of children or victims of sexual assault. Instead, the fundamental right of privacy and media ethics laid down by the Press Council of India became the basis of both judgments in this case.   

Together these judgments pose three sets of problems for not just journalism but the broader information ecosystem of search engines, databases and Big Tech.  

Do citizens have a fundamental right to privacy against the media and private companies?

The first problem is the fact that both judgments have categorically ruled that Indian citizens can invoke their fundamental right to privacy against private companies which own media houses, search engines and databases. Originally fundamental rights were applicable only against the state and its instrumentalities. Thus, an Indian citizen could sue the Government of India for violating their right to free speech or right to equality when it comes to government jobs. A similar claim against a private company would fail unless Parliament specifically allowed for the same via a legislation. For example, there is an Indian law which prohibits both the public and private sector from discriminating against people with HIV.

One would presume that this logic would extend to even the right to privacy, which was declared as a fundamental right only recently by the Supreme Court of India in the Puttaswamy judgment. Such an understanding would ensure that citizens could enforce their right to privacy against only the Indian state.    

Unfortunately, the Supreme Court was never clear about whether this right to privacy existed only against the state or even against private persons – the nine judge bench deciding the Puttaswamy case delivered five judgments. The judges did not try to reconcile contradictions between themselves on whether the fundamental right to privacy would apply against private citizens. Justice Bhobde for example made it clear that the fundamental right to privacy would apply only against the state and not the private sector. He ruled as follows: 

“Where the interference with a recognized interest is by the state or any other like entity recognized by Article 12, a claim for the violation of a fundamental right would lie. Where the author of an identical interference is a non-state actor, an action at common law would lie in an ordinary court.” 

The right to privacy in common law is far narrower than the fundamental right to privacy because it is grounded in the “duty of confidence”. 

Justice Kaul ruled the other way, declaring that privacy will apply horizontally against not just the state but everybody, including the private sector. 

Unlike in other countries, Indian judges rarely engage with the contradictions in each other’s judgments in the same case. Tragically, these contradictions in the Puttaswamy judgment were missed by judges of the Delhi High Court who authored the judgments  under discussion. In both cases, the judges have decided that the fundamental right to privacy applies vertically against the state and horizontally against private companies and the media. This conclusion leads to the second problem. 

Can the media be sued under Article 226 for violation of privacy rights?

The second, more damaging problem from the media’s perspective, is the conclusion by both judgments under discussion, that the right to privacy can be enforced via Article 226 of the Constitution. Originally, Article 226 allowed citizens to sue the Indian state for violation of fundamental rights or statutory duties by requesting the court to issue specific writs. In its original avatar, these petitions seeking the issuance of writs were meant to be invoked only when there were no alternate remedies available before civil courts. Over time, the courts have liberally expanded the scope of Article 226 by entertaining petitions even when there existed alternate remedies before civil courts. Simultaneously, Indian courts have expanded the definition of state (for the purpose of Article 226) to include private entities which may be discharging “public functions” – for e.g. private universities. But are media houses conducting journalism discharging a “public function”?

In the judgment against the TV Today Network, the Division Bench was categorical in its conclusion that the media was discharging a “public function” and that it owed a duty to the public thereby bringing it within the ambit of Article 226. The judgment states in relevant part:

Inherent, in the public function performed by the media, which would include the appellant, is the public duty to ensure that the rights of the public are not prejudiced or injured by the manner in which such public function is performed. Intrinsically intertwined with the performance of the public function is, therefore, the public duty to ensure due care and attention during its discharge and performance

The judgment by Justice Datta in ‘the right to be forgotten case’ was on similar lines, with the additional conclusion that if a fundamental right was enforceable against the private sector, the right could be enforced under Article 226. Both conclusions are questionable in law. The “public function” test was devised for cases where the state was delegating its functions to non-state actors. Including the media within the purview of the “public function” argument is flawed.

Doctrinal issues aside there are serious issues of justice in permitting such litigation against the media under Article 226. To begin with, in proceedings under Article 226 there is no right to a trial. There is no possibility for the media to exercise the various rights available to litigants during a trial, such as the right to discovery of documents, the right to file interrogatories and the most valuable, the right to seek cross-examination of plaintiffs making allegations against the media. These are crucial rights in cases of privacy where the plaintiff claims they are being harmed by the media’s actions. Whether harm is caused is a factual issue which requires to be proved through evidence. In both judgments, the Delhi High Court simply ignores the factual aspects of these claims and accepts at face value the claims of the petitioners that they suffered due to their privacy being violated. 

Remedies

The third problem is the nature of remedies ordered by the Delhi High Court in both sets of cases. The right to be forgotten judgment orders the “global de-indexing” of information – meaning that the court has asserted its authority beyond the territorial borders of India. As the lawsuits begin to pile up by litigants seeking erasure of their claims, High Courts across India will begin to order search engines like Google to delink news reports, reducing traffic to these websites, disrupting archival research and making it tougher for future journalists to research stories or conduct even a simple fact check. Once Indian courts realise this approach to delinking is not as effective as deleting the information from the website, they will expand the scope of these orders by directing news media to scrub their websites clean of any information. 

The second issue pertains to damages as a remedy for violation of privacy rights. The Division Bench judgment for its part has upheld the damages of Rs. 5 lakhs ordered, by the Single Judge, against the TV Today Network. This opens the door for future courts to award damages for privacy violations via writ proceedings without the media having the right to a trial. 

Normally with damages, the aim is to make whole the person who has suffered as a violation of their legal rights. Calculating such damage is a difficult proposition when it comes to violation of privacy rights, especially when there is no trial to test the claims of privacy violations. Nevertheless, some method is required – the judgment under appeal decided to use “guess work” as the basis of coming to this number. 

To quote from the judgment of the Single Judge: 

“The award of damages in such cases, of necessity, has to be on the basis of some guess work.”

As a result, this opens the door for judges to simply pick a number as damages for violation of privacy rights.  

Unless both these judgments are overturned on appeal, journalism will become far more expensive in India due to legal and compliance costs. When this happens, it is natural for editors to respond with self-censorship. 

It would be advisable for press bodies to intervene before the Supreme Court to seek a clarification on the right to privacy and argue specifically against its horizontal application to “non-state” actors. This may be an easier argument to make now that India has a personal data protection law which regulates the private sector. 

Already, the ‘right to be forgotten’ petitions are piling up before the courts. First up is an IPS officer Kokkanti Venkata Maheswara Reddy who has asked the Delhi High Court to issue a right to be forgotten order against Google which would require it to delete links to news stories pertaining to an ugly matrimonial dispute where his wife accused him of harassment – perhaps even this report on Newslaundry. 

The writer is the author of Tareekh Pe Justice: Reforms for India’s District Courts.

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