Privacy and Media..Do we need a Sector Specific Privacy law?

Media is considered the fourth pillar of democracy and “Free Press” is considered the hallmark of a mature democratic society. The same society also holds “Privacy Right” in high esteem. But often the “Privacy Right” of individuals clash with the “Freedom of the Press” to disseminate information.

Just as the Privacy Vs Security debate is important, Privacy Vs Free Press debate is also important for the greater good of the community.

Today, Media is also an “Industry” as much as the “Health Care” or “BFSI” or “Outsourcing”. Worldwide there has been an attempt to develop sector specific laws to address Privacy Issues which cannot be effectively handled through the approach of an omnibus Privacy Protection law  which some countries try to practice.

In this connection, a debate is due on whether there should be an attempt at a specific Privacy Law addressing the needs of the Media Industry.

In his competitive world of “One-Upmanship Journalism” and the “24 hour TV news Channels”, media chases revenue through higher Readership or Viewership ratings ignoring the “Ethics” which was once a hallmark of good journalism.

In this context of competitive reporting, “Breaking News” and “Investigative Journalism” have become important business strategies for the media. This often leads to a “Media Trial” and “Misreporting” where the “Privacy Rights” of individuals goes for a toss.

We can look at some examples to appreciate how Media in its bid to outdo others often hurt the privacy rights of others.

Presently the Complaint of Mr Ratan Tata lies in the Indian Supreme Court concerning his Privacy rights in the Nira Radia Tape issue.  The recorded telephonic conversations which were captured by the Income Tax department for their investigation of possible tax evasion by a PR Professional, Ms Nira Radia and her firm were leaked into public place because the Tax department failed to manage “Inforamtion Security” at their end. The eager media trying to expose political machinations of Nir a Radia,  also brought to open her telephonic conversations of Mr Ratan Tata which according to his complaint had no public interest component.

In the Sheena Bora murder case, TV channels conducted their own investigations and dragged a forgotten ex-husband of Indrani Mukherjee into TV studios unmindful of the damage to his own family with wife and children.

In both these cases, Media had no respect for the Privacy rights of the individuals.  There are many instances of irresponsible political criticism politicians freely infringe on the privacy of individuals and when challenged, simply escape defamation charge with an apology.

Media keeps publishing such stories without any respect for the privacy of the politicians under the ground that a “Public Servant has no right to Privacy”.

At the same time, we also observe that there are instances where Media tries to show a  holier than thou attitude and goes out of the way to protect the privacy of information which perhaps requires to be disclosed in public interest.

A few months back, two Companies in Mumbai were reported to have paid a ransom of $ 5 million each to hackers who threatened to disclose some corporate data to which they had hacked in. The Companies paid the ransom but succeeded in ensuring that no publication revealed the names of the companies who had suffered the data breach.

The fact that the companies considered that they could pay a ransom of $5 million to keep the data under wraps indicated that probably the revelation might have uncovered an illegal activity  which could have caused a huge embarassment to the company.

But media wanted to protect the “Confidentiality” of the identity of the companies to protect their reputation. Though “Protection of Confidentiality of a Company’s identity” is not the same as “Protecting the identity of an individual” in the context of Privacy Rights, media mis-understood the need to protect a corporate interest where there was a public interest for disclosure as a “Privacy Issue” where there was a duty to disclose.

In a similar manner, the health status of important leaders like Ms Sonia Gandhi and J. Jayalalitha have been kept under wraps though there is a public interest involved in such information.

There are also many instances of information involving Judicial Authorities where there is a public interest involved but the information does not become news since there is the fear of “Contempt of Court” proceedings.

This inconsistent approach to   “Protection of Privacy” and “Confidentiality of Information” by media indicates that perhaps there is a need to think of a sectoral Privacy law exclusively directed to provide a guideline to the Media on how to handle Private information.

I am aware that any such hint would immediately be jumped upon by media as “Regressive”, “Draconian” etc.

But the same media would not hesitate to bring new legislation on Social Media including “WhatsApp” or “Facebook” or “Twitter”.

Presently, even the Delhi High Court in its judgement on the WhatsApp Privacy Policy has commented that the services such as WhatsApp may be regulated by the Government.

Why should “Social Media” be subjected to a different “Privacy Law” than the “Conventional Media”? is a point we need to discuss.

If regulation of Privacy in Social Media is acceptable, we should also be able to consider a Privacy regulation for the conventional media to  ensure the protection of Privacy in media coverage.

Perhaps this “Privacy Law for the Media Industry” will attempt to strike a balance between the Right to Privacy and Right to Free Expression in such a manner that without hurting the fourth pillar of democracy which is the “Free Press”, we usher in an era of “Decent Journalism”.

In structuring the “Privacy laws for the Media”, we need to incorporate the role of Media and Social Media, when does a “One to one Messaging” becomes “Publishing”, “How the “Advertising Norms” and “Press Council Norms” be integrated”, “How the law of Contempt of Court or Copyright to the extent they affect the media”, may also be addressed. Obviously, there will be some aspects of “Prevention of Press Censorship” or “Dispute Resolution Mechanism” which should also be integrated with such a law.

Comments?

Naavi

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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