Curbs on privacy in RTI Act

When the person is public official, the matter is part of public record and his conduct is concerning discharge of his official duty, he cannot invoke privacy. This is the crux of the issue and fine difference between the private life and public activity, especially when public official is involved in unreasonable private conduct

Vibrant media’s aggressive coverage of private lives of public figures brought the ‘right to privacy’ into the limelight. The same question assumed significance as Right to Information is statutorily provided. Though it appears RTI is restricted by the right of privacy, in fact, the RTI Act has imposed five restrictions on right to privacy.

Media’s freedom and people’s right to know

On the privacy issue, the Press Complaints Commission of UK (PCC) advised the media: "Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest and how, and with whom, that was established at the time."

Media has a duty to inform people about the events going on around the world, as a fodder for thinking and deciding. Society has a right to be informed. Sometimes this right comes in conflict with the individual’s right to privacy. Public interest needs to be protected in knowing current affairs without compromising the right of the individual to his autonomy.

A journalist has a duty to report the kidnap or murder of a child, though it enhances the grief of the parents. However, it is not justified to ask parents questions while they are grieving, with mike inserted in mouth and camera focused on their wailing. Justification of public interest ends, when reporter goes beyond ‘news’ and starts probing into ‘private’ life.

While writing about the public persons, who are in public positions like politicians, group leaders, clergymen and all those people whose personalities and private morality are essential parts of their work, thin line between public and private activity of such person need to be understood.

Right to report public lives
The right to report about public person gives certain leverage to further probe into private aspects, to very limited extent. Where a person's character is an essential part of performing their public role, the public has the right to know any facts which reveal special aspects of their character, especially faults.

For instance: If a public personality is found in his private life found to have lied in a serious way, the public should be made aware that he could be lying in his work, too. Where public figures are responsible for setting a moral tone in society, any private immorality should be exposed as hypocrisy, something like the society should be aware that a leading campaigner against child abuse regularly beats his own children.

A media-privacy lesson provided an interesting example: If any misdeeds in private could be used to blackmail that person into compromising their public trust, the public has the right to know about it. In 1963, newspapers revealed that the British Defence Minister John Profumo had been sleeping with a woman who was also having a sexual relationship with the military attaché at the Soviet embassy in London.

Although it was never suggested that the woman had passed British secrets from Profumo to her Soviet lover, Profumo was forced to resign in disgrace, largely because secrets could have been passed. To make matters worse, Profumo, a married man, had lied to the British Parliament about his affair. High office carries a heavy burden as well as great rewards.

Because one happens to public figure, his entire life need not be exposed all through; he still has right to some privacy, where it can be shown that there is no overlap with the performance of their public role. They have the right to relax away from the eyes of the public.

For example, it might be unwise for a cabinet minister to play cards for money if gambling is not approved of in your society. However, if he plays with a group of friends within the privacy of his own home, perhaps he is entitled to some relaxation. A legislator aggressively participating in betting during Sankranthi day becomes a relevant news item in public interest, though the legislators could feel his privacy was invaded.

Constitutional basis
Constitution does not expressly recognise the right to privacy. Though it is regarded as part of right to life under Article 21, it was basically to secure a citizen from unauthorised searches and invasions into a private home. (Unni Krishnan and Kharak Singh 1964 cases) It means ‘right to be let alone’ or 'to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters'. (Gobind v MP 1975)

Supreme Court introduced a very significant exception to the rule of privacy, “if a person voluntarily thrusts himself into a controversy or any of these matters becomes part of public records or relates to an action of a public official concerning the discharge of his official duty’. (Rajagopal v State of T.N1995)

When the person is public official, the matter is part of public record and his conduct is concerning discharge of his official duty, he cannot invoke privacy. This is the crux of the issue and fine difference between the private life and public activity, especially when public official is involved in unreasonable private conduct. Right to know of the citizen, right to report of the media prevails, right to information takes over and privacy has to concede to these rights.

Tata, Radia Tapes and privacy!
It’s interesting to note that Ratan Tata, renowned industrialist of 320,000 crore salt-to-software conglomerate, filed a writ petition to save his right to life. His petition was against the publication of intercepts of his telephonic conversation with Neera Radia, corporate communicator for Tata group. He contended that as Radia’s phones were tapped by government agencies specially for investigating a possible offence, the recorded conversations should have been used for that purpose alone.

Among different prayers, Tata sought the apex court to direct the government to ensure that no further publication of these recordings, either as audio files through the Internet or as any print as transcripts appears in any media – print or electronic – and for that purpose take steps as may be necessary, …under the Cable Television Networks Regulation Act, 1995, the Information Technology Act, 2000, the Information Technology Act, 2000, the Code of Criminal Procedure, 1973, read with the Indian Penal Code, 1860, and any other law as may be necessary.’’

Can there be secrecy in the name of privacy as a cover available to conversations about public affairs? Whether the right to know of the people should prevail over privacy of the public personalities in these circumstances? What private life is discussed in these tapes?

RTI as an exception to privacy
With RTI Act around, privacy is limited by Section 8(1)(j). Though privacy appears to be an exception to the Right to information, it in fact imposes restrictions on the right to privacy. Section 8(1)(j) says that disclosure may be refused if the request pertains to "personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual."

There will be no right to privacy if there is: a) a relation to public activity or interest and b) if there is no unwarranted invasion of privacy of the individual or privacy warranted to be invaded. Third condition prescribed is, if there is larger public interest in disclosure, there will be no privacy. Fourth condition: if the information could be given to Parliament or Legislature, it can be given to ordinary citizen also.

Fifth Condition: if in comparison, public interest is found in disclosure than securing protected interest. The right to privacy must yield to right to disclosure under the five aforementioned conditions. Each bit of information sought has to be examined on this touchstone and disclosability of the same has to be decided. Public interest and accountability of public authority to public in general shall decide the RTI of citizen overriding the right to privacy.