Right to privacy In Torts

SUBMITTED BY, ANU MARIA FRANCIS(449) KIRON NORONHA(462) PREETHA() SIDDARTH BALADEVAN(488) YAMUNA VIJAYAGOPAL(502)

INTRODUCTION
Many of the torts that are recognized protect a range of interests and some interests are protected against different types of conduct by different torts. Privacy is the ability of an individual or group to seclude them or information about themselves and thereby reveal them selectively. Privacy is a broad and amorphous interest that several of the torts, for instance, trespass to land, private nuisance, defamation, malicious falsehood and passing off, can play a role in protecting different aspects of it. However, these torts only provide a 'patchy' protection for privacy, which means that there still exist some gaps and inconsistencies. But these gaps and inconsistencies were most commonly treated as a reason for favoring reform, though some commentators regarded them as exposing problems with the coherence of the concept of 'Privacy.' Privacy can be seen as an aspect of security, one in which trade-offs between the interests of one group and another can become particularly clear. The right against unsanctioned invasion of privacy by the government, corporations or individuals is part of many countries' privacy laws, and in some cases, constitutions. Almost all countries have laws which in some way limit privacy; an example of this would be law concerning taxation, which normally requires the sharing of information about personal income or earnings. The concept of privacy is most often associated with Western culture, English and North American in particular. According to some researchers, the concept of privacy sets Anglo-American culture apart even from other Western European cultures such as French or Italian. The concept is not universal and remained virtually unknown in some cultures until recent times. This project shall concentrate on the specific grounds of liability intended to provide direct protection for privacy. DIFFERENT TYPES OF PRIVACY The term "privacy" means many things in different contexts. The different types of privacy are mainly the following: Physical Physical privacy could be defined as preventing "intrusions into one's physical space or solitude". This contains - preventing intimate acts or one's body from being seen by others for the purpose of modesty. - preventing unwelcome searching of one's personal possessions. - preventing unauthorized access to one's home or vehicle.

Physical privacy may be a matter of cultural sensitivity, personal dignity, or shyness. There may also be concerns about safety. Information privacy Data privacy refers to the evolving relationship between technology and the legal right of privacy in the collection and sharing of data about one's self. In some cases these concerns refer to how data is collected, stored, and associated. In other cases the issue is who is given access to information. Other issues include whether an individual has any ownership rights to data about them, and/or the right to view, verify, and challenge that information. Various types of personal information often come under privacy concerns. For instance, financial privacy, in which information about a person's financial transactions is guarded, is important for the avoidance of fraud or identity theft. Internet privacy is the ability to control what information one reveals about oneself over the Internet, and to control who can access that information. Medical privacy allows a person to keep their medical records from being revealed to others. This may be because they have concern that it might affect their insurance coverage or employment. Or it may be because they would not wish for others to know about medical or psychological conditions or treatment which would be embarrassing. Moreover, revealing medical data could also reveal other details about one's personal life. Political privacy has been a concern since voting systems emerged in ancient times. The secret ballot is the simplest and most widespread measure to ensure that political views are not known to anyone other than the original voter. It is nearly universal in modern democracy, and considered a basic right of citizenship. In fact even where other rights of privacy do not exist, this type of privacy very often does. Organisational privacy Government agencies, corporations, and other organizations may desire to keep their activities or secrets from being revealed to other organizations or individuals. Such organizations may implement various security practices in order to prevent this. Organizations may seek legal protection for their secrets. For example, a government administration may be able to invoke executive privilege or declare certain information to be classified, or a corporation might attempt to protect trade secrets.

PRIVACY OF WOMEN Under Section 509 of the Indian Penal Code, it has been ensured that the privacy of women are well protected in India. According to it, whoever intends to insult the modesty of a woman, utters any word, makes any sound or gesture or exhibits any object, intending that such word or sound shall be heard or that such gesture or object be seen by such woman or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend upto one year, or with fine or both. PRIVACY OF A PERSON OR PROPERTY The privacy of a person or his property is an inherent right, and its infringement is a tort in India but has not yet fully been recognized as such in England and America. This has been classed as a doubtful wrong. The privacy of a person or property has been defined as: It may be described as unauthorized interference with another person's seclusion of himself, his family and his property from the public. According to Justice Gray, in his judgment in an American case of Robertson v. Rochester Folding Box Company, stated that, " The right of privacy, the right of the individual to be let alone is the complement of the right to the immunity of one person, and should be afforded protection not only against the scandalous portraiture of one's features but against the display and use thereof for another's commercial purpose or gain." PERSONAL PRIVACY The right of privacy may be privacy of property or privacy of person. The infringement of copyright, patents, designs, trade marks and names belong to the first category. Right of privacy to land is recognized in the law of trespass. But the right to personal privacy had no favorable reception in England. In India, the right to privacy has been recognized by the Allahabad High Court in Gokal Prasad v. Radho, 1880, where an injunction was granted restraining the defendants from constructing a building overlooking the zenana of the plaintiff. It was held that owing to differences in the conditions of domestic life, this custom perfectly reasonable in India, is unknown in England. Reverting to English decisions, in many of the cases, a persons right to prevent others from taking photographs of himself or his property was denied. In the case of Corelli v. wall the defendant published and sold the photographs of Miss Corelli, a novelist, against her consent, depicting her badly in imaginary incidents of her life. She sued for an injunction of libel and for publication of her portrait without her consent. But the court refused injunction on both the

grounds saying that there was no prima facie case for libel to justify the issue of an interlocutory injunction and secondly, that there was no authority for the proposition that "a private person was entitled to restrain the publication of a portrait of herself which had been made without her authority and which although professing to be her portrait, was totally unlike her." However, in some other English decisions, we find that there have also been instances when the publications of portraits of persons falsely depicting their character for purposes of advertisement have been held to be defamatory in libel actions. For example, In Dunlop Rubber Company Ltd v. Dunlop, where portraits of Mr Dunlop were published falsely, representing him as an old gentleman. RIGHT TO PRIVACY-AN INDIVIDUAL RIGHT According to Alan Westin new technologies alter the balance between privacy and disclosure. privacy rights may limit government surveillance to protect democratic processes. Westin defines privacy as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others". Westin describes four states of privacy: solitude, intimacy, anonymity, reserve. These states must balance participation against norms: Each individual is continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and communication of himself to others, in light of the environmental conditions and social norms set by the society in which he lives. Lessig claims "the protection of privacy would be stronger if people conceived of the right as a property right", and that "individuals should be able to control information about themselves." RIGHT TO PRIVACY AS A COLLECTIVE VALUE AND A HUMAN RIGHT. There have been attempts to reframe privacy as a fundamental human right, whose social value is an essential component in the functioning of democratic societies. Amitai Etzioni suggests a communitarian approach to privacy. This requires a shared moral culture for establishing social order. He believes that privacy is merely one good among many others", and that technological effects depend on community accountability and oversight. He claims that privacy laws only increase government surveillance.

Priscilla Regan believes that individual concepts of privacy have failed philosophically and in policy. She supports a social value of privacy with three dimensions: shared perceptions, public values, and collective components. Shared ideas about privacy allow freedom of conscience and diversity in thought. Public values guarantee democratic participation, including freedoms of speech and

association, and limits government power. Collective elements describe privacy as collective good that cannot be divided. She also argues that the human right to privacy is necessary for meaningful democratic participation, and ensures human dignity and autonomy. Privacy depends on norms for how information is distributed, and if this is appropriate. Violations of privacy depend on context. The human right to privacy has precedent in the United Nations Declaration of Human Rights: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." Shade believes that privacy must be approached from a people-centred perspective, and not through the marketplace.

CONSTITUTIONAL ASPECTS OF RIGHT TO PRIVACY IN INDIA

The literal meaning of privacy, as defined in the New Oxford English Dictionary , is the absence or avoidance of publicity or display; the state or condition from being withdrawn from the society of others, or from public interest; seclusion. The Blacks Law Dictionary refers to privacy as the right to be let alone; the right of a person to be free from unwarranted publicity; and the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned. Therefore, the right to privacy, notwithstanding its differing connotations, remains a private right of an individual. The constitution of India does not grant in specific and express terms any right to privacy as such. Right to privacy is not enumerated under the fundamental rights in India. But a right has been culled by the apex court in India from article 21 and several other provisions of the constitution along with the directive principles of state policy. A question whether right to privacy could be implied from the existing fundamental rights such as articles 19(1)(d), 19 (1)(e), 21 came up in the

case of Kharak Singh v State of Uttar Pradesh, 1963.1 The right to privacy presents itself as an illustration of the interpretative capabilities of the higher judiciary, as well as a right emanating as a consequence of the larger process of widening the ambit of specifically enumerated fundamental rights. Although initially lacking the stamp of judicial approval from the Supreme Court, this right has been afforded legal recognition following a series of judicial rulings, which shall be critically examined in the context of the Supreme Courts ruling in the case of Kharak Singh v. State of Uttar Pradesh. In this case the majority of the judges participated in the decision was of the view that our constitution does not in terms confer any like constitutional guarantee. But the minority was of a different opinion and we can read it in the judgement of justice Subba Rao . further , the right to personal liberty takes in not only a right to be free from restrictions placed on movements, but also free from encroachments on his private life. It is true that the constitution does not expressly declare the right to privacy as a fundamental right , but the said right is an essential ingredient of personal liberty. The Indian Constitution, in comparison, fails to expressly recognize the right to privacy. Some scholars contend that the whole notion of privacy is alien to Indian culture. In the celebrated case of ADM Jabalpur v. Shivakant Shukla 2, the Supreme Court sought to determine if the right to personal liberty is limited by any limitations other than those expressly contained in the Constitution and statute law. As observed by Khanna J: Article 21 is not the sole repository of the right to personal liberty..no one shall be deprived of his life and personal liberty without the authority of laws follows not merely from common law, it flows equally from statutory law like the penal law in force in India.This establishes that the right to privacy need not be expressly guaranteed, but may be implicit because of its inclusion in common law. The Supreme Court in recent years through judicial activism has preferred to read into the Constitution a fundamental right to privacy by a creative interpretation of the right to life guaranteed under Article 21. In the case of M.P. Sharma v. Satish Chandra3, and thereafter, in the Kharak Singh case, judicial pronouncements categorically rejected that there exists any right to privacy. In the case of Govind v. State of MP 4, as well as thereafter in R.Rajagopal v. State of T.N 5. And PUCL v. UOI 6, observed that this right emanates from Article 21. On a plain reading of Article 19, it appears that liberty as defined is wide enough to indicate the right to
1 2

AIR 1963 SC 1295 AIR 1976 SC 1207. 3 AIR 1954 SC 300. 4 AIR 1975 SC 1378 5 AIR 1995 SC 264 6 (1997) 1 SCC 301

be let alone. However, the Indian higher judiciary has remained rather ambiguous, to the extent of delivering contradictory rulings. In Govinds case , the supreme court is taking a elaborative step as said above. In this case the court is considering the constitutional validity of a regulation which provided for the surveillance by way of several measures indicated in the said regulation. The court upheld the regulation by ruling that article 21 was not violated. Along with that the court also accepted a limited fundamental right to privacy as an emanation from articles 19(a), (d) and 21. The right to privacy is not absolute; reasonable restrictions can be placed thereon in public interest under article 19(5). Justice Mathew said in the judgement that the right to privacy in any event will necessarily have to go through a process of case by case development . therefore , even assuming that the right to personal liberty , the right to move freely throughout the territory of India and freedom of speech create an independent right to privacy as an emanation from them which one can characterise as a fundamental right , we do not think the right is absolute. In the case of B.K Parthasarathy v State of Andra Pradesh7, said that the right to make a decision about the reproduction is essentially a very personal right of a woman or a man and essentially that includes the right not to reproduce. In State of Maharastra v Madhukar Narayan Mardikar 8, the supreme court protected the right to privacy of prostitute. The jurisprudential edifice of the distinction between a right as emanating from a named right and a right as a facet of a named right is traced to the opinion expressed by Bhagwati, J, in the Maneka Gandhi case9. Distinguishing between named rights and unnamed rights, Bhagwati held that it was not enough that a right merely flowed from or emanated from a named right, i.e. rights categorically mentioned in the text of the Constitution. Therefore, an unnamed right (rights not mentioned in the text of the Constitution) to be a part of the named right, it must be integral to the named right or must partake of the same basic nature or character of the named right. According to his opinion, each activity which facilitates the exercise of the named fundamental right is not necessarily comprehended in that fundamental right. Since the right to privacy isnt existing as a named right, in order to become a part of the named right to personal liberty, this has to be shown as being integral to personal liberty or partaking the same basic character as personal liberty. The ruling in the Govind case, concluding that the right to privacy is a fundamental right, flowing
7 8 9

AIR 2000 AP 156 AIR 1999 SC 495 (1978) 1 SCC 248.

and emanating as derivative and penumbral from the other named rights, cannot be regarded to be good law as it does not satisfy the test of unnamed rights. Although the benefit of Bhagwati, Js opinion could not be available to Matthew, J in the Govind case, the roots of this thesis were already present in the All India Bank Employees Association case10. In R. Rajagopal v State of Tamil Nadu, the Supreme Court, in the course of examining the right to privacy, concluded that this right is implicit in the right to life and personal liberty as guaranteed under Article 21 of the Constitution. This dispute arose out of the publishing of an autobiography of a convict sentenced to death. This autobiography was written in jail andhanded over to his wife for publishing, without the knowledge and approval of the jail authorities. It leveled serious allegations against a number of top officers of the Indian administration, causing the Police to ask the editor to stop its publication. The Supreme Court, referring to the rulings of the US Supreme Court, in Griswold v. Connecticut11 , Roe v. Wade12 and New YorkTimes Co. v. Sullivan13 held: The right to privacy is implicit in the right to life and personal liberty guaranteed to the citizens of this country by Article 21. It is a right to be let alone. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education amongst other matters. None can publish anything concerning the above matters without his consent. Supreme Court also laid down certain proposition defining right to privacy and thereby reconciling the two fundamental rights that is right to privacy and freedom of Speech. Important propositions laid down were: (1) right to privacy is implicit in the Constitution of India, 1950, Article 21. It means a right to be let alone. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, child bearing and education amongst other matters. Position may, however, be different, if a person voluntary thrusts him into controversy or voluntarily invites or raises a controversy; (2) there is an exception to this rule. Once a matter becomes a matter of public record, the right no longer subsists. However, in interest of decency (the Constitution of India, 1950, Article 19(2)) an exception must be carved out to this rule, namely, a female who is a victim of sexual assault,

10 11

AIR 1962 SC 171 (1956) 381 US 479. (1973) 410 US 113. (1964) 376 US 254

12

13

kidnap, abduction or a like offence must not be subjected to the indignity of her name and the incident being publicised in press/media; and (3) the second exception to this right is that in case of public officials, this right is not available with regard to their acts and conduct relevant to the discharge of their official duties. According to the majority in Kharak Singh, personal liberty even when construed as a compendious term did not include privacy within it. The question of right to privacy has been, in more recent times, deliberated upon in the case of Peoples Union for Civil Liberties v Union of India 14 in the context of telephone tapping. In this case, the Supreme Court held that right to privacy is a part of the right to life and liberty under Article 21 and it cannot be curtailed except according to procedure established by law. The Court stated that conversations on telephone are often of an intimate nature and constitute an important facet of a persons private life; therefore its tapping offends Article 21. However, far from continuing with the widening ambit of this right, it clarified that this right could be curtailed by the procedure established by law, so long as this procedure is just, fair and reasonable. On the basis of a dispassionate perusal of the aforementioned judicial rulings, it is evident that there is an implied, unenumerated, but judiciallyevolved and recognized right to privacy under the Indian Constitution. Although the rulings of the Supreme Court in the cases of MP Sharma and Kharak Singh, already referred to, denied the existence of any right to privacy, smaller benches in the cases of Govind, Rajagopal and PUCL unmistakably indicate the existence of such a right. The shift in judicial interpretation is most notably observed following the Maneka Gandhi case, wherein this right is recognized, subject to legal restrictions satisfying the requirements as laid down in the Maneka Gandhi case. However, if the courts were to addressthe issue of right to privacy under Article 21 afresh, there is little doubt that it would conclude that there does exist a right to privacy. Such a statement will not be valid law unless stated by a bench of more than six judges so as to effectively overrule Kharak Singh. On a harmonious interpretation of the legal principles as laid down by the Supreme Court at different points of time, it is sufficient to conclude the existence of right to privacy under Part III of the Constitution. The first principle was stated in Kharak Singh, which said that personal liberty used in the Article 21 is a compendious term to include within itself all varieties of rights which go to make up the personal liberty of man other than those dealt with in several clauses of Article 19(1). The second and third principles were laid down in Maneka, which stated that any law
14

(1997) 1 SCC 301.

interfering with personal liberty must be just, fair and reasonable and that an unnamed right may be regarded as part of a named fundamental right if it partakes of the same basic nature and character of the named right .Privacy is also a feature of the dignity of an individual that the preamble to the Constitution assures every individual.

Thus the right is not merely a negative mandate upon the state not to encroach upon the private space of the individual but is also a positive affirmation on the state to create adequate institutions that would enable one to effectively protect his private life. Thus the right to privacy has a strong constitutional edifice, which could, ifclarified by an appropriate Bench of the Supreme Court, settle this judicial controversy at rest. NEW FACETS OF PRIVACY AND ITS DEVELOPMENT Privacy provisions have just worsened due to the recent rage of sting operations. The false and fabricated sting operations have raised questions on accountability of media Starting from 2001 Tehelka exposure, which made the defence minister and others to resign, the present sting operation just exposed the new facets endangering the right to privacy. Unlike West, Indian news organisations have no internal rules and defined code of ethics governing the undercover investigations. The recent trend of ready to hire stings, the credibility of sting operations delivering evidentiary value has been questioned. In the recent case where a 40-year-old schoolteacher in Delhi was labelled as pimp by a sting operation conducted by a TV news channel. She was beaten up and stripped in public after the channel telecast a sting operation showing her negotiating a deal with a decoy customer. Later it was proved that it was a false sting operation that defamed a person associated with a noble profession and also goes on to prove the desire of TV channels to earn more and have higher TRPs. What is required is responsible media. Hence it may be said whether there is the crossing of the thin line, which is between the private interest and public interest is the litmus test for accepting the credibility of any of the sting operations. RIGHT TO INFORMATION Enacted in the year 2005, the Right to Information Act, 2005 tries to strike a balance between public interest and private interest. It has led the information from the public authorities out of the ambit of the right to privacy. It facilitates citizens to secure access to the information under the control of public authorities, which in a way results in transparency and accountability. The paramountancy of the democratic ideas is maintained.

Peoples Union for Civil Liberties Vs. Union of India, the constitutionality of telephone tapping was under consideration while recognising that conversation on telephone were of an intimate and confidential character, the court held that tapping into conversation was unconstitutional unless brought about by a procedure established by law. The court also found the concept of privacy to broad and moralistic for judicial consideration. The right extends to all forms of communication and if the state exercises any undue interference with an individuals right to communicate through such medium then it may be a violation of the persons fundamental right to privacy. Publication of confidential information may be objected to if there is any obligation of confidence arising out of a particular relationship and an action may be brought for the breach of confidentiality. The right to privacy may be taken away only in accordance with law of national security, public order and in interest of and benefit for general public. The internet has made surveillance of individual habit and traits easier than ever before. The employer may be within his rights to intercept emails of his employee, which deal with official matters. Whether the correspondence is official or not is a question of fact to be decided on the basis of available evidence. Although, broadly speaking any correspondence on an employees official e-mail address may, under normal circumstances, be presumed to be of official nature and hence, accessible to the employer. In recent times serious questions have evolved in relation to violation of right to privacy by electronic media and internet. IT sector, being a booming industry, there is a continuous threat to the privacy of an individual and the earlier laws proved to be inadequate to meet the need of the hour. So need was felt to have new laws in this regard and introduction of Information Technology Act, 2000 filled that void. The Electronic Communication Privacy Act of 1986 of the United States of America also aims at regulating the acts of private parties by prohibiting unauthorised interception and also governs unauthorised access to stored communications.

PRIVACY IN BUSINESS MATTERS

With the increase in cutthroat competition in every field, businesses must ensure that they adequately protect their business processes, technical know-how and confidential information from competitors. Whilst all businesses have some information that is valuable and which they endeavour to keep secret, they are unaware of how to legally protect such

information. Just as other intellectual property rights, trade secrets can be extremely valuable to a companys growth and sometimes even critical for its survival. In fact, it is only when some rival contender improperly obtains the trade secrets, do companies realise their significance. Breach of Confidence

This is now recognized as a distinct tort. It is committed when the person in whom confidential information reposes (the confidant or in this case a person in a company who is entrusted with certain restricted information) use of or discloses to others the information in question to the the plaintiff (the confider).Past breaches of confidence may remedied by an action for damages in tort, or by taking an account the profits made by the misuse or disclosure. Apprehended future breaches may be restrained by an injunction. This remarkable exam: of judge-made law has been achieved by borrowing features from contracts, property, equity, bailment and torts. Obligation of confidence may arise from an express term in a contract employment as when a company discovers that ex-employee has set up his own company in the same area to be using confidential information (e.g., lists of customers) acquired his former employment. But more often the obligation arises in a -contractual fiduciary situation. These situations cannot be catalog as the law is developing very rapidly. But marital or other interpersonal relationships are included, as are the secrets of the security services ,or the relationship of doctor and patient. But the obligation does not cover criminal or immoral information, or, conversely, information which is trivial or already in the public domain. Until recently, there was no fundamental right to privacy at English law. Invasions of privacy can be dealt with under the Human Rights Act 1998 which gives effect, inter alia, to the rights and freedoms guaranteed under the European Convention on Human Rights. Article 8(1) of the Convention states that: everyone has the right to respect for his private and family life, his home and his correspondence. This is subject to possible interference for a number of purposes including national security, the prevention of crime or the protection of the rights or freedoms of others. Alternatively, an action in defamation or malicious falsehood might give some protection. But an action in defamation may not always be satisfactory, as in Kaye v Robertson15 in which a journalist and a photographer gained access to Mr Gordon Kaye's private hospital room and took photographs and conducted an interview when Mr Kaye was in no fit state to be interviewed or to give consent. Mr Kaye, the actor from the television comedy series 'Allo 'Allo had, while driving, been struck by a piece of wood and suffered severe head and
15

[1991] FSR 62

brain injuries. In allowing in part the appeal against an injunction imposed by Potter J, the Court of Appeal judges were unanimous in their call fora legal right to privacy. Of course, since the Human RightsAct 1998, it is unlikely that Kaye v Robertson would today be decided the same way on the issue of privacy.' The Copyright, Designs and Patents Act 1988 gives a limited right to privacy in respect of certain photographs and films.' The law of breach of confidence may indirectly protect privacy if, for example, materials of a private nature have been shown or given to another to whom a duty of confidence attaches'6e basic requirement for confidence is the existence of a duty which may be expressed or imputed from the circumstances. DEVELOPMENT OF THE LAW OF BREACH OF PRIVACY

The law of breach of privacy has had an erratic history. From earlier beginnings, it largely developed in a spurt in the early to middle of the nineteenth century, and then lay relatively dormant until the late 1940s when it was realised thafthis was an extremely useful area of law. Some of the early cases involved 'patent medicines'. There was obviously a lot of money to be made from these magic cures, bearing in mind that conventional medicine was still fairly primitive at this time and that the public at large was relatively ignorant and uneducated. In Morison v Moa16t, such a medicine was made known as 'Morison's Vegetable Universal Medicine'. There was a dispute between the son of the person who originally devised the recipe and the partner, Thomas Moat, who had improperly told his own son of the recipe. It was held that there was an equity against the defendant. It was a breach of faith and of contract by the partner, Thomas Moat, to tell his son of the secret who, therefore, derived his knowledge under a breach of faith and of contract and could not claim a title to the recipe. Although the tearm`breach of confidence' was not used at this stage, it was clear that the breach of faith was actionable per se and was not dependent upon the existence of a contract. There was no contractual relationship between the son of the originator of the recipe and the son of the defendant.

THE MODERN LAW OF BREACH OF CONFIDENCE

The law of breach of confidence began its renaissance about 50 years ago. It became apparent that this area of law was extremely well suited to protecting 'industrial property' during the development stages before other legal rights were able to afford protection." Indeed, some industrialists had come to the conclusion that it was better to keep some details of their processes secret rather than obtain a patent which would
16

(1849) 1 Mac & G 25

mean that, eventually, the idea would fall into the public domain. However, it seems as if the significance of this area of law was not fully appreciated by law reporters. A number of important cases were reported in some series of law reports retrospectively, several years after the disposal of the cases. The first major case on the law of breach of confidence that laid the foundations for its modern form was Saltman Engineering Co Ltd v Campbell Engineering Co Ltd17. The claimant owned the copyright in drawings of tools for use in the manufacture of leather punches. The defendant was given the drawings and instructed to make 5,000 of the tools at 3s 6d each. After completing the order, the defendant retained the drawings and made use of them for its own purposes. In finding for the claimant, holding that there was an implied condition that the defendant should treat the drawings as confidential, not make other use of them and should deliver up the drawings with the tools made pursuant to the agreement

What is a Trade Secret?

A trade secret refers to data or information relating to the business which is not generally known to the public and which the owner reasonably attempts to keep secret and confidential. Trade secrets generally give the business a competitive edge over their rivals. Almost any type of data, processes or information can be referred to as trade secrets so long as it is intended to be and kept a secret, and involves an economic interest of the owner. For example, a business may have certain internal business processes that it follows for its day-to-day operations that give it an edge over its competitors. This could be regarded as a trade secret. The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) under the auspices of the World Trade Organisation lays down the following three criteria for regarding any information as undisclosed information (or trade secrets): It must not be generally known or readily accessible by people who normally deal with such type of information It must have commercial value as a secret The lawful owner must take reasonable steps to keep it secret.

17

[1963] 3 All ER 413 , and also reported in (1948) 65 RPC 203

Customer lists, business information, employee details, financial records, data compilations, business plans and strategies, formulae, designs, drawings, algorithms et al, could all amount to trade secrets. It is important to bear in mind that a trade secret need not be something that is novel nor should it have any real or intrinsic value to be protected. The only important requirement is that it must be a secret. Tools to Protect Trade Secrets

Businesses must ensure that they protect their trade secrets from being misappropriated, sabotaged, lost or stolen. Some tools that they can adopt are outlined hereinbelow: Employment agreement: Depending upon their needs, businesses should include suitable confidentiality, non-disclosure and non-compete clauses in agreements with employees. These may include the type of information that is likely to be disclosed, the manner in which it should be used and restrictions on disclosure post-termination. Trade Secret Policy: Such a policy is a must for businesses that heavily rely on their trade secrets. A basic step to develop such a policy is to identify and prioritize the business secrets based on their value and sensitivity. Employees must be informed about the policy and consequences of its breach before they agree to abide by the policy and sign an acknowledgement to that effect. Non-disclosure Agreements (NDAs): Businesses can also enter into NDAs with third parties while discussing any business prospects and ventures. In this way, the third parties can be precluded from divulging any trade secrets. Adequate Documentation: It is important for businesses to keep a track of the trade secrets that are developed and have sufficient records to show that the trade secret was developed by them and belongs to them. These records would be of evidentiary value in case of a dispute. It would also be useful for such businesses to conduct a trade secret audit at regular intervals to and keep up to date with any changes. Security Systems: Access to trade secrets and confidential information may also be restricted to only select personnel who have to undergo proper security checks. In case of an electronic environment, the businesses should use adequate software programs, virus scans, firewalls and other security and authentication technologies to safeguard their trade secrets. Legal Framework in India

There is no specific law in India that protects trade secrets and confidential information. Nevertheless, Indian courts have upheld trade secret protection on basis of principles of equity, and at times, upon a common law action of breach of confidence, which in effect amounts to a breach of contractual obligation. In India it is possible to contractually bind a person not to disclose any information that is revealed to him/her in confidence. In one case, the Delhi High Court has also upheld that a claim that disclosure of information would amount to breach of confidence is not defeated by the fact that other people in the world already knew the information. The Supreme Court of India (i.e. the apex court) has also upheld a restrictive clause in an employment contract, which imposed constraints on the employee to not reveal or misuse any trade secrets that he or she has learnt whilst in employment. The remedies available to the owner of trade secrets would be to obtain an injunction preventing a third party from disclosing the trade secrets, return of all confidential and proprietary information, and compensation for any losses suffered due to disclosure of trade secrets.

MEDICO LEGAL PRIVACY

Simply put, the Right to Privacy of a patient with regard to medical conditions and illnesses to be guaranteed by the doctor is called MedicoLegal Privacy. Under this the topic of most significance is Priveleged Communication. Information furnished to a physician by a patient which is intented to serve as basis of a diagnosis and treatment is considered confidential and assumes the term Privileged communication.18 There are only two circumstances under which such communication can be divulged to a third party ie. a) With the consent of the patient
b) And if it is under legal compulsion19

The following are considered professional secrets which the medical practitioner cannot and should not disclose : (1)The doctor is not supposed to discuss the illness of the patient with anybody. Any communication made which reflects on the character
18 19

Jhala and Raju : Medical Jurisprudence, 6th ed. ,Eastern Book Company at p. 77 Ibid.

and personal lif of the patient, or anything observed during the examination should be kept a secret. (2)He should not answer to queries of anybody including the patients near relations about the nature of the patients disease and its future effects without the consent of the patients. (3)The doctor should not divulge the nature of the illness of a patient even when requested by a public or statutory body except in the case of notifiable and communicable diseases without the consent of the patient or the consent of the guardian when the patient is either minor or insane. (4)The doctor should not divulge secrets of the patients life to his wife and vice versa without the consent of the husband or wife as the case may be. (5)The doctor is not entitled to divulge the secrets of an adult patients life to his father without the patients consent or the secrets of the life of a servant to his master although the father in the former case and the master in the latter case is paying for the services rendered by the physician. (6)When a doctor is required to examine a government servant at the instance of the government, the doctor need not divulge the nature of the patients illness without his express consent although in some cases the report may be treated as a privileged one. (7)When a doctor is required to examine an under trial prisoner in police custody, he is not permitted to disclose the nature of illness of the undertrial prisoner to the authority unless permitted to by the patient. But the right does not vest in a convicted person and the doctor is not prevented from disclosing the facts of the illness to the authorities. (8)A factory medical officer is not entitled to disclose the facts of the illness of the factory worker to the authorities without the express consent of the patients. (9)When a person is examined by a medical officer before he takes on a life insurance policy the consent, to divulge the findings of the medical examination to the life insureance authorities is implied therein. But the doctor cannot, without the express consent of the patient, disclose the facts of his past illness if treated by the same doctor.

(10) The doctor, should not divulge any information about any patient in case of marriage and nullity of marriage without his express consent.
(11)

While publishing a case report in any journal for the interest of the profession at large, the doctor should not publish the name and address of the patient without his express consent. 20

However there are TWO conditions under which such communication HAS to be divulged. And they are 1) Under Legal Compulsion and 2) In the Larger interests of the community or society

(a)

Legal Compulsion- Section 126 of the Indian Evidence act21 makes a provision in law regarding restrictions on communication made to a barrister, attorney, pleader, or vakil during his employment as such by the client. This privilege is not available to a medical man as he usually comes to the court as a witness and the duty of the witness is to assist the court and give witness on oath. With respect to this Lord Riddle22 made the following observations in an article of his :

A doctor, being in a fiduciary capacity must preserve his patients confidences unless relieved from the exercise by some lawful excuse, e.g legal compulsion, the patients consent, the performance of a moral and social duty or protection of thje doctors interests. A doctor shares with other citizens the duty to assist in the detection and arrest of a person who has committed a serious crime. Everyone recognizes the necessity and importance of medical confidences. Everyone recognizes that they are sacred and precious. But we must recognize also that the rules regarding them exist for the welfare of the community and not for the aggrandizement of the convenience of a particular class. We must recognize also that they must be fied to meet the inevitable changes that occur in the necessities of various generations.23

Professional secrecy and crime

20 21 22 23

Id. At p.78 Section 126, Indian Evidence Act Lord Riddle, MEDICO-LEGAL Problems, (1929), H.K. Lewis & co. Ltd, London Ibid.

Though the doctor owes to the patient, the obligation of professional secrecy, yet under section 202 IPC, the medical practitioner is required to bring to notice of the police, any information about any criminal act that might come to his knowledge in course of his professional service. Thus he is bound to inform the police about any criminal act that might come to his knowledge or an incident of grevious hurt or a case of poisoning or severe burn, rape, etc. In one case a patient came to a government hospital with a swelling in his arm. The patient was admitted in the hospital as an indoor patient. The swollen portion was operated upon, when a bullet came out from it. The doctor was bound to inform the police as it was a case of bullet injury and not to allow the patient to go unless the police has taken charge of the case. The doctor need not inform the police about a case of attempted suicide, undergoing treatment under him, but he should do so if the patient dies.24

When a doctor is required to treat a patient on whom a criminal abortion has been done or attempted it is his duty to treat the patient but if the patient is in dying condition, the doctor is to make necessary arrangement for the record of dying declaration and if there is no time to arrange for it, he himself should record it. In the case of self induced abortion, if there is no danger to the life of the patient, the medical man need not inform the police.25

In the better interest of the community and the society A medical practitioner comes to know a lot of secrets and confidential information of the patient in the course of his treatment. The secrets divulged by the payiemt amount to an implied contract between the parties that the secret will not be divulged. In such an event the patient is entitled to sue the doctor for breach of contract and claim damages.26
(b)

24 25 26

Jhala and Raju : Medical Jurisprudence, 6th ed. ,Eastern Book Company at p. 79 J.B. Mukherji, Forensic Medicene and Toxicology, (1981) p. 47 Jhala and Raju : Medical Jurisprudence, 6th ed. ,Eastern Book Company at p. 79

A medical man is however privileged to divulge the secret for the better interest of the community at large. This sort of disclosure should be unbiased, bonafide and without any malice. It is governed by the principle that the interest of the society is more important than the interest of the individual.

The question of Bonafide communication is to be determined by the facts of each case. In order to become privileged, the communication should be made to a person who has some interest or bonafide duty towards it. The plea of privilege will fail, if the communication is made to more than one person or to persons who are not concerned with the matter.

A doctor is bound to inform the superintentendent of the hostel about the servant working therein, in case he suffers from any communicable disease, such as a case of tuberculosis, general diseases and infectious diseases.27

A medical practitioner cannot withhold professional secrets in those cases where he has a statutory authority to notify births, deaths, infectious diseases etc to the public authorities. On certain occasions he has a moral duty to protect the interests of the community or the public and in doing so, if he divulges the secrets of the patient obtained in the course of his professional examination and treatment, he will be absolved from legal liabilities. For instance, a medical practitioner has a privilege to inform the warden of a hostel, if any boarder is suffering from a venereal disease. He has a privilege to inform the railway authorities, if he finds that a particular engine driver is colour blind and that he does not wish to change his employment although, he is persuaded to do so. In such cases, the communication, if made bona fide and without malice, will be deemed to be privileged by the occasion. However it should be made only to persons directly concerned otherwise, he may be penalized. A privileged communication is, therefore, defined as a statement made by a person, who has an interest to protect, or a legal, social or moral duty to perform, to another having a corresponding interest or duty for the purpose of protecting his interest for performing his duty, even though

27

Ibid

such communication may, under normal conditions, amount to defamation or slander.28 A case occurred at a Turkish bath at Debretzine where a venereal diseases specialist recognized a young man, who was about to enter the water, as one of his own patients who had consulted him two weeks ago for a syphilitic sore on the penis. He advised him not to enter the bath on account of his chancre, but the young man persisted in entering the bath. Hence, the specialist sent for the manager and explained the matter to him. The latter asked the man to leave at once. He left the bath, and sued the specialist for trespassing the medical secrecy laws, but lost his case, the court decreeing that the specialist only carried out his professional duty, and acted in the interests of the community.29

COMPARISON OF RIGHT TO PRIVACY AMONG VARIOUS JURISDICTIONS

This may be described as the right of a person to the seclusion of himself, his family or his property. The phrase right to privacy is used in the Indian case-law to refer to the right which an owner of a house may have under local custom to seclusion of his inner apartments from the view of his neighbour. Invasion of the privacy and seclusion of a mans premises, properly speaking is part of the law of trespass or nuisance. It has been used in England and in the United States in a very different sense and refers to the right to freedom from emotional disturbance like annoyance, mental pain or distress caused by certain forms of misconduct which do not fall within one of the torts already recognized by the law. A common form of such misconduct is the unauthorized publication of ones name, likeness or private affairs by photographers, pressmen or commercial adventurers (Para 21). Some of them, it is well known, adopt aggressive and undesirable methods to achieve sensation and profit by such means (Para 21). In the US, a right to privacy has been recognized not merely in such cases but also in regard to other forms of misconduct causing emotional distress. Formerly in the USA and also in England emotional distress was not by itself a cause of action but compensation for it could be claimed when it accompanied an independent tort like an invasion of
28

Modis medical jurisprudence and toxicology, 22nd ed. BX Subrahmanyam, Ed. (Butterworths India, New Delhi) 1999. 29 Ibid

the right to person, property or reputation. It was, so to say, parasitic on another cause of action and not a tort by itself.

The position remains much the same in England but is different in the USA. The law now prevailing in these two countries is reviewed briefly in the following two paragraphs. It is of considerable interest to us as it shows the new developments in social opinion and sentiment giving rise to new needs and the response which law makes to meet these needs. The problem has not however so far arisen in India and there is no reported instance of a claim for infringement of the right of privacy as now understood in England and in the USA. RIGHT TO PRIVACY IN ENGLAND

The trend of English case-law30 is, however, against any right of action for mere annoyance or injury to feelings independently of the recognized heads of actionable injury already discussed. For instance, no action lies for insult by words or gestures unless they amount to assault or defamation. An action for the unauthorized use of the name of the person or his property does not lie unless it is likely to cause loss of business or trade. In one case31 the right to privacy of ones property arose for decision and was negatived. The promoters of a dog show assigned the sole photography rights at the show to the plaintiff. He complained that the defendant a visitor at the show took photographs of the dogs without the authority of the promoters and published them in illustrated papers. He sued for an injunction to restrain the defendant from making any further use of the photos. His suit was dismissed on the ground that the law did not recognize an exclusive right to take photographs of ones property. If, however, the defendant was admitted into the enclosure on the terms that he should not take photos without the plaintiffs authority, he could be restrained from committing a breach of contract. Unauthorized publication of a photograph may amount to a breach of contact, as where a photographer employed to take a certain number of copies took more and sold them.32 However, such authority as exists is against allowing any action for infringement of right of privacy, for the publication of an accurate photograph or waxwork or other effigy of a person without his permission. An invasion of the privacy of a person or his property may however afford independent causes of action. The
30 31 32

Corelli v Wall (1906) 22 TLR 532 Sports v General Agency Ltd v Our Dogs Publishing Co Ltd (1916) KB 880 Tuck v Priester (1887) 10 QBD 629

publication of a persons portrait or caricature may be defamatory.33 This would be so if the photograph or waxwork is placed, without any justification for doing so, in the company of criminals, rogues or other persons and thereby creating a tendency to injure the persons reputation.34 Invasion of the privacy and seclusion of a mans premises by loitering about them may be a trespass or nuisance. Publication of a persons private letters or works not intended by him to be published may be restrained as a breach of confidence or an infringement of the right of property. 35 In the Law of Torts36 by Harry Street, the learned author observes that no English decision has yet recognized that the infringement of privacy which does not come within one of the existing heads of liability is a tort. He gives a few illustrations of invasion of privacy not constituting defamation or any other tort and therefore not being actionable. For example, the jilted lover who makes his former sweetheart, a present of a bathing costume which dissolves in chlorinated water, the farmer who offends the old spinsters across the road by encouraging his beasts to mate on Sunday mornings in a paddock in full view of the old ladies, the hotel manager who rushes into the plaintiffs bedroom and says. Get out of here, this is a respectable hotel, and the plaintiffs are man and wife, the newspaper which, on the eve of an election, rakes up the forgotten past of one of the candidates, the defendant insurance official who obtains admission to the accident ward of a hospital in order to browbeat a victim into signing a form accepting a nominal sum by way of compensation for injuries inflicted on her by someone insured with the defendants firm , the newspaper, reporters who, regrettably, sometimes stop at no invasion of privacy in order to get a story. It is perhaps true to say that wrongdoing of the kind discussed above has not assumed the dimensions in England that it has in the United States. If this is correct, it explains the difference in the rules and judicial policies in the two countries.

RIGHT TO PRIVACY IN THE UNITED STATES

Courts and legislatures in the states of the US have come to recognize this right in order to afford protection against the growing menace of unauthorized publicity of a persons name, likeness or private affairs causing him annoyance, mental pain and distress. In the course of years
33 34 35 36

Tolley v Fry and Sons (1931) AC 333 Monson v Tussads Ltd (1894) 1 QB 671 Prince Albert v Strange (1849) 2 De G and Sm 652, 693 Fourth edn, p 407

action have been allowed also for other forms of wrongdoing likely to cause a disturbance of emotional tranquility, eg., the use of abusive language, whether defamatory or not, which was likely to cause, and actually caused, mental suffering of such a character as to result in physical illness, as when an insurance agent went to the plaintiffs home and used abusive language in connection with a claim made by the plaintiff, the insulting conduct of persons in charge of public utilities towards passengers or others using the utilities, delayed or gabled messages sent by telegraph companies, disrespect and outrage of bodies of deceased relatives.

The trend of case-law and legislation is towards recognizing a general right to freedom from emotional disturbance caused intentionally or by unreasonable conduct. This is spoken of as the right to or of privacy. The right has grown beyond its original dimensions and is now a well recognized subject of claim in the courts. The law on this subject is thus set out in a well-known treatise in that country, on the Law of Torts by Harper and James. As civilization becomes more complex and varied, new interests emerge and new values evolve and not the least of them are the interests in privacy. The most important of these interests are four:

i) The interest in seclusion. An illustration of a violation of it is wiretapping or eavesdropping on the telephone. ii) The interest in personal dignity and self-respect. Cases under this head relate to conduct such as the use of abusive or insulting language, or indecent proposals.

iii) The interest in privacy of name, likeness and life history. Cases under this head are fairly common, such as the unauthorized publication of ones photograph for commercial purposes, improper methods adopted by debt-collecting agencies, as by sending letters in envelopes conspicuously proclaiming the plaintiffs failure to pay his just debts. annoyance caused by publicity given to biographical details. iv) The interest in sentimental associations. A violation of this right would be the unauthorized publicity or exposure of personal experiences with intimate friends or loved ones, of letters, keepsakes and other symbols of sentimental associations with such persons.

In cases of unauthorized or officious publication, a possible defence is the public interest in obtaining the news. This may give rise to difficult questions as what a court should consider as newsworthy. In determining this, several factors will have to be considered such as the motive of the defendants, the sex, status in life, previous habits of the plaintiff with reference to publicity, and above all, the customs and standards of the time and place. People who come into public attention because of their own fault as in the case of a criminal or because of their misfortune as in the case of serious accident, cannot complain of the resulting publicity. It has now come to be regarded as the function of the Press to satisfy the curiosity of the public as to their leaders, villains, and victims. If a person is in an usual accident and finds this picture, in the paper the next morning, perhaps he has no legal complaint, even though he is the most inconspicuous of private citizens. On the other hand, a woman may well complain if an X-ray picture of her malformed pelvis is shown in a syndicated newspaper column without her consent, notwithstanding public curiosity. It is also true that noted movie actor or a famous general of the army facing a battery of cameras when he sets off in an aeroplane for a routine vacation trip has not basis for a claim for an invasion of privacy. The explanation for the development of this right in the US has been thus stated by the learned authors of the above treatise and will be read with interest. Viewing this extraordinary development with the omniscience of hindsight, it appears that the inception of the doctrine was the almost inevitable development of the law under the pressure of great social need, produced by the technological developments and the vast extension of business which transformed American society into mass urbanization, thus creating many new sensitivities. Various illustrations will give a clearer picture of the concept.

In a New York case37 the plaintiff, a young woman, complained that the defendants, flour manufacturers and sellers, printed and circulated without her knowledge or consent, 25,000 portraits of her likeness with the following words below the portraits, Flour of the family Franklin Mills Flour. The Supreme Court of New York held that there was no libel and denied a right of action of the ground of an invasion of a right to privacy. The state legislature however, enacted a law the next year conferring a right of action in such cases.

37

Robertson v The Rochester Folding Box Co (1902) 171 NY 538

In a case in Georgia38 an insurance company published in a newspaper the plaintiffs photograph by the side of all ill-dressed sickly looking person, with a caption above the plaintiffs picture reading The man who did, and one above that of the other person, The man who did not. In that way it was sought to contrast the favourable position of the plaintiff who had insured with the company and that of the other person who had not and found his mistake. It was held that the publication tended to bring the plaintiff into ridicule and was an invasion of this right of privacy. In these two cases it would amount also actionable defamation.

In a California case,39 the action could rest only on the former ground. The plaintiff had renounced a life of shame and had been acquitted after a trial for murder, married and became an exemplary wife. Seven years later, the defendants without permission released a motion picture based on the true story of the plaintiffs life, found in the court records, advertising it as such and using the plaintiffs maiden name. It was held that the plaintiff could sue for a violation of her right of privacy.

A takes a photograph of a group of women who are crowding around the entrance of As store at a time announced for bargain and who have no knowledge of As act. Among them B is prominent. A publishes the entire photograph under the caption These women know bargains. B has no cause of action against A.

Other illustrations of offences against privacy causing annoyance are unwarranted intrusion into a ladys hotel room or a state room on a ship, eavesdropping on a hospital patient by means of microphone concealed in her room, the placing of a picture of an acquitted prisoner in a rogues gallery, the use of a persons name in a telegram sent to a Governor urging the veto of a Bill, the publication of details of a persons illness without justification. RIGHT TO PRIVACY IN INDIA

Right to privacy in India was first dealt in cases where police surveillance of habitual criminals was challenged as offensive. In Kharak Singh v. State
38 39

Pavesich v New England Mutual Life Insurance Co (1905) 122 Ga 190 Malvin v Reid (1931) 44 Har LR 1146

of Uttar Pradesh,40 ch. XX of the Uttar Pradesh Police Regulations which placed possible criminals under surveillance was challenged. The Supreme Court, considering the constitutionality of police regulations, permitted the police to keep a close watch on would-be criminals. However, like all unfettered power, the provision, was misused. The aggrieved complained that the police would inter alia: 1. enter his house 2. knock and shout at his door 3. wake him up during the night 4. ask him to accompany them to the station 5. ask him to report his departure to the local constable. The most inhumane of all regulations under challenge was Regulation 236 which permitted the police the render domiciliary visits at night. While Regulation 236 was struck down as being unconstitutional, Ayyangar J speaking for the majority, observed: The right to privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III. However, Subba Rao, J while partly concurring with the majority, stated: It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal libertyIndeed, nothing is more deleterious to a mans physical happiness and health than a calculated interference with his privacy. In Gobind v State of Madhya Pradesh,41 the validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations, which permitted the police to keep an uncomfortable surveillance on individuals suspected of perpetrating crime, was challenged. The aggrieved complained that his reputation had sunk low in the estimation of his neighbours as a result of similar activity. Mathew J after reasoned deliberation delivered a learned judgement and observed that: Privacy primarily concerns the individual. It therefore relates to and overlaps with the concept of liberty. The most serious advocate of privacy
40 41

AIR 1963 SC 1295 (1975) 2 SCC 148

must confess that there are serious problems of defining the essence and scope of the right. Privacy interest in autonomy must also be placed in the context of other rights and values. Any right to privacy must encompass and protect the personal intimacies of the home and the family. However the court stated that the right to privacy was subject to restrictions on the basis of compelling state interest. Thus, the regulations were upheld since they applied to a limited class of citizens, i.e. habitual criminals. In Sharda v Dharmapal 42 it was observed that the right to privacy in India is not an absolute right. If there is a conflict between fundamental rights of two parties, the right which advances public morality will prevail. In this case the Supreme Court considered the question whether a party to a divorce proceeding could be compelled to take a medical examination. While acknowledging the importance of privacy and confidentiality, the court found that the right to privacy was not absolute, and a party could be asked to take a medical examination, since in a matrimonial proceeding, a direction to undergo a medical test in an action under ss 12, 13 of Hindu Marriage Act 1956 was held not to offend the right to privacy under art. 21. However such power has to be exercised only when the applicant has a strong prima facie case. The court observed: If the respondent avoids such medical examination on the ground that it violates his/her right to privacy or for that matter right to personal liberty as enshrined under art. 21 of the Constitution then it may in most of such cases become impossible to arrive at a conclusion. Right to privacy has been read into art. 21 of the Constitution, in Peoples Union for Civil Liberties (PUCL) v Union of India 43, where the arbitrary telephone tapping was held to be violation of fundamental rights. In this case, the constitutionality of telephone tapping was under consideration. While recognizing that conversations on the telephone were of an intimate and confidential character the court held that tapping into conversations were unconstitutional unless brought about by a procedure established by law. The court also found the principle of privacy too broad and moralistic for serious judicial consideration. In State of Punjab v Ramdev Singh 44 sexual harassment and violence was held to be an unlawful intrusion into the right of privacy and sanctity of a
42 43 44

AIR 2003 SC3450 (2003) 4 SCC 399 (2004) 1 SCC 421

female. The same view was held in State of Himachal Pradesh v Sheer Kantshekar45. The Supreme Court appropriately accorded constitutional protection in District Registrar and Collector v Canara Bank46 where the right to privacy was explored against th power of search and seizure. The Andhra Pradesh Amendment of the Stamp Act 1899 was challenged on the grounds that it permitted any person to enter upon any premises, public or private and seize and impound documents. The court defined the limits of legitimate privacy intrusion and state that legislative intrusions could be tested using the doctrine of proportionality, administrative/executive intrusions had to be reasonable, while judicial intrusions were permissible upon the issuance of a judicial warrant on the premise of sufficient reason and necessity. It admonishingly observed that under the garb of the power conferred by Section 73 the person authorized may go on a rampage searching house after house and any number of documents may be inspected, may be seized and may be removed and at the end the end the whole exercise may turn out to be an exercise in futility. It was stated that: Unless there is some probable or reasonable cause or reasonable basis or material before the Collector for reaching an opinion that the documents in the possession of the bank tend to secure any duty or to prove or to lead to the discovery of any fraud or omission in relation to any duty, the search or taking notes or extracts therefore cannot be valid. The above safeguards must necessarily be read into the provision relating to search and inspection and seizure so as to save it from any unconstitutionality. In this case it was held that in case of a matter being part of public records, including court records, the right to privacy cannot be claimed. In R Rajagopal v State of Tamil Nadu 47 the Supreme Court considered the freedom of the press vis--vis the right to privacy of citizens. Auto Shanker, convicted of six murders and sentenced to death, had written his biography which he intended to get published in a Tamil weekly magazine entitled Nakheeran. In 300 pages thereof, he set out the close nexus between himself and several IAS, IPS and other officers, some of who were his partners in crime. The court developed a new test modeled on the decisions of the US Supreme Court in New York Times v Sullivan48. With regard to privacy the court observed:
45 46 47 48

(2004) 8 SCC 153 (2005) 1 SCC 496 (1994) 6 SCC 632 376 US 225 (1964)

The right to privacy is implicit in the right to life and liberty guaranteed to the citizens in this country by Article 21. It is a right to be let alone. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing, 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 position may however be different if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy49

49

(2005) 1 SCC 496