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Privacy – Two Sides of the Same Coin

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This article aims to set a premise pertaining to the ongoing lockdown in the nation and to test the same on two facets of privacy. One, privacy as understood by the American Courts under the doctrine of “Reasonable expectation of privacy” and two, privacy as established by nine Judges of the Hon’ble Supreme Court of India through the Puttaswamy Judgment

  1. The Premise

Almost all the leading newspapers across the country had one common story on the front page manifested in different forms especially during the first phase of the lockdown. It was about how people were spending the lockdown in their apartment terrace. Starting from toddlers awed by the bright orange of the evening sun to old couples happily enjoying their walk with the rest of their family members, everything was captured. Interestingly, the images were shot from the terrace of a reporter. Will the beautiful images captured through the camera remain the same when viewed through the lens of privacy?

  1. Reasonable Expectation of Privacy

 This school of thought proposes that privacy is not an inalienable right of a citizen that is granted to him since birth. On the contrary, it proposes that the privacy of a person can be legally enforced only in certain circumstances where there is an inherent expectation of privacy that is reasonable. The State of Gujarat also prayed before the Hon’ble Apex Court in Puttaswamy to extend the same treatment to privacy as a fundamental right in India.

The American Court in Katz v. United States removed any confusion on this approach to privacy and framed a two-prong test for a person who wishes to knock the doors of the court to enforce this right. It stated that there is a reasonable expectation of privacy when a person shows an actual or subjective expectation that his activities are private and the society considers it to be reasonable.

  • Understanding the Approach

To understand this approach to privacy better, the jurisprudence as coined by the UK Court in Murray v. Big Pictures serves the purpose. Discussing in the context of a publication, the Court held that “the question of whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.”

While encouraging submissions on the two-prong test, the language used by the Court in Smith v. Maryland4 is very interesting. The Court held that the activity that is sought to be preserved as private must be something “the society is prepared to accept as reasonable”. It is in light of these decisions that the above-mentioned premise will be tested

  • Testing the Premise

The question that arises for consideration is whether, the persons who formed part of the published photographs, had a reasonable expectation of privacy? This tricky question can be explored in light of the following arguments.

It would be appropriate at this juncture to state the scope of this approach to privacy as conceived by the Court in Katz. 5 The Court held that “a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected,” because no intention to keep them to himself has been exhibited.”

In light of the above, it can be argued that the terrace of a building is an extension of a man’s home and therefore constitutes a private space. This qualification is of course qua a reporter and not other persons in the apartment for whom the same becomes a common space. Therefore, whatever activity he is indulged in, there exists a reasonable expectation of privacy. However, it is not easy to conclude this conception.

It can also be stated that, since the activity indulged in the terrace is visible to several pairs of eyes, no reasonable expectation of privacy exists. Moving a step forward, it can be shown through a statistical study that more people visit the terrace now in light of the nationwide lockdown and frame it to be a compelling argument to state that the said activity is visible to more eyes now than ever and therefore, the society is not prepared to accept the same as a private activity of the concerned person.

However, can a simple reason such as an act occurred in front of several pairs of eyes, qualify to be the most liberal justification for publicizing it? 6 The answer should lie in the negative and the Judgment in Murray v. Express Newspapers comes to aid. The Court held that when people who viewed the publication were comparatively more than the number of people who viewed it in real-time, there exists a reasonable expectation of privacy.

A few precedents, however, cannot solve the mystery created by the objective part of the Katz test. When will the society be prepared to accept something as a private activity will always remain indefinite? For example, a living area unexposed to the public eye will protect any activity in the said area as there exists a reasonable expectation of privacy. However, ten years later, if a high rise building is built nearby that exposes the living area, then the same may no longer be protected. Changing opinions and circumstances may be well protected under the Contemporary Community Standards test but, the same cannot play a vital role when it concerns matters of privacy.

The premise mentioned above can also be tested on the nature of the activity involved in by the concerned person. It is true that in both the judgments of Katz and Murray protects any activity that is intimate, humiliating, and embarrassing. In light of the same, any activity that does not satisfy this threshold automatically becomes eligible to be published. As a result, the inherent choice of a person to not appear in a photograph is not taken into account as the society can always say a toddler enjoying the sunset and old couples enjoying their walks do not pass the reasonable expectation of privacy test.

Since the crux of any claim will rely on the objective part of the test, even a legitimate claim may find it hard to succeed in a court of law. The very same reason is cited in Minnesota v. Carter and Kyollo v. United States while criticizing the applicability of this test to determine what is protected under the right to privacy.

  1. The Applicability of Katz in India

All of the above-mentioned circumstances and judicial precedents were subjected to the interpretation by Nine Judges of the Hon’ble Supreme Court of India in the Puttaswamy case. Justice D.Y.Chandrachud on behalf of four Hon’ble Judges has observed that the decision in Katz revolutionized the interpretation of the Fourth Amendment to the United States Constitution by shifting the test of privacy from ‘places’ to ‘people’, thereby upholding the privacy of an individual even in public.

  • The law laid down in Puttaswamy

In Puttaswamy, it has been held that the privacy of the individual is an essential aspect of dignity which has both, intrinsic and instrumental value and that the ability of an individual to protect a zone of privacy enables the realization of the full value of life and liberty.

Most significantly, the inherent right of privacy has been held to include ‘decisional privacy’ which means the ability of a person to make decisions that are intimate including sexual orientation, intimate relations, etc. The right to choose/make decisions has been held to be an extension of the right to be let alone.

  • Has the Court in Puttaswamy approved Katz?

The Court in Puttaswamy has held that the notion of a reasonable expectation of privacy has elements both of subjective and objective nature. The Court held that there are matters to which a reasonable expectation of privacy may attach.

Interestingly, Justice D.Y.Chandrachud has observed that the notion that there must exist a reasonable expectation of privacy ensures that on one hand, the individual has a protected zone of privacy. On the other hand, the exercise of individual choices is subject to the right of others to lead orderly lives. Conversely, Justice Nariman, in Puttaswamy, has held that the test of a reasonable expectation of privacy has been the subject matter of criticism and that there is no plausible foundation of such protection under Part-III of our Constitution.

The Court in Puttaswamy has held that privacy is an integral part of Article 21 and has agreed with the underlying principle that the notion of a reasonable expectation of privacy exists under the Indian Constitutional framework. In Katz, the individual’s expectation and the society’s perception of such an expectation being reasonable are the determining factors to decide whether or not the right of an individual is protected. In Puttaswamy, there is a clear distinction from the test laid down in Katz. The position of law as per Puttaswamy is that there exists a protected zone of an individual’s privacy in so far as it does not infringe upon the rights of other persons.

  • Testing the premise in light of Puttaswamy

When we test the premise (photographs) in light of the decision in Puttaswamy, the Court has held that privacy is an elemental part of the right to life and personal liberty under Article 21 as well as a constitutional value which is embodied in Part III of the Indian Constitution. In the Indian context, the individual is entitled to the protection of his expectation/notion of his zone of privacy, but that protection is subject to the rights of fellow human beings in society.

In view of Puttaswamy, it is possible to argue that the terrace is an extension of a person’s house and therefore it would constitute a private space and that it falls within the ‘protected zone of privacy’ as held by the Supreme Court. The society’s notion of whether such an expectation of an individual is reasonable does not gain relevance.

On the contrary, it may be argued that a person standing in his terrace cannot reasonably expect it to be within the zone of privacy since he may be visible to his neighbors and therefore there is a possibility of his photographs being taken. In view of Puttaswamy, this argument must fail. The reason is, the threshold for affording protection to the zone of privacy in Puttaswamy is much wider than the test laid down in Katz. In view of Puttaswamy, a person has a legitimate right of not being taken photographs of, in his terrace. In other words, a person has a ‘right to be let alone’, so long as it does not infringe on another person’s right.

  1. Conclusion

Reading the judgments in both Katz and Puttaswamy suggests that privacy as perceived by Katz is too restrictive in nature and places the crux of right qua the society. On the other hand, privacy as perceived by the ratio in Puttaswamy removes the society from the equation and grants the right of privacy liberally. With respect to the premise mentioned above, this may seem to be the correct approach. However, is it healthy for privacy to remain a fundamental right without any limitations?

The Hon’ble Supreme Court addressed this issue a year later in Puttaswamy10 (5 judges). Quoting the American poet John Donne, the court accepted the view that “no man is an island, entire of itself”. The Court brings the societal/communitarian angle to individual liberty and human dignity by holding that “a man’s personal autonomy is constrained by values, rights, and morals of people who are just as free and as equal as him, as well as by coercive regulation.”

The decision in Puttaswamy (5 judges) therefore aims to find a balance between these two extremes and still shows a ray of hope to uphold the privacy of individuals and balance societal standards.

This Article is authored by B.Arvind Srevatsa & V.Chandrashekara Bharathi, Advocates, Madras High Court.

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