Tort – A Private Offence

INTRODUCTION

In India, the right to privacy is a fundamental right and also a customary right. In the field of torts, in certain cases a breach of individual privacy can be considered as an offence. Tort is a civil wrong. An invasion of privacy, in tort Law allows the aggrieved to file a suit against the individual who has encroached upon the privacy of another without consent. Privacy involves right to abortion and sexual preferences; including issues like having privacy with respect to ones gender, caste, religion. In Roe v. Wade[1] a woman was given the right to abort her child in the United States of America. Privacy has been indirectly a part of Tort Law in terms of enjoyment of property by providing a redressal against trespass or even defamation[2]. It must be noted that a mere invasion of privacy does not amount to a tort on its own. Right to life, in terms of Article 21,[3] means more than mere animal existence[4]. Importance of the right to privacy has found its roots in Kharak Singh v. State of U.P[5]. India is a closely knitted society where people fail to demarcate a line between private affair and public affair. While the government and the judiciary have simultaneously evolved to adapt themselves to protect privacy, the lack of sensitisation among the masses is quite questionable. With the increasing trend of data breaches and the allegations against the UIDAI, the government tried to bring in policies that safeguards individual interests along with furnishing public projects of the government.

 

Online Privacy

India has no legislation especially with respect to data privacy. The landmark tort judgement of  Donoghue v Stevenson[6] that lays the principle of due diligence that is in essence to be taken by people in general. Indian courts too, take into consideration fundamentally accepted principles such as that of due care. When it comes to online privacy, India is in a dire need of strong data privacy laws which are flexible like the European General Data Protection Regulation (GDPR). The GDPR is a comprehensive framework that governs the internet protocols of the countries that form the European Union. The Personal Data Protection Bill, 2019 brings about various safeguards to the people (data primary). Unlike GDPR, the bill calls for all Data Fiduciaries (the companies that process data) to localise data storage. Apart from the possibility of a large chunk of industries that would be unable to facilitate enough funds to garner an expected high-quality data storage system, there is a risk of lacking proper security measures to safeguard data. Due to improper safeguards, these companies might be at a risk of data breaches which will directly impact the privacy of the internet users at large.

Absence of the Data Protection Agencies has left the internet users at the mercy of the giant companies that freely use the data of Indian citizens according to their whims and fancies. India has sectoral regulators such as TRAI (Telecom Regulatory Authority of India) and SEBI (Security Exchange Board of India) but no Data Protection Authority. The Data Protection Authority will act as a protector of individual data.

In the current times, it is necessary to have a stringent legislation which could help individuals to safeguard their personal data. Section 509 of the Indian Penal Code makes it a crime to intrude upon the privacy of a woman,with an intent to insult her modesty. Strangely, there is no such law for males and transgender community. In Sankara Satyanarayana v. State of Andhra Pradesh,[7] it was held that a citizen has remedy under public and private law whenever there is a breach to a right to privacy. The case of Manisha Koirala v. Shashilal Nair[8] safeguarded the rights of public figures and their right to privacy. State of Maharashtra v. Madhukar[9] empowered prostitutes to say ‘No!’ through the right to privacy and therefore, they can not be forced to perform a  sexual intercourse with any person, against their will. In R.Rajagopal v. State of Tamil Nadu[10] the court emphasised upon the fact that publishing an article, or even a book about one’s private affairs does not amount to breach of privacy. The case had elements of sensitive information of certain Government officials which included police and prison officials which was deliberately coerced to be restrained from being published. The Court took notice of the fact that there exists a `distinctive’ nature of privacy in tort law. 

Most importantly, the K.S. Puttaswamy (Retd.) v. Union of India[11] underscores the most important aspect of right to privacy. From the perspective of the Tort Law, the case has empowered individuals with a shield to protect themselves with the tyranny of the state, private enterprises and the society altogether. Articles 14, 19 and 21 were looked at and it was observed that the government cannot impose the use of Aadhaar Card on its citizens. The Aadhaar Act was amended and the mandatory nature of providing Aadhaar as an identity proof was removed. Also, the court amended Article 21 to include a right to personal liberty along with a right to life.

 

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Types of Privacy Torts

1. Appropriation

The use of a person’s name, status or authority for commercial benefit without his/ her approval constitutes a tort of appropriation. For example, without authorization, someone using the name and image of a famous cricketer to market his sportswear. Similarly, any photographs that relate to one’s private affairs if published on any media channel, newspaper, online etc., without approval legitimises the right to sue for invasion of privacy. This tort is quite visible in the case of a paparazzi clicking pictures of well-known figures to publish it in a magazine, newspaper or even an online article.

2. False Light

This tort is only available to people and not to any judicial person or corporations. Depicting a person in a false manner with a malicious intent can be sued for a tort of false light. A fictional character if found to be similar to a real person can also be held liable, if found to have bad intentions. Here, the malicious intent has to be proved. False light happens in case of an article or a published book. For example, a book written by Anand Yadav called Santsurya Tukaram and Loksakha Dnyaneshwar based on the life of the two saints was found to be defamatory and therefore portray the two said individuals in false light.

3. Intrusion

In intrusion, a person tresspasses into the private sphere of another though illegally recording, taking pictures or even tapping into telephonic conversation, without the other person’s knowledge. A person has a remedy for intrusion in one’s private matters. In Kharak Singh case[12], the five-judge bench took notice of the fact that the police were specifically intruding into the private affairs of the defendant by tapping his phone and forcefully entering his house by doing unaccounted nightly visits. The defendant felt harassed by the same and filed the case under Article 21 for right to personal liberty. If there was a platform available under the tort law, the issue could have been addressed at a faster pace.

4. Public Disclosure

Public disclosure is when one publishes something embarrassing and offensive about another person’s private affairs which causes hurt (especially emotional). Any person who discloses such sensitive personal information can directly be held accountable for their actions. 

CONCLUSION

India is slowly developing its own tort law to remedy an aggrieved party for any invasion of privacy instead of invoking a writ Article 32 (in Supreme Court) or 226 (in High Court) to get a redressal against violation of Article 21, a Fundamental Right. The Tort Law is well developed in countries like the U.K. and U.S.A. but India, as a commonwealth nation lags far behind in these aspects. In order for the tort law to grow, the Indian Judicial System needs to first formally acknowledge the presence of such law. Furthermore, the government will have to put in place a mechanism that statutorily deals with the privacy breaches that occur in the country before the Personal Data Protection Bill, that can cater to the present cases relating to the data breaches. Moreover, a well-developed tort law will save the Indian citizens from unwarranted emotional trauma that might be caused by invasion of privacy of any form. The law should be made adaptable to the right to personal liberty in order to directly get a redressal for the violation of the same in order to avoid burdening the judicial system and provide people with a fast track mechanism.

REFERENCES

1. (1973) 410 U.S. 113.
2. The Indian Penal Code, 1860, s.499,500.
3. The Constitution of India,art.21.
4. Sunil Batra v. Delhi Administration And Ors., 1979 SCR (1) 392.
5. (1964) SCR (1) 332.
6. [1932] AC 562.
7. (1999) 6 A.L.T. 249.
8. 003 (2) Born. C.R. 136.
9. AIR 1991 S.C. 208.
10. AIR 1995 S.C. 264.
11. Writ Petition (Civil) No. 494 OF 2012.
12. 1964 SCR (1) 332.

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BY RIDHA DHAWAN | PANJAB UNIVERSITY REGIONAL CENTRE, LUDHIANA