Ethics, Privacy in the Workplace Essay

Ethics, Privacy in the Workplace Essay.

Introduction

The aim of this essay is to provide a supportive argument – “for” the notion that an individual’s privacy is more important than any other considerations in the workplace. Workplace scenarios will be outlined including job applications, storage of personal information, Internet and email, information technology effects on privacy, workplace policies and procedures and medical privacy. Differing ethical theories will be applied to both sides of the argument.

The Individual’s Privacy in the workplace
Getting the job.

The story is often heard in Australia how easy it was for people to gain employment in the economically booming 1960’s and early 1970’s; of how people would walk into a workplace in the morning and get a job straight away or within a couple of days jobseeking.

Resumes, application letters and application forms were unheard of unless you were applying for a professional level position. As competition for jobs increased in the mid 1970’s and early 1980’s more and more selection tools were required when hiring new staff.

Resume’s detailing training, past employment and referees assisted in the selection or rejection of new staff. Applicants are not required to list information in their Resume such as marital status, gender, political leanings, religion, date of birth and number of children as part of equal employment opportunity legislation. In government based agencies in particular, merit based recruitment is stressed.

Whilst in small privately owned businesses, employers still prefer to recruit new staff who are known to them or who are recommended friends of existing staff members. With current federal legislative requirements regarding unfair dismissal rules, employers must use care when employing new staff. A job seeker expects their private information to be handled with trust and discretion. The employer expects information to be relevant so they can make an accurate assessment of the job seeker. When it comes to ethics, both parties are acting in their own best interests. The seeker wants a job which is rewarding and lucrative in return for their effort.

The employer wants the most skilled person for the least financial outlay possible so that business goals and healthy profits can be achieved. By applying the ethical consequential theory of Egoism regarding privacy, both parties are acting out of self-interest which best serves their own long term goals. According to psychological egoism, humans are by nature – selfish. The jobseeker will divulge only enough personal information which will enable them to get and keep the job. The employer seeks to find out as much information as possible about the jobseeker so that their business is not damaged in the long run by selecting an inappropriate candidate. Shaw (2009) Page 59

Stored Information

Traditionally an employee’s basic personal information such as their resume, emergency contact details, and bank details would usually be kept on hard file in a locked personnel filing cabinet. Personal information shared amongst work colleagues was up to the discretion of the employee and staff encouraged to leave personal problems or beliefs at home. With the advent of information technology systems becoming more commonplace, communications though shared databases, email, intranet, internet and even social media have largely replaced paper files in storing company and personal information. Besides conducting simple one to one personal communication in the workplace, our personal and private information is shared in cyberspace with and without our express permission and may be accessed off site by internal staff or external IT support contractors with administrative access. Websites visited and programs/files accessed on work computers in work time can be logged and monitored.

This database of information needs to be protected from improper use and access by unauthorised people. The employee expects that the privacy of their information is protected. Monitoring IT usage at work by the employer may be seen as an action in the interests of the business but it can also be seen as an erosion of trust in the employer/worker contract relationship. The Fair Work Australia Ombudsman recommends that employers “implement best practice when maintaining privacy in the workplace. Employers, employees and their representatives need to know what information may be collected and retained and if it can be passed on to others.

This best practice creates certainty and security for both employers and employees.” Fair Work Australia(2010) Page 1 If the non-consequentialist ethical theory of Kantism is applied to this scenario, employers are expected to do the right thing as an act out of duty and by these moral principles the employee information is protected. Under Kantism if an employer was to mishandle this private information by for example selling it to third parties, this action would be morally wrong. Employers may justify their actions in logging internet and computer activity as a means to reduce “goldbricking” or “cyber-slacking” which is defined as employee’s using company internet accounts for personal / inappropriate use whilst giving the outward appearance of being busy with their work. Employees may see this as an invasion of privacy if they have not been informed or consented in their employment contract of this monitoring occurring.

With Kant’s theory an employee’s actions of cyber-slacking would be considered morally wrong as they are not doing the right thing by their employer. By the same token the action of monitoring a workers use of the internet or email without their consent would also be considered immoral under Kant’s theory of ethics. Shaw (2009) Page 452 Fair Work Australia also says that “Password and login codes may give employees the impression that their email and web browsing activities during work hours are private and not aware that their activities can be scrutinised by their employer.” Fair Work Australia (2010) Page 3 Employers should provide clear workplace policies and procedures to ensure all parties understand the rights and responsibilities that apply to email and internet usage.

Prescriptive guidance would detail the amount of appropriate personal email and internet usage within and outside the workplace that is allowable; prohibited activities and repercussions; legislation; how usage is logged and audited; and who has access to this information. Similar rules would apply to workplace landline and mobile phone usage. Fair Work Australia (2010) Page 4-5 By applying the consequentialist ethical theory of Utilitarianism to IT usage monitoring, the morally right action provides for the greatest happiness for all those affected, e.g., workload is shared evenly amongst staff; secret, divisive conversations are less likely to occur online and it is also a potential way to avoid potential conflicts in the workplace. Employers would use Utilitarianism to justify their actions in monitoring staff IT practices. An employee applying Egoism in this instance could argue that logging staff’s IT usage is an invasion of privacy and not in their interest, therefore morally wrong. Shaw (2009) Page 92

Privacy beyond the workplace

Most people believe that what they do and the opinions they have in the privacy of their own home is private, however social media sites such as Facebook and Twitter can sometimes be viewed by third parties depending on privacy settings. It is believed that employers have viewed the social media sites of potential new workers to assess their suitability to the job. In an article in the Daily Mail newspaper (UK) the story claims that one in five bosses have rejected job applicants after viewing their social media sites.

According to a survey by public relations company Eurocom Worldwide, “’The 21st-century human is learning that every action leaves an indelible digital trail,’ said Mads Christensen, Network Director at Eurocom “ Reynolds (2012) In Australia, Telstra conducted a business survey which resulted in similar figures of more than 12.5% of bosses checking job applicants Facebook pages and turning away potential employees based on things they have seen on Facebook. “Top social media behaviours cited by bosses as leading to a candidate being ruled out are: •Posting negative comments about their workplace with 44% saying this could rule out an applicant •Posts/comments which are discriminatory (37%)

•Inappropriate pictures posted on their profile (32%) •Posts/comments which contain confidential information (32%)” and 10% of employers use Facebook and other social networking sites to keep an eye on employee’s productivity. Symons (2011) Page 1 Employers say the biggest mistakes their current employees make on social networking sites are: “1. Posting negative comments about their workplace, with 26% saying this is the biggest mistake. 2. Posting confidential information (16%)

3. They post or are tagged in inappropriate pictures on their profile (14%) 4. Posting discriminatory comments (11%)
5. Posting comments/photos/links during work hours (10%) “ Symons (2011) Page 2
Part of the key argument regarding personal privacy is:

Do employers have the right to make judgements about potential or current employees based on information in social media sites? Surely this is not an accurate indication of their work skills and loyalty to a business as these social media sites are (usually) created when staff are not at work. It is tantamount to spying on a person in their private hours where their opinions are not necessarily those of their employer. The bosses may also have dubious moral and ethical behaviours outside of work hours, however the employer’s position of authority and power gives an unfair advantage over the worker. David W. Ewing devised an employees’ bill of rights where “No employee shall be penalized for engaging in outside activities of his or her choice after working hours…nor for expressing views contrary to top management.”

Shaw (2009) Page 488 The employer would argue that viewing the content on an employee’s social media site is indicative of that individual’s moral standards which may in turn be detrimental to the company’s reputation, e.g. a primary school teacher with sexually provocative images of themselves may be deemed inappropriate behaviour and detrimental to the reputation and public perception of the school. Employers could justify their actions of looking into the private lives of their employee’s with Egoism and Kantism. It is in the employer’s interest to monitor the integrity of their staff – on and off the job. And inappropriate behaviour even if it is outside the workplace is detrimental to the reputation of the organisation they work for. The employee could take the moral stance using Virtue Ethics of which they consider themselves to be a moral and virtuous person by their routine behaviour whilst working and that they shouldn’t be judge by the actions they take outside of work. Shaw (2009) Page 88

Employee Medical Privacy

Most recently there has been a report that Employers have been going along with employees to medical appointments and in some cases asking for medical certificates to be altered so that their employees can return to work earlier. The ACTU (Australian Council of Trade Unions) assistant secretary Michael Borowick has revealed that “the privacy of ill workers has been eroded, Employers, insurers and employer representatives are increasingly attending actual medical appointments with injured workers and, in some cases, forcing workers to attend company doctors. We’ve also had reports of doctors being pressured to change medical certificates and return-to-work plans.”

In May 2012, construction materials supplier Boral was warned by Fair Work Australia against allowing supervisors to accompany injured staff into doctors’ consulting rooms, with the workplace umpire saying it had the potential to operate unfairly. The Fair Work Ombudsman said that the “Fair Work Act does not contain express provisions regarding whether an employer can accompany an employee to a medical appointment or have a private conversation with a doctor regarding the employee’s medical condition.” Wilkins (2012) It is incredible to imagine that such an intrusion of intimate personal privacy is occurring in the workplace let alone that there is scant legislation to prevent it.

An employer could argue that it is in the interest of the company to ensure that employees are acting honestly in relation to the true nature of their illness as sick days cost the company money in delays and decreased productivity. Marketplace competitiveness is affected and workers compensation costs may also increase. By applying Utilitarianism theory, an employer may justify this action as it promotes the general welfare of the company and is result orientated.

Whereas the employee may argue that utilitarianism is focused on the results of the action not whether the action is morally right or wrong for the privacy of the individual worker. In conclusion – on balance the argument of the notion that an individual’s privacy is more important than any other consideration in the workplace is affirmed. We now live in a society where we think we are in control of our personal and private details when in reality our opinions, movements, interests and affiliations are being monitored constantly without our knowledge. An individual’s right to privacy is dependent largely on the amount of information they share face to face, in writing or on the internet. It seems unfair that personal privacy should be sacrificed for corporate gain.

Bibliography
Books
Shaw, W., Barry, V., & Sansbury, G. (2009) Moral Issues in Business (1st Asia-Pacific ed.), Cengage Learning. Melbourne, Australia

Journals
Andrejevic, M. Commercial surveillance in the digital era, Living Ethics: issue 87 (autumn 2012) Heersmink, R., van den Hoven, J., Jan van Eck, N.,
van den Berg, J. Bibliometric mapping of computer and information ethics (2011) Springerlink.com Legislation

Privacy Act (1988) Commonwealth of Australia
Privacy and Personal Information Protection Act (1998) NSW
Web Articles
“A quarter of bosses head to Facebook to vet CV’s” http://www.news.com.au/technology/a-quarter-of-bosses-head-to-facebook-to-vet-cvs/story-e6frfro0-1226208260693 THE VECCI BLOG, “Bosses heading online to screen job candidates”, The Victorian Employer’s Chamber of Commerce and Industry (VECCI) 2011 http://blog.vecci.org.au/2011/11/30/bosses-heading-online-to-screen-job-candidates/

Fair Work Australia, 2010 www.fairwork.gov.au/BestPracticeGuides/08-Workplace-privacy.doc Symons, P., Telstra Corporation Australia 2011 http://www.telstra.com.au/abouttelstra/download/document/telstra-cyber-cv-fact-sheet.pdf Newspaper Articles

Reynolds, E., The Daily Mirror (UK) 2012 http://www.dailymail.co.uk/news/article-2115927/How-Facebook-cost-job-One-applicants-rejected-bosses-check-profiles-social-media-sites.html Wilkins, G., “Bosses intruding on workers’ doctor visits” Sydney Morning Herald, September 26, 2012 http://www.smh.com.au/opinion/political-news/bosses-intruding-on-workers-doctor-visits-20120925-26jh6.html?skin=text-only

Ethics, Privacy in the Workplace Essay

Enemies of the State: Privacy and Surveillance Essay

Enemies of the State: Privacy and Surveillance Essay.

After the September 11, 2001 attacks, the film Enemy of the State is perhaps much more relevant today, when balancing between individual freedoms and privacy and the need for securing the country’s borders, than it was when it was released. The NSA, National Security Agency, put in place secret programs for electronic surveillance shortly after September 11. The ownership as well as the control of these programs is in the hands of the executive branch or multi-national corporations, with little supervision from the legislative or judicial branch.

In 1998, the time the film was released, some events like the government pushing for the passage of a legislation allowing it to subject any US citizen to secret surveillance for virtually any reason were yet to come true in real life. The Patriot Act was passed only 2 months following the September 11 attacks. The law eradicated various restrictions preventing spying of citizens by the government, giving security agents power to wiretap, conduct electronic eavesdropping, and access people’s private data (Epic).

Following these developments in the name of security, the use of the surveillance technologies is cause for public debate on privacy, with some people supporting the use of the technologies and others viewing it as invasion of the privacy of individuals. The use of surveillance technologies raises several questions. For instance, how far should citizens in a democracy allow such surveillance to go? Should the government collect large amounts of unnecessary personal information in the name of trying to identify criminals?

What if the laws put in place to govern use of the surveillance technologies are abused? Can citizens trust those controlling the surveillance to keep from abusing the power given to them? Watching Enemy of the State, many people would answer “no. ” The film portrays how far misuse of surveillance technology can go and cautions about the dangers that could come with extensive government surveillance. Carla Dean, the main actor’s loving wife, voices these concerns when she reacts to the notion that the surveillance will be used to only spy on suspected criminals and terrorists.

She asks who will draw the line between tapping suspected criminals and suspending the good citizens’ civil liberties. She asks who will “monitor the monitors of the monitors? ” (“Enemy”). The Patriot Act allows for monitoring of library and bookstore records and while such laws targeted terrorists, lately, the lines appear to have blurred a bit. The Justice Department is said to have been conducting seminars to look at ways of extending the wiretapping provisions to cover more than just terrorism, within only 6 months of the Patriot Act’s passage (Alien).

According to Duke, passing on surveillance information beyond those responsible, tapping and spying of innocent citizens by government without warrant is privacy invasion. The reason for investing in surveillance is meant to protect citizens’ liberties, but not to take those liberties away as citizens are entitled to privacy regardless of what they are doing, and that it is even unjust for the government to spy on suspected terrorists without warrants. According to him, government invasion of individuals’ privacy erases any other rights Americans may have.

He argues that it is futile to try to protect or guard America without rights and principle (Duke). The film draws attention to the downsides of intensive surveillance. Although, to some point, surveillance may reinforce national security, it is also likely to be misused and erode personal privacy. The film also discounts assumptions that pictures do not lie. Although surveillance is effective in gathering information because the images are taken to represent reality, Enemy of the State emphasizes that they can also be quite misleading.

For instance, the FBI’s photos of Robert while at Pintero’s place imply non-existent Robert’s mafia connections. Likewise, when Carla Dean is shown pictures of her husband, Robert Dean, and Rachel Banks together, she imagines that he is having an affair, which is not true (“Enemy”). This misrepresentation of reality shows how the use of surveillance could be abused by the monitors in case they have hidden malicious interests or they are being manipulated by more powerful people in government.

Surveillance could also cause the monitors to spy on innocent citizens and unnecessarily invade their privacy because the pictures are also prone to misrepresentation. This could even cause damage to a person’s image and cause fear because there is no guarantee of personal privacy. Experts say that use of secret surveillance prompt ethical and legal privacy concerns when used in people’s homes. The worrying thing is that the use of surveillance cameras by individuals has increased considerably, following the 9/11 attacks.

Hi-tech hidden surveillance cameras, once only restricted to law enforcement and military personnel is now available to civilians. Disguised surveillance cameras are now being hidden in things like teddy bears or plants or almost anywhere and even parents who have worries about their nannies can access such technology. Tiny motion-detector-triggered cameras can even inform people when, for example, their cars are being keyed. Even things like sunglasses have fiber optic video cameras and micro-cameras built into watches are in market today at relatively low prices.

Many spy stores cater to businesses concerned about theft or industrial espionage. A Malibu restaurant, for instance, recently solved a problem of money disappearing from a safe by installing a hidden surveillance camera. All these can be bought at specialized shops like Spy Tech, the Privacy Connection, etc. (surveillance-source). It is generally accepted that it is unreasonable, to a great extent, to expect privacy in public happenings.

For instance, while one can go in front of another person’s house and probably take a picture, the issue of planting surveillance cameras in front of the house a whole day could take time to be addressed in a specific way (surveillance-source). There seems to be no escape from surveillance societies as Enemy of the State (“Enemy”), finally implies. Although Brill finally escapes, he has to follow strict rules in order to avoid the surveillance cameras which are almost everywhere.

His workplace is “unplugged from the world” (“Enemy”) and to escape from the surveillance, he is forced to abandon normal life and has to live an isolated life (“Enemy”). This kind of lifestyle seems impossible for most people, because there is no way one can lead such an isolated life. It is also ironical that the monitors or those in charge of the surveillance tools themselves fall victim to the same technology. The men, after following every move Robert makes all along, they have end up being monitored with the same cameras.

In addition, Brill says “the more the technology you use, the easier it is for them to keep tabs on you” (“Enemy”). The movie makes it clear that the more people keep fawning over the latest technology, the more they keep on enhancing the surveillance society’s power. On the whole, this film clearly demonstrates that in spite of its various flaws, surveillance society is here to stay (“Enemy”). Works Cited Alien. Citizen surveillance: Government abuse or fair play? 20 Sep. 2003. Web. 4 Jun. 2010. <http://boards. straightdope. com/sdmb/archive/index. php/t-212591. html>

Duke. Who is the Next Victim of Government Spying? 13 Mar. 2008. Web. 4 Jun. 2010. <http://socyberty. com/government/who-is-the-next-victim-of-government-spying/> Enemy of the State. Dir. Tony Scott. Walt Disney Studios Distribution, 1998. Film. EPIC. Information Center USA Patriot Act. 2009. Web. 4 Jun. 2010. <http://epic. org/privacy/terrorism/usapatriot/default. html> Hidden Camera Surveillance: Why the New Popularity and Availability of Gadgets May be Cause for Concern. 2010. Web. 4 Jun. 2010. <http://www. surveillance-source. com/Hidden_Camera_Surveillance. htm>

Enemies of the State: Privacy and Surveillance Essay

The Right To Privacy in India Essay

The Right To Privacy in India Essay.

Introduction

Today, the degradation of the inner life is symbolized by the fact that the only place sacred from interruption is the private toilet. – Lewis Mumford, American philosopher

The needs of human beings start from the most primary needs such as food, clothing and shelter to secondary needs such as education, work and recreation and further on to wants such as entertainment, good food, leisure travel, etc . The question that must be asked is where does privacy fit into all these needs and wants? Is it a need or is it a want? Is it required anyway?

One might assert that the degree of privacy dictates whether it is a want or a need.

A basic degree of privacy is a primary need in any civilised society. As the degree of privacy increases, it evolves into a secondary need and further to a want. As civilisation evolves, the law has evolved from guaranteeing the most basic needs of humans by converting them to rights and then slowly guaranteeing needs not necessarily for existence as rights, as and when society has been able to gather the resources to provide for these needs.

Yet, questions remain. What is privacy? As pointed out by Roger Clarke, we use many words without exactly considering their meaning. When we use words such as ‘eat’ and ‘zebra’, it does not matter, but when we use words such as ‘discrimination’ and ‘ethnicity’, one cannot have a rational discussion without having a common understanding of the terms .

Furthermore, what do we mean by ‘degree of privacy’? The standards of privacy vary very widely from culture to culture and therefore even the law must accordingly fit into the standards of the society. The standards of privacy which a person living in the densely populated slums of Mumbai finds acceptable are totally different from the standards which the people living in a sparsely populated and remote village in Himachal Pradesh find acceptable, assuming that we leave alone the standards employed by the Scandinavians. Can there be a common benchmark for privacy, at least in India?

What cannot be denied, however, is that privacy is important. Warren and Brandeis, two American lawyers, in their seminal paper called ‘The Right to Privacy’, published in 1890 in the Harvard Law Review, could not have put it in a better way: “The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual…”

The most famous paper on privacy to have been published is the above mentioned ‘The Right to Privacy’, in which the authors encouraged a concept of privacy in which they understood privacy as ‘the right to be left alone’. Privacy has several facets such as political privacy, medical privacy, genetic privacy, internet privacy, bodily privacy and privacy of communications. Ruth Gavison has recognised three elements in privacy: secrecy, anonymity and solitude .

The right to privacy is said to have existed in both classical Greece and Ancient China. More recently, Article 12 of the Universal Declaration on Human Rights states, “No one should be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his honour or reputation.”

Nature and Scope

This paper will first analyse how the concept of privacy has evolved in the law, and then focus upon the status of the right to privacy in India.

Objectives

The researcher will attempt to answer the following research questions:

* What is privacy in the eyes of the law?

* How has the concept of the right to privacy evolved in the law?

* What is the status of the right to privacy in India?

In the opinion of the researcher, the first research question cannot be explicitly answered and it is hoped that the reader gets an indication of what privacy is in the eyes of the law as the paper proceeds.

Research Methodology

The author has referred to a variety of resources for the purpose of this study. These include articles in various journals and on websites. It also includes landmark judgments.

CHAPTER 1

THE EVOLUTION OF PRIVACY

There were some cases in England in the nineteenth century that raised the question of privacy.

In Wyatt v. Wilson , the right to privacy was recognised. Lord Eldon said , “..if one of the King’s physicians kept a diary of what he had heard and seen, this court would not in the King’s lifetime have permitted him to publish it.”

Later, in Prince Albert v. Strange , the courts did not allow a publisher to print and sell portraits of Queen Victoria and Prince Albert, without the consent of the two. In 1858, France prohibited the publication of private facts and set stiff fines for violators.

The landmark paper on the right to privacy was published by two American lawyers, Warren and Brandeis, called ‘The Right to Privacy’, in 1890 in the
Harvard Law Review. In this paper, the two lawyers recommended the availability of actions in the law of tort for a breach of privacy. The authors recommended the application of this right not only as a method to counter the gossip and rumours generated by the press, but also to deter the trend. Subsequently, one of the first official mentions of the right to privacy in the Supreme Court was in Olmstead v. United States , in 1928, where Justice Brandeis, in his dissenting opinion, reiterated the importance of the right to privacy, where he said,

“The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men.”

This view was re-asserted in various subsequent judgments in the United States.

The right to privacy was again reiterated in the Universal Declaration of Human Rights, adopted by the General assembly of the United Nations in 1948. Article 12 states, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” The same words were used in Article 17 of the International Covenant on Civil and Political Rights, drafted in 1966.

Similarly, Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 states, “Everyone has the right to respect for his private and family life, his home and his correspondence.”

In 1965, in Griswold v. Connecticut, the United States Supreme Court struck down a law passed in the State of Connecticut which made the use of contraceptives a criminal offence, because it violated the right to marital privacy, which, in the opinion of the Court, was granted to under the ‘penumbras’ of various ‘guarantees’ under the Constitution.

In Roe v. Wade, the U.S. Supreme Court ruled that a woman’s decision to terminate her pregnancy were a part of her right to privacy.

CHAPTER 2

PRIVACY IN INDIA

In India, the right to privacy has been discussed mostly in the context of privacy as against the state. The researcher shall discuss three cases in this context, which have shaped the right to privacy.

In Kharak Singh v. State of U.P., the petitioner was a dacoit who had been released from custody because there was no evidence against him. The police opened a history sheet against him and he was put under surveillance as under Regulation 236 of the U.P. Police Regulations. Regulation 236 of the Regulations defined surveillance. It read:

“Without prejudice to the right of Superintendents of Police to put into practice any legal measures, such as shadowing in cities, by which they find they can keep in touch with suspects in particular localities or special circumstances, surveillance may for most practical purposes be defined as consisting of one or more of the following measures :

(a) Secret picketing of the house or approaches to the house of suspects;

(b) domiciliary visits at night;

(c) through periodical inquiries by officers not below the rank of Sub-Inspector into repute, habits, associations, income, expenses and occupation;

(d) the reporting by constables and chaukidars of movements and absence from home;

(e) the verification of movements and absences by means of inquiry slips;

(f) the collection and record on a history-sheet of all information bearing on conduct.”

The petitioner challenged this Regulation on the grounds that they violated the fundamental rights granted under Article 19(1) (d), which granted the freedom to move freely throughout the territory of India, and Article 21, which grants the right to life and personal liberty, of the Constitution of India. Further, the Regulations were not the result of any procedure established by law, as was conceded by counel for the respondents.

The bench ruled by a majority that the right to movement throughout the territory of India only included the right of locomotion throughout the territory of India without tangible inhibitions, and it did not include psychological inhibitions. Similarly, the right to personal liberty could only be violated by ‘tangible’ methods, and the makers of the Constitution did not intend to protect mere ‘personal sentiments’. The majority also ruled that the right to privacy was not guaranteed in the constitution as such, and the attempt to monitor the movement of a person which only violated the right to privacy did not violate a fundamental right. However Section 236(b) of the Regulation was struck down, as it was held to be a direct violation of the right to personal liberty which was not in accordance with any procedure established by law.

However the minority judgment differed widely. It recommended the striking down of the entire Regulation in question (Regulation 236). It held that

“In an uncivilized society where there are no inhibitions, only physical restraints may detract from personal liberty, but as civilization advances the psychological restraints are more effective than physical ones. The scientific methods used to condition a man’s mind are in real sense physical restraints, for they engender physical fear channelling one’s actions through anticipated and expected groves. So also the creation of conditions which necessarily engender inhibitions and fear complexes can be described as physical restraints.

Further, the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. 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 liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person’s house, where lie lives with his family, is his “castle”: it is his rampart against encroachment on his personal liberty.”

In Govind v. State of M.P. , the Supreme Court had to face, once again, questions arising out of a similar set of circumstances. The petitioner, a suspected criminal, challenged the validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations, asserting that they were not framed under any provision of the Police Act, 1961, and, even if they were framed under any provision of the said Act, they were violating the fundamental rights granted under Article 21 and Article 19(1) (d).

The Regulations were as follows:

“855. Surveillaance proper, as distinct from general supervision, should be restricted to those persons, whether or not previously convicted, whose conduct shows a determination to lead a life of crime. The list of persons under surveillance should include only those persons who are believed to be really dangerous criminals. When the entries in a history sheet, or any other information at his disposal, leads the District Superintendent to believe that a particular an individual is leading a life of crime, he may order that his name be entered in the surveillance register. The Circle Inspector will thereupon (open a) history sheet, if one is not already in existence, and the man will be placed under regular surveillance.

856. Surveillance may, for practical purposes, be defined as consisting of the following measures:

(a) Thorough periodical enquiries by the station-house officer as to repute, habits,

Association, income, expenses and occupation.

(b) Domiciliary visits both by day and night at frequent but irregular intervals.

(c) Secret picketing of the house and approaches on any occasion when the

Surveillance (surveillant?) is found absent.

(d) The reporting by patels, mukaddams and kotwars, of movements and absences from home.

(e) The verification of such movements and absences by means of bad character rolls.

(f) The collection in a history sheet of all information bearing on conduct. It must be remembered that the surest way of driving a man to a life of crime is to prevent him from earning an honest living. Surveillance should, therefore, never be an impediment to steady employment and should not be made unnecessarily irksome or humiliating. The person under surveillance should, if possible be assisted in finding steady employment, and the practice of warning persons against employing him must be strongly discouraged.”

A three judge bench dismissed the petition on the grounds that it was framed under provision 42 (6) (c) of the Police Act, 1961, and that the measures undertaken through these Regulations were a reasonable restriction to the rights guaranteed under Articles 19 (1) (d) and 21 of the Constitution.

However, the Court had much to say about the right to privacy. It recognised the fact that the right to privacy was a very important right, and it held that if the above mentioned Regulations were read to widely, they would be a grotesque violation of the fundamental rights, because of which when the same Regulations could be read either widely or narrowly, the court must water them down to read them narrowly. The Court also said that the framers of our Constitution did not envision a ‘police rajeven’, and that legality apart, the regulations did not accord well with the essence of personal freedoms, because of which the state must desist from making laws on the edge of unconstitutionality.

In R. Rajagopal v. State of Tamil Nadu , the petitioners, who were the editor and associate editor of a Tamil weekly magazine, requested the court to issue a writ restraining the State of Tamil Nadu and the Superintendent of Prisons, Salem, Tamil Nadu, to prevent them for carrying out the actions that they had threatened in a letter to the weekly, because the weekly intended to publish the autobiography of a prisoner named Auto Shankar who was sentenced to death. The autobiography contained several assertions that established the involvement of several IPS and IAS officers in the crimes that the prisoner had committed. However, it was not clear whether the prisoner had expressly consented to the publication of his autobiography in the weekly and also whether he had written the autobiography himself. The court, working on an assumption that Auto Shankar had neither written the autobiography nor authorized the weekly to publish it, placed the following questions for consideration:

“(1)Whether a citizen of this country can prevent another person from writing his life story or biography? Does such unauthorised writing infringe the citizen’s right to privacy? Whether the freedom of press guaranteed by Article 19(1)(a) entitles the press to publish such unauthorised account of a citizen’s life and activities and if so to what extent and in what circumstances? What are the remedies open to a citizen of this country in case of infringement of his right to privacy and further in case such writing amounts to defamation?

(2)(a) Whether the Government can maintain an action for its defamation? (b)Whether the Government has any legal authority to impose prior restraint on the press to prevent publication of material defamatory of its officials? and (c)Whether the public officials, who apprehend that they or their colleagues may be defamed, can impose a prior restraint upon the press to prevent such publication? (3)Whether the prison officials can prevent the publication of the life story of a prisoner on the ground that the prisoner being incarcerated and thus not being in a position to adopt legal remedies to protect his rights, they are entitled to act on his behalf?”

As might be rather obvious, these questions essentially raised the question of the right to privacy vis-à-vis the freedom of the press. The Supreme Court, in this case, a two judge bench, took a much more liberal view of the right to privacy in this matter, and ruled that

“1)The right to privacy is implicit in the right to life and 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 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. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

(2)The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should

not further be subjected to the indignity of her name and the incident being publicised in press/media.

(3)There is yet another exception to the rule in (1) above- indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters

not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule.

(4)So far as the Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them.

(5)Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media.

(6)There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media.”

Thus, we see a shift in the line adopted by the Supreme Court, from a very positivistic interpretation of the rights enshrined in the Constitution, to a very liberal approach in which it read the right to privacy as implicit in Article 21 of the Constitution. However, the exact position of the right to privacy as guaranteed by the Constitution is still unclear, because the judgment in Kharak Singh v. State of U.P. was delivered by a 7 judge bench, and the judgments after this were all delivered by a lesser number of judges.

CONCLUSION

The right to privacy is a right that has been recognised in relatively recent times. The evolution of this right can be traced to 1820 at the earliest. The real landmark, however, can be traced to 1890 when ‘The Right to Privacy’ was published in the Harvard Law Review. The right has subsequently been recognised as guaranteed under the Fundamental Rights of the Constitutions of both the United States as well as India. The right has also been recognised in international documents such as the Universal Declaration of Human Rights (1948), the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and the International Covenant on Civil and Political Rights (drafted 1966).

In India, the right to privacy has been recognised and its ambit expanded over a period of time starting from Kharak Singh v. State of U.P. , where there was a very positivistic interpretation of the Constitution and the court refused to accept that the right to privacy is guaranteed in any way in the Constitution, to R. Rajagopal v. State of Tamil Nadu , where the court held that the right to privacy is implicitly guaranteed under Article 21 of the Constitution.

The right to privacy, as covered by the law, mostly covers the right to privacy as against interference by the government and as against unwarranted publication of personal information. Thus, it either comes into conflict with the duties of the government of the day, or with the freedom of the press.

However, in the opinion of the researcher, the right to privacy must one day expand to cover privacy in a much broader sense to cover protection against unwarranted disturbance, such as the right to undisturbed solitude, undisturbed work and undisturbed recreation. Thus, the right to privacy must become all-encompassing, from the right against government interference, to the right against unwarranted public attention, to remedies against disturbance as a nuisance.

In a world which is becoming more and more densely populated and where the amount of personal space available to us is decreasing in physical terms, the right to privacy shall expand so as to compensate for the loss of physical space by allowing the intense possessiveness of the limited spaces that we do own. Not only is this beneficial, it is, to some extent, essential for the meaningful existence of human beings. The researcher would like to conclude by stressing the importance of privacy as said by the famous actress Marilyn Monroe: “A career is born in public – talent in privacy.”

BIBLIOGRAPHY

Clarke, Roger, ‘ Introduction to Dataveillance and Information Privacy, and Definitions of Terms’, available online at < http://www.anu.edu.au/people/Roger.Clarke/DV/Intro.html >, last visited on 30th July, 2006.

Denning, Lord, 1993, What next in the law, 1st Indian Reprint, Aditya Books Private Limited, New Delhi, pp. 219-270.

Diwedi, Vishnu Prasad, ‘The right to privacy: A new horizon’, in the AIR Journal (1991).

Privacy International, ‘Privacy and Human Rights 2003: Overview’, available online at http://www.privacyinternational.org/survey/phr2003/overview.htm#ftnref8 , last visited 1st August 2006.

Warren, Samuel D. and Brandeis, Louis D., 1890, ‘The Right to Privacy’, Harvard Law Review, IV (5), available online at < www.louisville.edu/library/law/brandeis/privacy.html >, last visited 1st August 2006.

The Right To Privacy in India Essay