News Broadcasting Standards Authority censures TV9 over privacy violations!

Background

On the 22nd of February 2011, TV9 Andhra Pradesh aired a programme called "Gay Culture Rampant in Hyderabad". The channel had obtained the names and phone numbers of individuals from a social networking site for gay men and displayed their photographs and personal details during the course of the programme. Individuals were also called and asked to reveal their sexual preferences in an obvious attempt to sensationalize what they described as "gay culture". The overall aim of the programme appears to have been to generate animosity towards gay men in particular and sexuality minorities generally and to whip up anxiety about the 'rampancy' of 'gay culture'.Following sporadic protests in Hyderabad, Bangalore and other cities by LGBT activists, including numerous email complaints sent to the channel as well as the NBSA, the NBSA took "suo motu" cognizance of the case and summoned TV9 to a hearing on the 15th of March 2011. After receiving TV9's defence, Justice Verma of NBSA issued his decision on the 22nd of March. In his order, Justice Verma was unconvinced by any of the defences raised by the channel and held that TV9 had violated Clauses 5 (Sex and Nudity),6 (Privacy) and 9 (Sting Operations) of the NBA Code of Ethics which bind News Broadcasters. TV9 was ordered to display an apology for carrying the story on its channel for a fixed duration during peak hours.  In addition TV9 was also fined an amount of Rs. 1 lakh to be paid to the coffers of the NBSA.

Privacy and the NBSA

Clause 6 of the Code of Ethics contains a detailed elaboration on the privacy responsibilities of News  Broadcasters. The relevant portion of the clause is reproduced below:

"As a rule channels must not intrude on private lives, or personal affairs of individuals, unless there is a clearly established larger and identifiable public interest for such a broadcast. The underlying principle that news channels abide by is that the intrusion of the private spaces, records, transcripts, telephone conversations and any other material will not be for salacious interest, but only when warranted in the public interest."

As is evident, this is a fairly  thoughtful elaboration of the principle of privacy when applied to news broadcasting.

In its defence, TV9 had claimed that it was merely making use of information that was already available in the public domain, since these details were obtained from a publicly accessible social networking website. However, Justice Verma found that since the site required an act of logging in through a password protected site, it was not 'available in the public domain' in the manner TV9 was implying.  In a crucial passage which could provide the key conceptual scaffolding that upholds individuals of their privacy online, Justice Verma distinguishes between the limited public accessibility of information and its being 'in the public domain':

"While the names, particulars and photographs etc of individuals may be available in the.. members-only section, it cannot be said that such names, particulars and photographs are therefore available in the the public domain"

So, Justice Verma seems to be saying, merely because one volunteers to publish information about oneself on a social networking site, one has not thereby foregone all of one's rights to privacy against the world. Social networking sites are thereby construed as private spaces and decidedly not "public" ones.  I think this could be Justice Verma's most significant contribution to the advancement of privacy rights in India in the years to come.

Post-script:

Even though the NBSA is not a statutorily constituted 'official' adjudicatory body (and hence the order will lack precedent value in the formal judicial system), the order itself comes as a welcome boost for citizens' rights to privacy and dignity - especially those from marginalized groups - in the face of the totalizing invasive power of broadcast media. Further, having been penned by former Chief Justice of India, Justice JS Verma (who decided some of the most critical cases in the 90s - including SR Bommai and Ismail Faruqui), the decision bears the characteristic seasoned imprint of a judge who is sensitive to the importance of upholding constitutional values. This is an important articulation of  the balance between privacy/dignity and the freedom of the press, and will not be easy to ignore.

As important as this order is viewed from the narrow domain of 'Privacy', I think its real significance lies in the fillip it gives to the campaign for the rights of sexuality minority in India. Although the Naz Foundation case unequivocally upheld the rights of sexuality minorities to a private sphere of intimacy free from state interference, the establishment of this right as Fundamental in Indian constitutional jurisprudence will depend in some measure on its repeated invocation and reaffirmation in subsequent cases by the judiciary.  By holding that the "Programme needlessly violated the right to privacy of individuals with possible alternate sexual orientation, no longer considered taboo or a criminal act" the order advances, "not wholly or in full measure but very substantially" the important feat of constitutionalization of criminal and civil law in aid of sexuality minorities in India that was  achieved by the Naz Foundation case.

Another reason why this order is so important is that it demonstrates the viability of the News Broadcast Authority - a voluntary self regulatory industry body- as an expedient channel of redress for the public, where the formal adjudicatory system might have proven too cumbersome to access or have delayed justice to the degree of denial. By delivering its decision - and a  just decision at that - within a month of the date of the incident the NBA has succeeded in inspiring the public's confidence in its mission to serve as a truly impartial and serious regulator of news broadcast in India.

Aside, some of the most important articulations of the Right to Privacy in India that have emerged from the higher judiciary have involved severely marginalized groups including HIV patients, prisoners, sexuality minorities, sex workers and children.  In a sense, if the average non-marginalized citizen in India can be said to possess a 'right to privacy' today, she owes that right, almost entirely to the presence of large numbers of marginalized groups in this country.

Bibliography

1. http://gaysifamily.com/wp-content/uploads/2011/03/TV9_NBA_Order.pdf
2. http://www.nbanewdelhi.com/pdf/final/NBA_code-of-ethics_english.pdf