Balancing Individual Privacy with Press Freedom
SEEMA DHAMI argues that freedom of the press and individuals’ right to privacy need to be harmonized in practice.
Alan F. Westin, a privacy expert at Columbia University, once wrote: Privacy is the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others (self information control right). In this age of mass media, individual privacy has become a casualty of journalists’ feeding frenzy and it has become really hard for societies to determine the nature and process of information in the public domain. In this article I reflect on the problem in Nepal’s context.
Despite being a social animal, every human being seeks seclusion and solitude within the open mirror of society. Privacy is inherent in the behavior of human beings. Every human being needs autonomy, self-determination, and respect for his/her dignity. These factors inspire and compel her/him to make a shell of an individual. Privacy recognizes individual and social entity in the society. Hence, Privacy has been recognized and guaranteed today in many countries as a fundamental right of individuals.
Privacy incorporates, from the rights perspective, an individual’s life, residence, property, documents, correspondence, and private information. Due to established values of a male-dominated society, in particular, women in Nepal are more vulnerable regarding their privacy. Many traditional, cultural and religious prejudices against women emphasize maintaining women’s chastity. To save her public dignity and sanctity, a woman has to hide herself beneath the curtain of privacy.
There is no dearth of laws on women’s privacy rights, though. Special provisions regarding privacy of women are included in the Nepali law (examples include State Cases Act 2049, Muluki Ain 2020 and Police Act 2012). Likewise, international instruments also have special provision regarding women's privacy such as the four Geneva Conventions. Increasingly, as the mass media expand, the right to freedom of press is encroaching upon the personal life of individuals, often disregarding the privacy of individuals, especially the women.
Both rights— right to privacy and right to press freedom— create some real tension in modern socities. The former seeks to limit public exposure of individual affairs whereas the latter a maximum disclosure of public affairs (and increasingly and sadly, private affairs of individuals who are not even public figures). In this content, it is now imperative on the media to strictly adhere to their code of conduct in order to respect private lives.
Press Freedom Law and Right to Privacy
Subsequent constitutions of Nepal, including the interim constitution (2063) guarantee press freedom and the right to privacy. They include provision on compensating every citizen whose privacy is found to have been violated.
In the same way, Gali Beizzati Ain 2016 prohibits attacking individual privacy by any publication. Section 3 of the Ain stipulates that the press shall not defame any particular person. Section 8 is particular about women’s privacy. It says that any violator will be punished for “his acts, gestures, which violate the privacy of women." The law recognizes that the sense of privacy is a natural instinct on the part of human beings for they want to avoid any unnecessary and unwarranted intrusion in their personal lives.
The concept of right to privacy developed even during the orthodox Hindu regime of the past. It was first enshrined in the constitution of the Kingdom of Nepal, 2047 (Article 22). The current interim constitution (article 28) as well as the interim constitution (BS 2007) also provided for this right. Interestingly, the right to privacy was not provided as a fundamental right in the constitutions of 2019 and 2015.
The drafters of the subsequent constitutions realized that the right to privacy is one of the essential rights of an individual citizen. They saw its direct connection with the dignity of the individual. This understanding led to enumeration of this fundamental right in the Constitution of the Kingdom of Nepal (2047). The current interim constitution (article 28) stipulates that except on the circumstance as provided by the law, the privacy of the person, his or her residence, property, document, statistics, correspondence and character is inviolable
Similarly, the constitution of the country also guarantees freedom of the press (article 15 interim constitution, 2063). It ensures the right to freedom of press and publication. This right was included as a specific fundamental right in previous Constitution of Nepal 2047.
Freedom of the press means the right to print and publish without any interference from the state or any public authority. The liberty of the press consists freedom from prior restraints upon publication of content. Freedom of the press also means freedom of dissemination, news and views from diverse and antagonistic sources for the knowledge and welfare of the people.
The Press and Publication Act (2048), a new version of the earlier Press and Publication Act (2039), also guaranteed the constitutional freedom of the press. The Gali Beizzati Ain 2016 (such as in article 3 and 8) recognizes freedom of the press. It says that every human being shall enjoy free press, without any discrimination on the ground of race, color, sex etc.
There are, however, very few International Conventions which guarantee right to privacy, but there are several conventions regarding press freedom. For example, the right to privacy is enumerated in article 12 of the Universal Declaration of Human Right 1948 (UDHR). However, it does not include an explicit provision regarding the right to privacy of women. And that is true with other international conventions as well. The only clear provision is found in the International Convention on Elimination of All form of Discrimination Against Women 1979 (CEDAW). It is a special convention which urges state parties to provide equal right to women. It stipulates that all women must be equally able to enjoy the rights provided by this convention. Women should be accorded dignity and honor.
Journalists’ Code of Conduct
A professional code of ethics is essential in enforcing constitutional provisions and laws of the land. They provide a moral or legal compass to journalists also. It means that all behaviors or code of conducts are enforceable by certain laws and regulations. Not following such Code of conducts means violation of rules and regulations, punishable in accordance with the laws.
The code of conduct developed jointly by the Federation of Nepalese Journalists (FNJ) and Press Council Nepal (PCN) clearly prohibits invasion on individual privacy. But if we analyze cases of press violations of individual privacy, we find the breaches of the code which regulates the behaviors of journalists.
PCN received 10 complains during 2057/58 and 16 complains during 2058/59 fiscal year. These complaints are not explicitly related with the privacy of women. From fiscal year BS 2049 up to 2059, a total of 113 complaints were filed at PCN. Among them 39 were categorized as defamation. The effort to compile such cases is a good step toward implementing the code. It shows a growing concern about the need to abide by the code.
The first effort at forming a professional conduct can be traced to the Press Commission (2015). It had adopted certain rules to foster professional ethics in journalists. The PCN leadership formally articulated a code of conduct for journalists in BS 2025. The PCN had also issued a code of conduct in BS 2033. The code has played a significant role in providing ethical guidelines journalists. Moer recently, professionals held a national conference in Kathmandu with the aim to update the code of conduct so that journalists could be provided with relevant guidelines in a changing society.
All these codes have prohibited encroaching individuals’ right to privacy as well as defamation. The Code of Conduct (2060) explicitly prohibits, except in cases that benefits the larger public, invasion of privacy of individuals, women or men.
Limitations on Journalism
If journalists are not aware of their professional limitations (reporting, writing etc.) vis-à-vis privacy laws or the code of conduct (particularly women's rights), they may encounter ethical conflicts in their works. If journalists do not abide by rules and ethic, or report or write (in the name of press freedom) without regard to privacy or dignity of individuals (including women), they most likely will practice irresponsible journalism.
There are several instances of such irresponsible journalism. One prominent case involves Shreesha Karki, an upcoming film artist. In 2059/6/23 the weekly Jana Aastha published an article with the headline "Filmi Nagari Ko Rangin Raat". The article accompanied nude photo of the actress. The case not only violated Karki’s right to privacy but also violated her fundamental right to life. The defaming article ultimately led to her suicide. It remains a classic case of press encroachment on an individual’s privacy and dignity in Nepal.
Stigma of Privacy and Dignity
Women are portrayed in various forms in our society, sometimes as benevolent or malevolent. At other times as powerful, but most often as weak and helpless. The patriarchic structure of our society has rendered them as second-class citizens. They are considered emotionally as well as physically weak and are accepted to be shy, helpless and fearful.
Historically and culturally, women were considered as inferior to men. Minorities needed to be protected or patronized. Kautilya, the author of Arthaśāstra, an ancient Indian treatise, wrote that it was a king’s duty to protect weaker section of the society, which included women. Women were confined to their homes as dependant on their male members. Manu Smriti, an ancient Hindu scripture, sums up the perfect role for women with this statement: A girl must be controlled by the father when she is young, by the husband when she is married and by her son when she is old.
The Nepali law regarding rape stipulates that she can defend her chastity. In the course of her defense, she may resort to a reasonable force against her assailant. Even if she kills the assailant, she is not liable for the death penalty. Perhaps the most important questions on journalistic ethics are apparent in stories that report rape cases. Too often, journalists sensationalize the victims, and even identify them by names while a case is still under investigation. This is the most glaring example of invasion of privacy for it adds much pain and agony to the already traumatized victim and her family members, specially in a society where rape is considered a disgrace, a stigma.
Rape cases expose the victims individual life to the scrutiny of not only the court but also the media galore. The legal proceedings take place in a camera court. The investigation of a rape case must be made by women police officers, or the deposition of the rape victim must be reordered at the police station in the presence of women social workers. But doing so is not possible at all times and the victim often gets exposed rather than the assailant. The driving force behind such investigations is often an effort at proving the virginity of the rape victim, rather than prosecuting the assailant.
Thus, true journalistic freedom hinges on carefully adhering to the code of conduct, and an equally careful exercise of the right to information, adhering to accuracy of facts but at the same time withholding vital information on the victims, the suffering and the minors. Right to privacy is a matter of personal liberty. In deed, as the saying goes, the role of the press is to afflict the comforted and comfort the afflicted. The powerful and the public figures deserve to be scrutinized more and the weak and private citizens deserved to be protected by the media against vested inerests.
Individual privacy, as a human right, is essential for the fullest realization of innate characteristics which nature has bestowed on human beings. Such a right is necessary to ensure the dignity of every person irrespective of one's race, religion, nationality, language, sex or any other factor. If we look at the rights perspective of journalists, then they may claim that they have the right to exercise their professional rights, to investigate and to report the truth. But even individual or professional rights have to be widely recognized as such by the “Society” for them to be individual or professional rights. There should be a balance between individual assertion and societal recognition.
Without doubt, freedom of the press and individuals’ right to privacy, both enshrined in the constitution, need to be harmonized. There is a need for journalists to be aware of their professional ethics, emphasizing the dignity and the fundamental right to privacy of individuals (particularly women and minors). Journalists should find a balance between various fundamental rights. But awareness alone is not enough; they must put such ethical reasoning into practice. Press freedom is not absolute, there are and there must be some reasonable limitations to that ideal.
1. Base Line Study on Inheritance Right of Women, published by Forum for Women, Law & Development (2000)
2. Code of Conduct of Journalists 2060, published by Press Council Nepal.
3. C. Naseema, Human Rights Education
4. Dr. Hari Bansh Tripathi, Fundamental Rights & Judicial Review in Nepal, published by Managing Director Padam Siwakoti,(2002)
5. International Convention on Elimination of All Forms of Discrimination Against Women
6. Kautilya’s Arthashastra.
7. Muluki Ain 2020, published by Law Book Management Board, HMG, Ministry of Law
8. Press Council Nepal, 27th Annual Report, published by Press Council Nepal
9. Raghu Mainali, Radio Bachan, published by Communication Assistance Foundation (CAF), 2059
10. The Interim Constitution of Nepal 2063
11.The Constitution of the Kingdom of Nepal 2047, published by Law Book Management Board, HMG, Ministry of Law
12. Universal Declaration of Human Right 1948 (UDHR)
Seema Dhami is an advocate and is associated with Kathmandu School of Law. She contributed this article to Nepal Monitor.
Posted by Editor on December 22, 2008 7:25 PM