The tension between the right to privacy and the freedom of the press often plays out in dramatic fashion, with real-world consequences that stir public debate. India, a nation with a rich tapestry of legal precedents and journalistic vigour, offers a compelling backdrop for examining this delicate dance. The interaction of privacy law and journalism is highly dynamic and is a matter of serious legal and ethical controversies.
In recent years, India has debated the question of balancing journalistic integrity and privacy over and over again. In 2013, the Snoopgate scandal in Gujarat, created havoc. The scandal erupted when it was revealed that the phone calls of a young woman, who was allegedly involved with a prominent political figure, were being secretly recorded. The revelations came to light through investigative journalism, leading to widespread public outrage. The case raised critical questions about the extent to which privacy can be encroached upon for the sake of journalistic inquiry. While the scandal underscored the vital role of journalism in exposing misuse of power, it also ignited a debate about the ethical boundaries of such exposure.
This article delves into the intricacies of how privacy rules, especially within the evolving framework of the Digital Personal Data Protection Act (DPDPA) affect journalistic practices. We also examine the specific exceptions for journalistic activities throughout successive DPDPA drafts that show how they have been framed to achieve a balance between both public good and personal privacy. To better understand the issue, we will analyse some legal court cases that have been highlighted to shed more light on permission to publish under DPDPA as well as real-life examples.
Exemption for Journalistic Activities Throughout DPDPA Iterations
With the decision in Puttaswamy v. Union of India (2017), privacy was recognized as a fundamental right to be read into Article 21 under the Constitution of India. Since then, multiple iterations of the Indian data privacy law have been considered; before the DPDPA 2023 was passed.
Notably, the first iteration; the Personal Data Protection Bill, 2018 proposed by the Justice Srikrishna Committee on Data Protection had, under clause 47 – specifically exempted journalistic purposes from the purview of the act.
A new draft was introduced in the Lok Sabha as the Personal Data Protection Bill, 2019; under section 36(e) of which – the processing of personal data necessary for or relevant to journalistic purposes was exempted from specific provisions of the act. The particular iteration stipulated that for such exemption, the entity must be compliant with “any code of ethics issued by the Press Council of India, or by any media self-regulatory organisation”.
The 2019 bill was scrutinised by a Joint Parliamentary Committee, which in December 2021 published its report along with the finalised Data Protection Bill, 2021 – which still preserved the exemption provided for processing of personal data for journalistic purposes.
Things took a turn when the “journalistic purposes” exemption for processing personal data was found to be notably absent from the Digital Personal Data Protection Bill, 2022 and also from the current DPDPA 2023.
The Digital Personal Data Protection Act (DPDPA) passed in 2023 is a long-awaited premiere legislation that provides for the processing of digital personal data in a manner that recognizes both the right of individuals to protect their data and the need to process such personal data for lawful purposes.
According to Section 3, the act applies to the processing of “digital personal data” i.e., data collected in digital form or data collected in non-digital form but digitised subsequently.
Under the act, multiple duties have been imposed upon a “data fiduciary” i.e., any entity that processes any personal data. Such data may only be processed for either lawful purposes after obtaining the consent of the individual, or for certain “legitimate uses”.
The act increases the accountability, responsibility and transparency of social media platforms, insurance companies, banks, e-commerce platforms and the litany of other entities that process data. In a nutshell, the legislation is great news for the protection of individual data privacy.
However, this wide net cast by the DPDPA has caught an important entity in its ambit – the press. The Editors Guild of India (EGI) has lamented that the lack of exemption for journalistic activities under the DPDPA is detrimental to the freedom of the press.
Permission to publish?
Under the DPDPA 2023, the Data Protection Board (the central government is in the process of setting up the board) holds the power to inquire into matters and impose penalties upon complaints of breach of personal data. The absence of the journalistic purposes exemption from the act could lead to a situation where journalists may have to stand before the Data Protection Board to defend the publication of their stories containing personal data.
Considering that personal information and human stories are usually the raw material for journalism, the DPDPA has a negative infliction upon the freedom of the press.
The EGI had specifically expressed concern about the need for consent under the DPDPA when it wrote to the Minister of Electronics and Information Technology in February 2024, regarding grave concerns over the impact of DPDPA 2023 on the continued existence of journalistic activities in India.
Personal data under the act can be processed on either the basis of consent or for “legitimate uses” which are prescribed under section 7. Clause (a) of section 7 recognizes voluntary providing personal data to the data fiduciary as a legitimate use. This could involve interviews and questionnaires as forms of journalism. However, according to EGI’s representation – most other forms of journalism – including investigative journalism, general news reporting, opinions and analyses are dependent upon private research and may not survive the anvil of consent or legitimate use under DPDPA.
Furthermore, under Section 12 – the DPDPA introduces the right to erasure, allowing individuals to request the deletion of published stories that contain their personal data. This provision could lead to the removal of valuable investigative work and hinder transparency.
The Srikrishna Committee Report titled “A Free and Fair Digital Economy: Protecting Privacy, Empowering Indians” commented that “if journalists were made to adhere to the grounds of processing personal data, it would be extremely onerous for them to access information”.
Thus, the potential of the DPDPA to negatively affect the freedom of the press is concerning and unacceptable as it will directly impact journalism by making it harder for journalists to do their job while giving a tool to news subjects to get reports removed based on the right to erasure.
Where’s the Line?
Where DPDPA could possibly curtail the freedom of the press, the other extreme is also not a favourable one. Where the press can be key to uncovering and exposing frauds and scandals in “public interest”, the whitling attention spans of the masses and the hunger for virality and content could also lead to the media infringing individual privacy for what the “public is interested in”.
In R. Rajagopal vs State of Tamil Nadu (1994) 6 SCC 632, the Supreme Court called for a “proper balancing of the freedom of press” with other laws. Indeed, to ascribe a proper effect to the freedom of the press while still maintaining the right to privacy, a proper balance needs to be achieved.
For this reason, it is asserted that the DPDPA must provide for a journalistic exemption that ensures that public interest may be allowed to override the provisions of the DPDPA in specific scenarios, while also ensuring that such journalistic exemption is not excessive or is not used for malicious purposes.
As envisioned in the Personal Data Protection Bill, 2019 – a code of ethics issued by the Press Council of India or other media self-regulatory organisations could have been a very welcome tool aimed at achieving the balance. The ethics standards could be developed in such a way that would not only cover institutional journalism but also citizen journalism.
Conclusion
India ranks 161st out of 180 countries in the World Press Freedom Index. The rank is constantly eroding while the implication of the DPDPA on press freedom could further hinder a free press – which is often touted as the fourth pillar of any democracy.
The lack of an exemption for journalistic activities in the DPDPA 2023 has the potential to restrict freedom of the press, which is a fundamental right read under Article 19(1)(a). The same needs to be balanced with the right to privacy under Article 21.
It is urged that the Ministry of Electronics and Information Technology, while drafting the awaited rules for the DPDPA ensures that the processing of personal data for journalistic purposes is exempted from the implementation of the same.
