Legal framework for Privacy of Minors 

There can be no keener revelation of a society’s soul than the way in which it treats its children.[1]

The pervasiveness, reach and digital permanence of the news and social media has raised serious issues about verification, authenticity of news, harm to reputation and the privacy of individuals. The instantaneous dissemination of content also makes it difficult to counter or monitor or correct the content, be it false or true.

A subset of these issues is the issue of the privacy of minor children including child stars, sportspersons, children of celebrities who often receive, at times unwanted limelight[2]. This puts immense pressure on some parents who wish to shield their child from public glare to let their child have a normal childhood shorn of excessive social or media glare/comment(s). Minor children unschooled in the ways of life are vulnerable to attacks on news websites/newspapers, the consequences of which can lead to severe psychological repercussions and even trigger psychiatric illnesses.

Further, reporting details and publishing pictures of children in areas affected by civil unrest may also lead to life threatening consequences for them. Certain other examples where dangers may arise are cases e.g. of child witnesses, reporting on family issues, rioting etc. Reporting in such cases may have grave consequences for the child.

This article focuses on reporting about minors. It focuses on what balancing criteria should be evolved to differentiate reporting (including reposting) by news or infotainment portals/newspapers about children from harmful intrusion and outlines mechanisms that can be employed to implement it.

While some elementary norms do exist, but it is clear that they are rudimentary and fragmentary to meet the current challenges. Their awareness and execution are also missing. The current norms do not find full expression in media coverages, court judgments and executive actions. Further institutional fortification and cohesive implementation are necessary to protect minors. There is therefore an arguable need for the public to be informed about the debate, the journalists to be sensitive, the Government agencies to be promptly responsive and the courts to evolve an approach for the welfare of minor children.

THE CONCEPTUAL MUDDLE

In area of protection of privacy of children in particular and privacy in general there are often differing views on what falls with its purview. This flows from conceptual ambiguity on what constitutes privacy, what constitutes “free expression”, “public interest”, “news” and an understanding of where lies the laxman rekha of privacy. This is heightened by the fact that what falls within its sphere also evolves as society changes such as changes in technology, laws, economic systems, norms etc.  The categorisation is unclear and many a times uncertain.

A research scholar/journalist may argue that coverage about children constitutes an important part of freedom of expression and also contributes to their welfare. News, research about children’s welfare, health does require coverage of children. Thus  e.g. reporting on child deaths[3], flood/riot affected families and their children[4]; issues of children in slums[5], children affected by violence[6], lives of children in a digital age[7], children affected by HIV/AIDS, etc. does require write ups and pictures of children. These cover at times unfortunate events or circumstances and are necessary to provide data and awareness to formulate responsive development schemes.

However, besides the above there also exist “news features” on “child stars” or children of public figures such as politicians/actors/sportsperson often in the form entertainment columns or “feature column”[8]. At times such features involve instances of revealing pictures, sexualized representation children or their body parts in newspapers/news websites portals; shaming minor children, calling them unpopular, or undesirable, etc.[9] The content often contains pictures and articles without any consent from the those covered.

The third situation is when the minor children set up their own social media accounts posting/re-posting pictures of themselves, their families, their friends, their contact details, their opinions, their preferences unmindful of and unprepared for the consequences it may entail. They often open themselves to trolling[10] often with invisible and varying degree of repercussions that many children are ill equipped to handle[11]. This is further exacerbated by the nature of the digital media where data is near impossible to erase. This concern has been aptly noted by S.K. Kaul, J. when he observed: (K.S. Puttaswamy case, SCC p. 630, para 631)

“631. The impact of the digital age results in information on the internet being permanent. Humans forget, but the internet does not forget and does not let humans forget. Any endeavour to remove information from the internet does not result in its absolute obliteration. The footprints remain. It is thus, said that in the digital world preservation is the norm and forgetting a struggle[12]

The Court further observed: (SCC p. 630, para 631)

“633. Children around the world create perpetual digital footprints on social network websites on a 24/7 basis as they learn their “ABCs”: Apple, Bluetooth and chat followed by download, e-mail, Facebook, Google, Hotmail and Instagram[13]. They should not be subjected to the consequences of their childish mistakes and naivety, their entire life. Privacy of children will require special protection not just in the context of the virtual world, but also the real world.[14]

Indian law currently does not have a clear sighted approach to these problems. The news media is regulated by self imposed guidelines that are like pious wishes and lack any degree of enforcement. There is thus an apathy to such issues and a fearlessness about consequences.

In this complex crucible, where children are unwary victims of their own actions and at times unconscious of actions of others, it is imperative to evolve or further the currently existing principles and develop a model  to cater to these issues and mediums. A model that is clear, practical and also helps distinguish the socially relevant reportage and manner of reporting from that where the individual child’s  interest far outweighs the social interest in the reported feature. It should also make children safe in the digital world. 

CONSTITUTIONAL FRAMEWORK – A DOMAIN OF COMPETING CONSTITUTIONAL RIGHTS

The news media is chary of restrictions upon their freedom of expression. State infractions upon it is bitterly and tenaciously defended. Where then would lie the dividing line between free speech and privacy. It is worthwhile to examine the Indian law vis-à-vis the free speech and privacy.

Right to freedom of speech and expression

Article 19 of the Constitution of India guarantees as under:

“19. Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) omitted

(g) to practise any profession, or to carry on any occupation, trade or business

(2) Nothing in sub- clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub- clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

Thus the freedom of speech and expression is circumscribed by Article 19(2). Such reasonable restrictions are equally fundamental to the Constitution.

The mode of approach to ascertain the reasonableness of a restriction had been succinctly stated by Patanjali Sastry, C.J., in State of Madras v. V.G. Row[15] thus:

It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.”

Thus what is provided for is a sphere of free speech and expression circumscribed by reasonable restrictions to ensure public order, decency or morality. The same will be weighed on the judicial scale to determine the disproportion of the imposition, prevailing conditions etc.

Article 21

Article 21 of the Constitution reads as under:

21. Protection of life and personal liberty.– No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The Supreme Court has extended the scope and width of this article to include right to education[16], right to health, right to environment[17], the right to shelter and in a recent judgment a Constitutional Bench of the Supreme Court has recognised that the Right to Privacy[18] is integral to the Constitution.[19]

Article 21 however does not make any mention about restrictions upon itself.  In the case of Maneka Gandhi v. Union of India[20] the Supreme Court has recognised that the fundamental rights impact each other and are not to be read as water tight compartments. The reasonableness of restrictions on any right under Article 21 will have to meet the test of reasonableness and the criteria enunciated in Article 19(2). “At a substantive level the constitutional values underlying each article in chapter on Fundamental Rights animate the meaning of others.”[21]

The Supreme has further held that under Article 21 right to “life and liberty are not creations of the Constitutions. These rights are recognised by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within. Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillarsof the Indian Constitution.[22]

The Supreme Court further observed: (K.S. Puttaswamy case, p. 628)

“623. An individual has a right to protect his reputation from being unfairly harmed and such protection of reputation needs to exist not only against falsehood but also certain truths. It cannot be said that a more accurate judgment about people can be facilitated by knowing private details about their lives — people judge us badly, they judge us in haste, they judge out of context, they judge without hearing the whole story and they judge with hypocrisy. Privacy lets people protect themselves from these troublesome judgments.

624. There is no justification for making all truthful information available to the public. The public does not have an interest in knowing all information that is true. Which celebrity has had sexual relationships with whom might be of interest to the public but has no element of public interest and may therefore be a breach of privacy. [The UK Courts granted in super-injunctions to protect privacy of certain celebrities by tabloids which meant that not only could the private information not be published but the very fact of existence of that case and injunction could also not be published.] Thus, truthful information that breaches privacy may also require protection.[23]

The question therefore is what are bundle of the rights that constitute the rights of a minor to privacy and under what circumstances reporting/posting about minors can be said to violate the same. These naturally evolve with time and in response to technological developments and social complexity. With time, specific rights will be read into the same.

The Supreme Court explaining this held:

“479. Both the learned Attorney General and Shri Sundaram next argued that the right to privacy is so vague and amorphous a concept that it cannot be held to be a fundamental right. This again need not detain us. Mere absence of a definition which would encompass the many contours of the right to privacy need not deter us from recognising privacy interests when we see them. As this judgment will presently show, these interests are broadly classified into interests pertaining to the physical realm and interests pertaining to the mind. As case law, both in the US and India show, this concept has travelled far from the mere right to be let alone to recognition of a large number of privacy interests, which apart from privacy of one’s home and protection from unreasonable searches and seizures have been extended to protecting an individual’s interests in making vital personal choices such as the right to abort a foetus; rights of same sex couples—including the right to marry; rights as to procreation, contraception, general family relationships, child-bearing, education, data protection, etc. This argument again need not detain us any further and is rejected.”[24]

The  Supreme Court while attempting to flesh out basic contours of the right to privacy held:

“521. In the Indian context, a fundamental right to privacy would cover at least the following three aspects:

• Privacy that involves the person i.e. when there is some invasion by the State of a person’s rights relatable to his physical body, such as the right to move freely;

• Informational privacy which does not deal with a person’s body but deals with a person’s mind, and therefore recognises that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right; and

• The privacy of choice, which protects an individual’s autonomy over fundamental personal choices.”[25]

This working definition and its mechanism of enforcement in my view needs to be made more extensive in the case of minor children, as they constitute a particularly vulnerable section of society. These rights should be available against the State as well as non-State actors.  The prescient words of  S.K. Kaul, J. reflect this concern. The Court observed:

“587. The capacity of non-State actors to invade the home and privacy has also been enhanced. Technological development has facilitated journalism that is more intrusive than ever before.”

Therefore it is clear that as per Indian constitutional jurisprudence, privacy of individuals particularly children now stands firmly ensconced. A law seeking to enforce it, so long as it meets the test of Article 19(2) would not impinge on the rights of journalists and private actors.

JUDGMENTS OF FOREIGN JURISDICTIONS

1. Von Hannover v. Germany[26]

This case was filed against the Federal Republic of Germany. The applicant claimed that she was the eldest daughter of  Prince Rainier III of Monaco, born in 1957. Her official residence was in Monaco but she lived in Paris area most of the time. As a member of Prince Rainier’s family, the applicant was the President of certain humanitarian and cultural foundations and also represented the ruling family at events such as the Red Cross Ball etc. She did not perform any function within or on behalf of the State of Monaco or any of its institutions. Since the early 1990s the applicant has been trying often through the courts to prevent the publication of photographs about her private life in the tabloid press. The photographs that were subject of the proceedings were published by publishing companies in two German magazines namely, Bunte and Freizeit.

Freizeit magazine published the pictures. These photos showed her with an actor friend Vincent at the far end of a restaurant courtyard. The first page of the magazine described it as “the tenderest photos of her romance with Vincent” and the photos themselves bear the caption “these photos are evidence of the tenderest romance of our times”. Bunte magazine also published certain photographs on 5.08.1993. The first  photographs showed her on horseback with the caption “Caroline and the blues”. The second photograph showed her with her children. The second photograph was captioned “I don’t think I could be a man’s ideal wife”.

There were seven photographs other printed by it on 19.08.1993. The first showed her canoeing with her daughter, the second her son with a bunch of flowers in his hands, the third showed her shopping with a bag slung over her shoulder, the fourth was with Vincent in a restaurant and fifth alone on a bicycle. The sixth showed her with Vincent in London and her son. The seventh showed her shopping accompanied by a bodyguard. The article was titled ‘pure happiness’. There were ten photographs further published in Bunte on 27.02.1997 showing her on a skiing holiday in Zurs.

The Bunte magazine published on 13.03.1997 seven photographs showing her with Prince Ernst Hannover visiting a horse show. The accompanying article was titled “The kiss. Or: they are not hiding anymore”. The next showed her leaving her house in Paris.

The Bunte magazine published her pictures magazine on 10.04.1997 the front page with Prince Ernst Hannover and on the inside page showing them both playing tennis or putting their bicycles down.

The Neue Post magazine published pictures of her at the Monte Carlo Beach Club dressed in a swim suit and wrapped up in a bathing towel, tripping over an obstacle and falling down. The photos which were quite blurred were accompanied by an article titled “Prince Ernst August played fistcuffs and Princess Caroline fell flat on her face.”

After numerous rounds of litigation before the lower courts, the Council of Europe observed that it was fundamentally important to protect private life from the point of view of the development of every human being’s personality. That protection extends beyond the private family circle and also includes a social dimension. People, even if they are known to the public enjoy a “legitimate expectation”  of protection of and respect for their private life. Vigilance in protecting private life is necessary to contend with new communication technologies which make it possible to store and reproduce personal data. The Court further observed that clarity in realm is necessary so that figures of contemporary society or public figures are clear as to the behavior he or she should adopt and know when their behavior is protected and when it is not. The Court concluded with the test that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photographs and articles make to a debate of general interest. The Court concluded that in the facts of the case they made no such contribution since the applicant in the case exercised no official function and the photographs and articles related exclusively to details of her private life. The Court concluded that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and despite the fact that she is well known to the public. The Court observed that even if such public interest exists, as does a commercial interest of the magazines in publishing the photographs and the accompanying articles, in the instant case, those interest must yield to the applicant’s right to the effective protection of her private life.   

2. Campbell v. MGN Ltd.[27]

The conceptual fault lines and the difficulty in balancing the right to free expression vis-à-vis the right to privacy came to the fore in this case. The Appellate Committee of the House of Lords of the United Kingdom was divided in this case. All the Judges agreed that this case challenged the delicate balance between privacy guaranteed under Article 8 of the right to free expression under Article 10 of the European Convention.

Facts of the Case

Naomi Campbell a celebrated fashion model, a house hold name internationally, had filed the claim against the respondent. On February 1, 2001 the ‘Mirror’ newspaper had carried as its story on the front page a prominent article headed ‘Naomi: I am a drug addict’. The article was supported on one side by a picture of Naomi Campbell as a glamorous model and on the other side a slightly indistinct picture of a smiling relaxed Naomi Campbell dressed in a baseball cap and jeans over the caption ‘Therapy: Naomi outside meeting’. The article in brief inter alia stated that the supermodel Naomi Campbell was attending Narcotics Anonymous meetings in a courageous bid to beat her addiction to drinks and drugs.  It further claimed that the thirty year old Campbell had been a regular at counselling sessions for three months, often attending twice a day. The article further stated that despite being a super star she was treated as just another addict. It claimed that she wanted to get rid of her addiction for good. The story continued inside with a longer article spread across two pages. The article was headed ‘Naomi’s finally trying to beat the demons that have been haunting her’.

The article made mention of Ms Campbell’s efforts to rehabilitate herself and that one of her friends said she was still ‘fragile but getting healthy’. The article thereafter gave a general description of Narcotics Anonymous therapy and to some of Ms Campbell’s recent public activities.

The source of information  was either an associate of Ms Campbell or a fellow addict attending meetings of Narcotics Anonymous. The photographs of her attending a meeting were taken by a free lance photographer specially employed by the newspaper to do the job. He took the photographs covertly, while concealed some distance away inside a parked car. In certain respects the Court noted the article was factually inaccurate.

  The general tone and tenor of the article was sympathetic and supportive with the unequivocal undertone of smugness that Miss Campbell had been caught out by the ‘Mirror’. The frequency of her meetings was exaggerated and the duration of her association was inaccurate. Much was made of the fact that previously Miss Campbell had previously publically stated that she had never succumbed to the temptation of drug abuse as many of her peer models in the industry.

On the day the article was published Miss Campbell commenced proceedings against MGN Ltd., the publisher of the ‘Mirror’. The newspaper’s response was to publish further articles, that were highly critical of Miss Campbell. On 5 February 2001 the newspaper published an article headed ‘Pathetic’. Below was a photograph of Miss Campbell over the caption ‘Help: Naomi leaves Narcotics Anonymous meeting last week after receiving therapy in her battle against illegal drugs. The text of the article was headed ‘After year of self-publicity and illegal drug abuse, Naomi Campbell whinges about privacy’.

Lord Nicholas of Birkenhead and Lord Hoffman while dismissing the appeal opined that none of the facts narrated had any aspect of privacy of Miss Campbell involved. Lord Hoffman noted that Miss Campbell had promoted herself with to the use of the media. She and the media had a symbiotic relationship that  exploited each other for advantage.  Lord Hoffman emphasised that she had publically made a false statement ‘about a matter in respect of which even a public figure would ordinarily be entitled to privacy, namely the use of drugs.’ She has also created an image by giving wide publicity in interviews with journalists and on television, to the aforesaid claim.  He opined that while ordinarily a person’s drug rehabilitation will be strictly a private affair but the fact that she had often sought publicity, publically denied the use of drugs gave legitimacy to the newspaper to expose her lie and straighten the record. As regards the photograph the court found nothing offensive or invasive about it particularly as Miss Campbell was used to having her picture taken at various event and because the UK law did not recognise the right to one’s image.

Lord Hope, Baroness Hale and Lord Carswell disagreed. In their separately prevailing opinion the following points of note emerged:

      1. An activity is not private simply because it is not done in public. It does not suffice to make an act private, because it occurs on a private property….certain kinds of information about a person such as relating to health, personal relationships, or finances, as many kinds of activity which a reasonable person applying contemporary standards of morals and behavior, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities;
      2. In the facts of the case the rehabilitation and treatment of Miss Campbell required privacy and anonymity. The therapy was at risk of being damaged if the duty of confidence which the participant owe to each other is breached. The treatment was akin to a medical treatment and health which as such was private.
      3. The test to be applied is not that of a reasonable person of ordinary sensibilities but what has to be examined is mind of a reasonable person who is affected by such publicity.
      4. In balancing the right to privacy and free expression the applicable test should be the threshold test is whether the there was a “reasonable expectation of privacy”. Once the information is identified as ‘private’ by this test, the Court must balance the claimant’s interest in keeping the information private against the countervailing interest of the recipients in publishing it.

Baronness Hale also pointed out that there are different types of speech just as there are different types of private information. Some of which are more deserving of protection than others. The most important was political speech which permitted exchange of ideas and information on matters relevant to the organisation of the economic, social and political life of the country. The same was crucial to democracy. It included revealing information about public figures especially those in elective office which would otherwise be private but is relevant to their participation in public life. Then there is intellectual and educational speech and expression and artistic expression. She opined that it is difficult to make such a claim on behalf “free expression” that does not further the abovesaid social purpose, as was the case before her.

3. David Murray v. Big Pictures (UK)  Ltd.[28]

  This case directly pertained to a minor child. In  David Murray v. Big Pictures (UK) Ltd., one Dr Murray and his wife Mrs. Murray were walking in a street some time after 9 o’ clock in the morning. Mrs. Murray wrote the famous Harry Potter series under the pseudo name of J.K.Rowling. Dr. Murray was pushing a perambulator with his minor son David in it. They went to a café. Two photographs were taken while they were going to the café and the remaining four were taken while they were leaving the cafe. The photographs showed Mrs. Murray walking alongside the buggy and showed David’s face in profile, the clothes he was wearing, his size, the style and colour of his hair and the colour of his skin. It was taken covertly by a photographer of the respondent using long range lens. Neither David who was 19 months’ old, nor his parents were aware that the photograph was taken. His parents were not asked for their consent to any of the photographs being taken.  The pictures were sold to Daily Record and Western Daily Press who published copies of photographs.

It was argued from the side of the claimant’s parents that they have never sought to place the Claimant (minor child) or his siblings in the public eye but have repeatedly and consistently taken steps to secure and maintain the privacy of the claimant and their other children. In particular the children have never been taken to public events such as a book launch at which they would have been exposed to public view and to media and other publicity. The mother had never placed any photograph of any of her children on her website or provided any such photograph for publication; the claimant’s mother had not discussed details of her private life or those of her family in any interview. It was argued that permitting the respondent to publish the pictures will encourage, journalists in future to take and publish their pictures.

The English Court observed that David had a reasonable expectation of privacy. They used the test whether the photograph would have been taken had the child not been the progeny of a celebrity? The Court observed “if a child of parents who are not in the public eye could reasonably expect not to have photographs of him published in the media, so too should the child of a famous parent. In our opinion it is as least arguable that a child of ‘ordinary’ parents could reasonably expect that the press would not target him and publish photographs of him. The same is true of David, especially since on the alleged facts the photograph would not have been taken or published if he has not been the son of JK Rowling.”

4. Weller  v. Associates Newspapers Ltd.[29]

In this case the claimants were children of Paul Weller, a well- known musician who used to perform publicly. They claimed regarding an article published online by Associated Newspapers Limited. The article was titled “a family day out” and showed seven photographs of Paul Weller and the claimants. The photographs were taken by an unnamed photographer in Santa Monica, Los Angeles. The family was out shopping in the street and relaxing in a café. The daughter Dylan was aged 16 years at the time. The other two children were twins who were aged 10 months. The article was illustrated with seven photographs which showed the faces of Dylan and the twins. Mr Weller had claimed that while the paparazzi liked to cover him because of what he did for a living and he had given various interviews about himself and his family. He nonetheless avoided giving indepth interviews about his private life. He responded to questions rather than volunteering about his family life. He denied promoting his image as a devoted father. He had as always kept his children out of media limelight.

The Court held that neither the children nor the father had not put themselves out to the media and since the family was out to spend private time together, therefore the situation met the reasonable test of reasonable expectation of privacy. He court held in favour of the claimant. 

5. ETK v. News Group Newspapers Ltd.[30]

This case decided by the Supreme Court of Judicature at UK, marked an interesting extension of the notion protection of minor children and their privacy.

The facts were that an application was that that applicant was a married man working in the entertainment industry had illicit relations with one Ms. X a married lady in the entertainment industry. The wife of the applicant had learnt about the affair and after natural distress, the couple had decided to rebuild trust and work on their marriage particularly in interest of their minor children.  Subsequently the respondent news group leant about the affair and were about to publish the same. The applicant filed on short notice to restrain the News Group Newspapers from publishing or communicating or disclosing to any person any information concerning the facts of the case and the individuals involved and any information concerning the illicit relations between the applicant and Ms. X.  The Court held that the applicant had a reasonable expectation of privacy under Article 8 of the European Convention. The Court further pegged its decision on the following observations:

It is clear also that, when in a case such as this the court in deciding where the balance lies between the article 10 rights of the media and the Article 8 rights of those whose privacy would be invaded by publication, it should accord particular weight to the Article 8 rights of any children likely to be affected by the publication, if that would be likely to harm their interests.

The Court concluded with the observation:

“[H]ere there is no political edge to the publication. The organisation of the economic social and political life of the country, so crucial to democracy, is not enhanced by publication. The intellectual, artistic or personal development of members of society is not stunted by ignorance of the sexual frolics of figures known to the public….In my judgment the benefits to be achieved by publication in the interests of free speech are wholly outweighed by the harm that would be done through the interference with the rights to privacy of all those affected especially where the rights of children are in play.”

This is an important instance of determining the right to privacy of children in the setting of their peculiar family circumstances.

6. In the matter of an application by JR38 for Judicial Review[31]

In the matter of an application by JR38 for Judicial Review the issue arose regarding the disclosure of the photograph, as per police operating procedure, by the police of a juvenile delinquent, who had repeatedly participating in  rioting at different points of time. While the juvenile claimed the right to privacy under Article 8, the Court observed in deciding the issue the best interest of the minor should be kept in mind. However, the right to privacy is not absolute and will depending on the facts of the case. The act complained of shall not be determined on the mere test of legitimate expectation privacy but whether the actions violating the same were lawful, proportionate and in the public interest. In case where the social interest far outweighs the claim the privacy the same shall prevail[32].  The Court dismissed the case of the applicant on this ground.

Existing Statutory Framework For Protection of Minor Children

While the idea of privacy has been implicitly recognised by various statues, the following statutes are worth mentioning.

  1. Convention on the Rights of the Child, 1989[33]
  2. The Commissions for Protection of Child Rights Act, 2005[34]
  3. The Cable Television Networks (Regulation) Act, 1995[35]

The Convention on the Rights of the Child

Article 3 of The Convention on the Rights of a Child recognises that:

Article 3

  1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
  2. States parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
  3. States parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

Article 8 of the Convention on the Rights of the Child recognises that:

  1. The State parties shall undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
  2. Where a child is illegally deprived of some or all of the elements of his or her identity, State parties shall provide appropriate assistance and protection with a view to re-establishing speedily his or her identity.

The same has been adopted by India and incorporated under the Commission for Protection of Child Rights Act, 2005. The Commission for Protection of Child Rights Act, 2005 sets up an advisory body to advise on issues related to children. However, the Convention pre-dates the digital age and hence provides little material for incorporation in the current scenario. 

Sections 5 and 6 of the Cable Television Networks (Regulation) Act, 1995 prohibits transmission or re-transmission of programme in violation of the programme code and prohibits denigration of children.

The guidelines framed by the Press Council of India also provide guidelines not mentioning names, addresses etc. of children affected by HIV or AIDS or of child offenders under the Juvenile Justice Act, 2000. 

Interestingly none of the aforesaid  provide a clear cohesive code for prevention and regulation of the news/entertainment/television media to cater to the privacy of the minor child.

WHAT SHOULD BE PROTECTED

I would argue that a basic norm to inform all laws should be not merely the protection of the person of the minor but what should be protected is the person of the minor in his or her family and cultural setting, as family setting is intrinsic to the minor’s self image. It should include protection of his/her personal attributes such as identity, name, address, contact details, sexual habits and orientation, personal behavior etc.[36] This self image and sense of self evolves as minor grows from an infant, to a boy/girl, to a teenager  and to adulthood. Therefore, the nature of protection must depend on the facts of each case such as age, gender, social awareness, social norms, behaviour of the minor, possible danger to the minor, how the minor has been brought up, nature of activity he/she was involved in and the purpose of the intrusion, whether consent was taken from parents etc. This can be done without compromising on free speech and expression.

DIFFERENTIATING BETWEEN EVENT BASED REPORTING AND PERSON BASED REPORTING

Newspapers/websites/journalists covering events and personalities are often unable to distinguish the fine line between their self expression and the privacy of the subject. The pressure of releasing a story quickly, where quick decisions have to be made by the editors also requires journalists to be given the necessary latitude to make their decisions.

While guidelines do exist for journalist the same are generic in nature and insufficient to deal with the issue of privacy. There exists no separate detailed guidelines for reporting about minors. Further, these are in the nature of guidelines and are not enforceable before a court of law. The law of tort in India provides no precedent regarding minors.

Therefore, as regards news reports/studies (in print, television or websites) a convenient and practical tool or test to draw the laxman rekha between free expression and privacy is to distinguish between event based reporting and reporting about a person (a minor in this case) in news items/study.

Event based” reporting about child’s or other social issues such as malnutrition, condition of natal wards in government hospitals, disaster relief, refugees, movies, talent, sports event, shows etc. may contain the pictures of minors and their families and some details about the minor. However, the same should have a direct correlation of the event being reported about.

Further care can be taken not to report details about children that would specifically identify them and lead to their ostracisation or actual physical harm.

While an event based reporting covers primarily the event with the minor child as part of narration of the event. The same is not about the minor child but about the event. A person based report is primarily about minor child, about the actions of the minor child, his/her behavior, looks, speech, dress, habits, attitudes, etc. This is often seen in ‘news features’.

‘News features’ focus predominantly on a person e.g. a singer, a child actor, a child sportsperson, a child prodigy or children of celebrity etc. It may be safely assumed that the guardian/parent would look after the best interest of the child. Therefore such reporting must be done with express consent of the parent(s) and where the minor is capable of giving consent, with his consent too. Unless the parent consents to expose their child to the public, the privacy of the minor must be respected. Even self posted pictures of minor children may be reported about after consent from the parents.  Further, such consent may be taken on each event the minor is sought to be specifically covered. Further even in such features, care must be taken that the representation of minors does not offend goods tastes, they are not depicted in a sexualized manner, nothing should be reported regarding the private behavior and habits of the minor child without specific consent on these issues. The minor should not be attacked by innuendos or by maligning his family and culture or upbringing.

However, there may be cases where reporting about a minor may be important for society and may outweigh the need for protection of their privacy. For example in cases of children involved in heinous crimes or anti social behavior that causes clear breach of public peace or order. These can form the exception where the news media would be entitled to write about the antisocial behavior, name the minor or publish a photograph.

CONCLUSION

Children are the world’s most valuable resource and its best hope for the future[37]. It is therefore imperative that in an increasingly interconnected world throwing up new challenges of the digital age, we navigate our children to adulthood through safe waters.

  I would argue that there is an urgent need for the Commission on Children under the Commission for Protection of Child Rights Act, 2005 in consultation with the representative of the newspapers/media, Press Council of India to formulate a detail “Reporting Code for Reporting about Minor Children”. Parliament may also consider to formulate a law that incorporates them and provides clear code/rules and guidelines on reporting about minors. Since this issue throws challenging situations, the mechanism should have a flexible graded response system to any errant media reports. In case of severe  violation once the code is indisputably triggered the Government agencies must come to the protection of the minor and he/she and take action such as asking the media house to publish a prompt apology, prohibition from broadcasting/publishing, for a few days, censure, fines etc. The victim may also in addition have the right to approach court for relief in tort in fast track proceedings. A few pointers that can be considered while framing such law are:

        1. Everyone has a right to privacy. Privacy of the minor is in his/her best interest and cannot be disturbed except in event based reporting or with clear express or implied consent;
        2. The use of long lens photography to surreptiously take pictures of people in private places or situations without their consent for purposes of publication must be disallowed. This would include public spaces where there one conducts activity about which one has a reasonable expectation of privacy.
        3. Even in event based reporting care should be taken be taken that the representation of minors does not offend goods tastes, they are not depicted in a sexualized manner, or that the reporting does not expose them to social and physical risk;
        4. While taking pictures of the minor or asking for their comments, they should not be stalked, chased  and hounded;
        5. The publication of content posted by minors has the effect of amplifying a personal aspect (though may not be entirely private aspect) of the minor. This again should be done with express consent of the parent/guardian and minor. 
        6. The exception to the above are cases where there is a demonstrable public interest of political and economic consequence or the safety and security of the public is at risk or exposing a crime or serious misdemeanor and preventing the public from being mislead by someone.

Such guidelines/regulations will also lend clarity to various journalists writing about children.


*Graduate from the National Law School of India, University. He is an advocate and practising before the Supreme Court of India and Delhi High Court for the last 17 years.

[1] Mr. Nelson Mandela, 08.05.1995, Former President South Africa, http://www.mandela.gov.za/mandela_speeches/1995/950508_nmcf.htm

[2] For instances of reporting on minor children: https://www.ndtv.com/entertainment/shah-rukh-khans-daughter-suhanas-pool-pic-goes-viral-1758311; https://www.indiatoday.in/movies/celebrities/story/see-pic-shah-rukh-khans-daughter-suhana-in-a-bikini-along-with-abram-is-a-rage-on-the-internet-today-315139-2016-03-28;

[3] See https://indianexpress.com/article/india/this-august-290-children-died-at-gorakhpurs-brd-medical-college-says-official-4820659/ ; https://www.bbc.com/news/world-asia-india-43482471

[4] See  https://www.hindustantimes.com/world-news/16-million-children-affected-by-floods-in-india-nepal-and-bangladesh-unicef/story-kywbAL4cPj65IoAJ6i5WWJ.html

[5] See https://indianexpress.com/article/india/india-others/urban-children-living-in-slums-vulnerable-to-variety-of-risks-report/

[6] See https://www.hindustantimes.com/india-news/rape-has-no-religion-kashmiri-lawyer-fights-for-justice-for-kathua-girl/story-Q7wqnILZ0hh9LqUyPArPbJ.html

[7] Growing up in a connected world, UNICEF Office of Research – Innocenti, Florence, 2019.

[8] For instance of news feature on children please see https://www.hindustantimes.com/bollywood/16-bollywood-star-kids-who-rule-the-social-media/story-iBzcGhp8kXXEbSo9PrmtUP.html also see https://www.babygaga.com/15-hot-celeb-who-have-the-ugliest-kids/ ; see also https://www.indiatoday.in/movies/celebrities/story/sara-ali-khan-shares-old-pics-with-taimur-happiest-birthday-little-tim-tim-1629938-2019-12-20;

see also https://hindi.sakshi.com/national/2019/07/07/know-intresting-fact-about-rehan-vadra;

[9] See id.

[10]https://www.sciencedirect.com/science/article/abs/pii/S0191886916307930; https://www.abc.net.au/news/2017-07-13/trolls-understand-what-hurts-people-but-they-simply-dont-care/8701424 ; https://www.waynedenner.com/blog/online-trolling-and-the-effects-on-young-people/

[11] For a detailed study on benefits and challenges of Digital world globally for children please see Growing up in a connected world, UNICEF Office of Research – Innocenti, Florence, 2019. See also Cyberbullying among youngsters: profiles of bullies and Victims, Heidi Vandbosch, Katrien Van Cleemput, University of Antwerp http://nms.sagepub.com/cgi/content/abstract/11/8/1349 : See also Cyberbullying: Who are the Victims? A comparison of Victimization in Internet Chatrooms and Victimization in School, Catarina Katzer, Detlef Fetchenhaur and Frank Belschak Journal of Media Psychology 2009: Vol 21(1): 25-36 DOI 10.1027/1864-1105.21.1.25

[12] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 : 2017 SCC OnLine SC 996 at page 630

[13] Michael L. Rustad, Sanna Kulevska, “Reconceptualizing the right to be forgotten to enable transatlantic data flow”, (2015) 28 Harv JL & Tech 349.

[14] Id.

[15] 1952 SCR 597, 607     

[16] Kindly see right recognised in Unnikrishnan J.P. v. State of AP, (1993) 1 SCC 645 now encapsulated in Article 21-A of the Constitution.

[17].See M.C. Mehta v. Union of India, (2004) 12 SCC 118 

[18] The right to privacy was first recognised explicitly in Kharak Singh v. Union of India, (1964) 1 SCR 332 

[19] While the Supreme Court had recognised the right to privacy in R. Rajagopal v. State of T.N.  (1994) 4 SCC 632 and Mr ‘X’ v. Hospital ‘Z’, (1998) 8 SCC 296 , the recent judgement of the Constitutional Bench considers privacy based on current emergent issues including recent technological developments.

[20] (1978) 1 SCC 248

[21] K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1,  para 259.

[22] Ibid.

[23] (2017) 10 SCC 1  page 619

[24] K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1  at page 575.

[25] K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1  at p. 598

[26] Von Hannover v. Germany, Application No. 59320/00 delivered by European Court of Human Rights, Third Section on 24.06.2004.  https://hudoc.echr.coe.int/tur#{%22itemid%22:[%22001-61853%22]}

[27] [2004] 2 AC 457 : [2004] UKHL 22 

[28] Case No. A3/2007/2236 : [2008] EWCA Civ 446.

[29] [2015] EWCA Civ 1176.

[30] [2001] EWCA Civ 439.

[31] [2015]UKSC 42

[32] For other similar cases where public interest outweighed the right to privacy see In re S (FC) (a child) [2004] UKHL 47.

[33] Adopted and opened for signature ratification and accession by General Assembly resolution 44/25 of 20.11.1989. It was ratified by the Government of India on 11.12.1992. 

[34] Commissions for Protection of Child Rights Act, 2005 

[35] Cable Television Networks (Regulation) Act 1995   

[36] Also see further discussion on child rights in Livingstone, S., Carr, J. and Byrne, J. (2016). One in Three: Internet Governance and Children’s Rights. Innocenti Discussion Paper No.2016-01, UNICEF Office of Research, Florence.

[37] John Fitzgerald Kennedy, Former President, United States of America. –“Re: United States Committee for UNICEF July 25, 1963.” Papers of John F. Kennedy. Presidential Papers. White House Central Files. Chronological File. Series 1. President’s Outgoing Executive Correspondence, Box 11, Folder: “July 1963: 16-31,” JFKL. https://www.jfklibrary.org

 

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