Republished from Bar and Bench
Video clippings allegedly featuring Senior Advocate and former Congress Spokesperson, Abhishek Manu Singhvi are all over the internet. Although Singhvi was quick in securing an ex parte injunction from the Delhi High Court against three media houses who were in possession of the CD, the damage had already been done with the video going viral on the Internet.
The contents of the CD were uploaded on various websites including YouTube and were thus “published” irrespective of the Court’s injunction. This may have been one of the factors, which eventually led to Singhvi’s resignation from the post of Congress Spokesperson as well as head of the parliamentary committee on law and justice.
This controversy has stirred a nation-wide debate on issues such as regulation of social media by imposing strict curbs on it and the right to privacy of public figures. There are some who are suspicious of any governmental move to regulate social media whereas others have a different point of view.
The Indian Government has already been asking Internet companies like Google, Facebook, Microsoft to create a framework to prescreen the data before it goes up on the website. This issue has already reached the Delhi High Court, where the Court had threatened to censor the web if a way to pre-moderate content cannot be found.
Since the CD controversy broke out, Justice Markandey Katju, Chairman of Press Council of India has been pressing for the regulation of social media and forming a committee to place restrictions on the social media which he said was “often acting in an arbitrary and irresponsible” way.
Bar & Bench spoke to Apar Gupta, Partner at Advani & Co and Pranesh Prakash of Centre of Internet and Society to get an expert view on various aspects of this controversy.
Bar & Bench: The Delhi High Court gave an injunction restricting media houses from publishing the contents of the CD. However, the injunction could not prevent sites such as Youtube from broadcasting the clippings. Is there a legal recourse by which the privacy of public figures in such matters can be maintained? Also, is there any other legal recourse available to stop the publication on the internet?
Apar Gupta: Before saying anything on this, let me preface all my comments by saying it is incredibly unfortunate that people have posted the clip online. It is terribly invasive of any person’s privacy. At the same time, I would like to differentiate talking and discussing about the clip, from posting a copy of it online. These are two different acts. Also, since a lot of my responses contain my personal opinions, I am not making these comments in any professional capacity.
Coming to the injunction, the Delhi High Court granted an interim injunction against the driver who captured and morphed the footage (I omit “allegedly” or “purportedly” since the driver has subsequently admitted to it in his written statement and the suit has been decreed in such terms as per the Order dated 19.04.2012), and some television news broadcasters. The interim injunction was not a John Doe injunction and would not have been applicable against any other parties except the ones, which were named as defendants in the suit. Hence, if you view it strictly as per the cross hairs of the law, social media did not violate any high court order.
Now let us assume, even if such a John Doe Order was passed which would extend to websites, which rely on user-generated content. Such an order could only extend to such websites taking down content on notification. This is the greatest extent to which such an order can be legally permissible given the scheme of Section 79 of the IT Act which contemplates a post notification mechanism. As per press reports, this post-notification takedown was already implemented by websites such as YouTube, however end users uploaded the videos repeatedly. YouTube is not to blame here, the users are.
Naturally this highlights the dangers of social media. However, it must be put into context. Even if uploaded every minute, the clip is only the odd half hour of the 60 hours of video, which is uploaded every minute onto YouTube. In a cost benefit analysis, having any system of pre-screening or filtering of content would be disastrous for free speech online.
Pranesh Prakash: From what I am given to understand, the injunction was targeted at Aaj Tak, Headlines Today and the India Today Group, and prevented them from disseminating the contents of the CD. I wouldn’t believe that "sites such as YouTube" are broadcasting. Rather, sites such as YouTube are being used to broadcast. This distinction, which is not important when it comes to television, is critical when it comes to user-uploaded content and user-generated content.
Given that there are thousands of video-sharing websites, there is no way of ensuring that all of them comply with an Indian court order. (There is no way that a court ruling on a photo would prohibit people from photocopying that photo, for instance). Fortunately, that shouldn't be required to remove a video from the largest video sites. A team of one or two people could, for instance, trawl through the top ten video sharing websites and report all instances of the video as being abusive of.
Bar & Bench: Do public figures have a right to privacy? Can privacy even exist in the age of the internet? Do we need stricter privacy laws?
Apar Gupta: Yes, courts have consistently held that public figures have a right to privacy. In their case, this right to privacy is more conditioned with a general limitation that their public acts do not receive protection. Also this case does highlight the need for a privacy law, however the legal ground which has been urged here is not of privacy but of defamation. If privacy would have been claimed, Mr Singhvi would have been in a unique catch-22 where to claim privacy he would have to admit the contents of the clip (if not the clip in its entirety) was correct. Hence, defamation is an easier ground where he can claim the clip was morphed and hence untrue. Having said this, I strongly feel that India needs a privacy statute and regulations to limit the power of the government and corporations to gather and utilise data about us.
Pranesh Prakash: Yes, public figures should have a right to privacy. There is much in the personal lives of public figures that are not of public interest. Thus, in instances where public interest and privacy does not clash, even public figures ought to have a reasonable expectation of privacy. Needless to say, what is and is not in the public interest is likely to vary depending on circumstances.
That having been said, I believe that privacy should be inversely proportional to power. Yes, privacy can exist in this age of the Internet. Many digital technologies enhance privacy (Tor, OpenPGP, other encryption technologies, etc), at the same time that services like Facebook and Google+ undermine them.
Bar & Bench: Arun Jaitley made an argument that Court injunctions should not be a gag on media. Your thoughts.
Apar Gupta: I completely agree with Mr Jaitley. He has made all the right points this Indian Express article. Pre-publication injunctions should be rarely granted and should be taken as an exceptional and extraordinary remedy. Courts may need to evolve judicial standards for the grant of such injunctions beyond, the general dictates of Order 39, Rule 1 and 2 of the Code of Civil Procedure. Often such interim injunctions when granted take time and considerable effort to be reversed. For instance, in the case of Kushwant Singh v Maneka Gandhi it took more than 9 years for an injunction to be reversed. More recently in terms of books, a chapter on Arindham Chaudhari in Siddhrath Deb’s book, The Beautiful and the Damned has been injuncted by a court in Silchar. To the best of my knowledge the transfer petition filed by him and Caravan Magazine is till pending in the Supreme Court, though the proceedings have been stayed in the Silchar court. Coming to how injunctions effect the web, take the case of E-2 Labs v. Zone-H and Nirmal Baba v. Hubpages which I have detailed on my blog.
Pranesh Prakash: Arun Jaitley's point was that in cases of private grievance, such as defamation, a court should refrain from granting a pre-publication injunction, and in this I completely agree with Mr Jaitley.
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