[Reader-list] RE: reader-list Digest, Vol 28, Issue 29

Thu Nov 24 16:53:52 IST 2005

Now this amendment seems like a loophole that will cause problems for those
of us who love photography. What if I wish to click a picture of the flowing
Ganges and happened to also include inadvertently a few devotees dipping in
the river, without meaning to infringe on their privacy (since they were
anyway in public view and happened to fall in the camera's view)? Would I be
guilty as per the new law? This was just an instance I cited, there can be
hazaar such instances.  I guess no more photographing the public in that
case for u never know whose right u may end up violating! 

Regards,
Mamta

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Today's Topics:

   1. Re: 'Pratyaksh': Become a sting journo in 3 months (Shivam)

----------------------------------------------------------------------

Message: 1
Date: Wed, 23 Nov 2005 21:04:52 +0530
From: Shivam <shivam at zestgroups.net>
Subject: Re: [Reader-list] 'Pratyaksh': Become a sting journo in 3
	months
To: Vivek Narayanan <vivek at sarai.net>
Cc: reader-list at sarai.net
Message-ID:
	<fd72ba1a0511230734u5aa7611y32ee7ffcdb079857 at mail.gmail.com>
Content-Type: text/plain; charset="ISO-8859-1"

Don't worry Vivek, politicians are doing their best to quietly 'ban'
sting operations this winter:

Now 'Privacy' gets IT definition

K YATISH RAJAWAT
TIMES NEWS NETWORK[ FRIDAY, AUGUST 26, 2005 12:58:16 AM]
MUMBAI: http://economictimes.indiatimes.com/articleshow/1211133.cms

Shakti Kapoor should have waited for the amendment to the Information
Technology Act to become law, before allegedly making passes at journalists
on a sting operation . He may then have been able to sue TV channels for
violating his right to privacy.

One consequence of the proposed amendments may be that sting operations will
become difficult. On the positive side, sleazy hotels recording unsuspecting
couples in intimate moments will face a stronger deterrent if the amendments
are approved by the Parliament.

The amendments to the IT Act, which have been submitted to the law ministry
for approval, address issues never explored before in Indian legal history.
The issues of privacy, including the definition of what constitutes a
private moment and which are the private parts of a human body, have all
been dealt with in the version of the Act submitted to the law ministry.

According to legal experts, there is strict legislation governing privacy in
all developed countries, but this is the first time these issues have been
addressed in India. The law on privacy in India, as it stands today, is
limited to the right enshrined under Article 21 of the Constitution and case
law on the subject. However, like other fundamental rights, it is not
absolute, and is subject to reasonable restrictions imposed by the state.

The proposed amendment adds a paragraph to the IT Act which states, "Whoever
intentionally captures or broadcasts an image of an individual without
consent, and knowingly does so under circumstances violating the privacy of
that individual, shall be held liable." This is the first time that a right
to privacy has so expressly found its way into the statute books in India.

Vivek Kathpalia, lawyer with Nishith Desai Associates, says, "Section
72 (3) of the draft of the IT Act, once finalised and brought onto the
statute books, will not only help in tackling this particular type of
invasion of privacy, but will help the courts in reaching broader
interpretations on privacy in general as the case law build up on the
subject." According to Akil Hirani of legal firm Majmudar & Co, the wording
has loopholes. "The repetition of 'intention' and 'knowingly'
dilutes this statute as criminal intent should be reason enough for
prosecution."

The Act also recommends a compensation of Rs 25 lakh to the person whose
privacy has been infringed. The offender can also be jailed for one year
with a fine of Rs 2 lakh. This means that even television channels which
carry images of MMS clips can be held liable even though they may not have
originally captured it.

'Private area' has also been defined in the Act in detail to prevent any
misinterpretation. But according to lawyers here, while defining this in
detail narrows its misuse, the impact of the legislation is reduced.
"Infringement of privacy may not just involve images of a person disrobed or
their private parts.

Even the law on obscenity does not define privacy, but leaves it to
interpretation to capture it in entirety as it may vary from person to
person and may even be affected by religious leanings," Akil Hirani, says.

Some lawyers feel that by defining the private parts and infringement of
privacy, the purpose of the legislation has been lost. "For instance, acts
like sexual intercourse with the private parts covered may destroy
somebody's privacy, but are not covered by the Act,"
lawyers feel.

Violation of privacy has been much more widely defined as "circumstances in
which a reasonable person would believe he or she could disrobe in privacy
without being concerned that an image or a private area of the individual is
being captured." Some lawyers feel that the Act has limited the definition
of privacy by limiting it to just disrobing.

The definition also covers public places. It says, "Circumstances in which a
reasonable person would believe that a private area of the individual would
not be visible to the public, regardless of whether that person is in a
public or a private place."

On the issue of child pornography, which has again not been expressly
covered under the Indian statute, the Act takes a fairly conservative view.
For the purpose of child pornography, the Act defines it as material that
features a child engaged in sexually explicit conduct.
According to lawyers, famous cases in the West like those involving Michael
Jackson's have shown that it need not be "sexually explicit conduct".

On 11/23/05, Vivek Narayanan <vivek at sarai.net> wrote:
> The new money-spinning motto seems to be, "Everybody must get stung".
> --V.
>
>
> 'Pratyaksh' on sting operations
>
> (Monday, Nov 21, 2005 - 06:00 pm)
> Televisionpoint.com Team
> http://www.televisionpoint.com/news/newsfullstory.php?id=1132578476

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