Saving Private Peters from Private Robs

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Private Robs: “So you and Angelina… huh”
Private Peters: “It’s none of your business”
Private Robs: “Why? I just clicked your pictures with her having a happy meal”
Private Peters: “Ill sue for invasion of my privacy”
Private Robs: “HA HA HA HA” [Evil Mr. Burns Laugh] “GO AHEAD MAKE MY DAY”

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The advent of new technologies can best be termed as a phenomena of creative destruction. This is evidenced in how the Internet and digital media combine to challenge the established laws. Sometimes however, laws do not exist and the vacuum is filled with anarchy. This is the situation which private individuals face, when they seek to enforce privacy rights against other private individuals.

Though, the writ jurisdiction of a High court can be invoked under Art. 226 (writ jurisdiction of the High Court) against private persons, however, it does seem to be judicial overreach, when private persons are included within Art. 12 (state and instrumentalities of state), for the purposes of, holding them accountable for violation of fundamental rights. So effectively no, right to privacy exists against only against state, since it has been reached by a creative interpretation of Art. 21 (right to life). Now keeping all things constant, the constitutional right to privacy is not available against private individuals, ergo Private Rob is able to deprive Private Peters (and Angelina) of his privacy.

What may be of interest here are the draft amendments which are contained within the Information Technology Amendment Bill, 2006. Schedule II of the Bill which seeks to amend the Indian Penal Code inserts section 502A, and reads as, “Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with simple imprisonment for a term which may extend to two years or with fine not exceeding two lakh rupees, or with both.” In case you are wondering what is a private area, the explanation to the section defines it as, “means the naked or undergarment clad genitals, pubic area, buttocks or female breast” OUCH!!! Pale shelter from the plethora of privacy rights… though some shelter at least.

At the outset I would like to state that a limited right to privacy does exist under the law of torts… though it’s efficacy has not been tested as of yet. It seems in the absence of legislation, all that Private Peter can do what Shammi Kapoor did for years, writhe and twist… while Private Rob can do what Shammi Kapoor did for years.. YAHOO!

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