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Radia Tapes, Media and Law of Privacy

Public interest under challenge from vested interests

-Professor Madabhushi Sridhar,

CoordinatorCenterfor Media Law & Policy,

NALSAR University of Law, Hyderabad

When more than 40 crore people living below poverty line do not afford or access or care to seek right to life in Supreme Court of India, Mr. Ratan Tata, $73 bn worth Tata group chief, is seeking to enforce his right to life! He complains that his right to privacy is being violated. He is asking apex court to direct an iron veil of secrecy around Radia Tapes to stop from further publication. It is his privacy! This nation need not know it! It is not about his private conversation with his wife or other family members. His lobbyist-in-chief Mrs. Niira Radia’s  talk with famous journalists, news anchors, MPs, leaders, bureaucrats about politics, business, leadership, coalition, cabinet berths, portfolios, 2G spectrum, Raja, DMK, Congress and so on is private affair according to him. Every bit of it is a private corporate matter or privileged communication, and thus part of his ‘private life’ & right to life. If these secrets are not kept secret, it is difficult for big to survive. It spells end of life. The apex court has to protect that right to life by securing these as secrets!

It is nation’s right to know, as integral part of Articles 21 & 19, which the Supreme Court upheld several times.. If transcripts of 5,851 intercepts do not see the light of the day, that day will be the end of life for rule of law.When three Estates and the Fourth was also figured in the revealing tapes, it was the Fifth Estate, including netizen with the web technology that really exercised freedom of expression and kept the issue in lime light to serve the right to know of India.

After due authorization from the Home Ministry the Indian Income Tax department tapped Radia's phone lines for 300 days in 2008-2009 as part of their investigations into possible money laundering, restricted financial practices, and tax evasion. The tapes revealed that Radia had frequent conversations with politicians, A. Raja, former Telecommunication and IT Minister, Kanimozhi, Rajya Sabha MP, Journalists, Barkha Dutt, Group editor, English news, NDTV, M.K. Venu, senior business journalist, Prabhu Chawla, editor of India Today magazine, Rajdeep Sardesai, Shankar Aiyar, then with India Today Group, Vir Sanghvi, HT advisory editorial director, Industry Heads, Ratan Tata, Tata Group, Tarun Das, former CII head, (Mention of) Mukesh Ambani, Reliance Industries, and Ranjan Bhattacharya  (foster son-in-law of former prime minister Atal Behari Vajpayee), Suhel Seth, management guru and columnist.

In one of the tapes, an unidentified interlocutor asks Ms Radia, whose clients include both Mr. Tata and Mukesh Ambani, why “you people [i.e. the Mukesh Ambani group] are supporting [Raja] like anything ... when the younger brother [Anil Ambani] is the biggest beneficiary of the so called spectrum allocation”. “Issue bahut complex hai,” Ms Radia replies. “ Mere client Tatas bhi beneficiary rahein hain (my client, the Tatas, have also been a beneficiary).” [1]

There was another crucial conversation between Ratnam, Chartered Accountant of Tamil Nadu Chief Minister M. Karunanidhi’s third wife Rajathiammal, Rajathiammal herself and Niira Radia, on June 13, 2010, more than three weeks after the UPA II Cabinet had been formed and A.Raja had been successfully planted as the Telecom Minister and Dayanidhi Maran, was kept out, as desired by Ratan Tata and also Mukesh Ambani, as conversations of Radia with others clearly indicated.[2]

It is also reported that Tata through Voltas (a Tata group organization) is in touch with Niira Radia and Ratnam, CA of (Rajathi)Ammal, wife of (Chief Minister) M.Karunanidhi,. They are apparently going to construct a building in Chennai on a land controlled by “TRIL” (Tata Realty and Infrastructure ltd.) with the Karunanidhi family as a payoff to DMK for keeping Maran out of Telecom (ministry).

Privacy for whom?

Privacy is a right for private persons and also for private affairs of public persons. It is illegal, illogical and unreasonable for public persons to claim privacy for their public activities such as governance, policy making, industry, corporation, formation of ministry and politics. Privacy should not be mistaken with secret business operations causing harm to public institutions. Once a crime is committed, the suspicious persons need to be interrogated or investigated. Those suspected or involved cannot claim privacy and ask for protection of their identity, criminal secrets as privacy as part of right to life. Secret lobbying behind 2G spectrum corruption has to be probed into. Looking into authorized recorded tapes is a required and legitimate process and if it reveals the conversation of big people with political lobbyists, which insist on somebody to be made Telcom minister or not to be made. If these tapes are blocked, the rich and powerful brokers would get emboldened to adjust the deals to escape from the long hands of law. Right to privacy is not secrecy or facility for hiding unethical deals and cornering state wealth through manipulations. If criminals or suspects seek this right no crime could be probed anywhere in the world.

If Tata, Burkha Dutt, Vir Singhvi and others who figured in Radia tapes and Radia herself feel defamed by these revelations, they can test their right to reputation by suing publishers. Certainly they do not have Article 21 protection here. That right is available for victims of crime but not to criminals or their helpers.

Privacy: An Undefined Right

Privacy is an undefined right implied in right to life in general. It means the right to be let alone and its object is to protect inviolate personality. It can be regarded as a fundamental human right as the presumption that individuals should have an area of autonomous development, interaction and liberty, a “private sphere” with or without interaction with others and free from State intervention and free from excessive unsolicited intervention by other uninvited individuals.[3]

A professor team studied interface between public interest, media and privacy for BBC and other State Commissions of UK[4]. That report concluded with suggestion of public interest exception to privacy: The general public put great value and importance on media information or coverage which promotes the general good, for the well-being of all. These include the identification of wrongdoing and of the wrongdoers themselves, with the media acting as guardians of shared moral and social norms. Under these conditions, and with suitable regard to the relative severity of the individual case, individuals’ privacy can be intruded upon – in extreme cases should be – in the name of the greater good.[5]

Like several other rights it is also not absolute as it can be restricted on the basis of compelling public interest.[6]

After privatization and globalization, there is an increased need for right to know the activities of corporate giants in clandestine association with corrupt rulers and unscrupulous bureaucrats. Time V. Hill,[7]U. S.Supreme Court said: “The constitutional guarantees of freedom of speech in the press, not for the benefit of the press, but in order to benefit the entire nation. This is an interesting case where private individual’s right to privacy was in conflict with freedom of press. The Life magazine published an article about the ordeal of a family trapped in their own house by escaped convicts. Life claimed that the play described events that had actually happened to the Hill family, which had in fact been held hostage several years before by escaped prisoners. The article was inaccurate in several nondefamatory but nevertheless deeply disturbing respects. Members of the Hill family sued for invasion of privacy under a New York statute. 

The Supreme Court's opinion in Hill built upon the 1964 decision of New York Times Co. v. Sullivan, in which the Court had held that plaintiffs who were public officials could not recover damages for defamation unless they could demonstrate that the defamation had been published with actual malice, “that is, with knowledge that it was false or with reckless disregard of whether it was false or not” (pp. 279–280). In Time, Inc. v. Hill the Court extended the application of the actual malice rule to actions alleging that a plaintiff's privacy had been invaded by “false reports of matters of public interest” (p. 388).

Tata is correct in one aspect – there shall not be any unwarranted invasion of privacy.  However, it is doubted and disputed whether his privacy was invaded or is it warranted. Unwarranted invasion of privacy is the exception to right to information as per section 8 of Right to Information Act, 2005,  that means a required or warranted invasion is welcome to enforce right to know. Supreme Court judges' assets case, the Delhi High Court held that personal information related to the performance of the public duties by public officials does not receive the same level of protection as that of private individuals who do not perform such duties[8].

In Peoples Union for Civil Liberties (PUCL) v. Union of India,[9] P. Venkatarama Reddy J. observed: By calling upon the contesting candidates to disclose the assets and liabilities of his/her spouse, the fundamental right to information of a voter citizen is thereby promoted, when there is a competition between the right to privacy of an individual and the right to information of the citizens, the former right has to be subordinated to the latter right as it serves larger public interest.

If a privacy interest in nondisclosure exists, the public interest in disclosure, if any, is weighed against that privacy interest.[10] Even if the interest in protecting privacy is substantial, the importance of the public interest must still be considered because, unless the invasion of privacy is clearly unwarranted, the public interest in disclosure must prevail.[11]

Given that freedom of information laws have at their core the purpose of disclosure, exemptions are strictly construed, and it has been said that the public right to know should prevail unless disclosure would publicize intimate details of a highly personal nature.[12] The Radia tapes, so far published revealed public issue, but not an iota of personal life of claimant Tata. There is neither ‘personal privacy’ nor ‘unwarranted invasion’.

Nixon’s Privacy?

Like Ratan Tata, Nixon also sought to protect his tapes. However, Tata should know that Nixon failed. Former US President Richard Nixon challenged the constitutionality of the Presidential Recordings and Materials Preservation Act, which provided for the historical archiving of and public access to recordings and materials made by the President during his tenure in public office. In addressing Nixon's claim that providing public access to his White House recordings and papers would violate his right to privacy, the Court recognized and reaffirmed that “one element of privacy had been characterized as the ‘individual interest in avoiding disclosure of personal matters....”[13]  The Court continued, recognizing that “public officials, including the President, are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity.”[14]. The Court concluded that the “tape recordings made in the Presidential offices primarily relate to the conduct and business of the Presidency,” and that “the overwhelming bulk of the [records at issue] pertain, not to appellant's private communications, but to the official conduct of the Presidency.”[15] Therefore, the Court concluded “only a minute portion of the materials implicates appellant's privacy interests,” precisely because “of his lack of any expectation of privacy in the overwhelming majority of the materials” - those that reflected on his official conduct.[16]

Unless information in the government's hands is non-public and of a “highly personal and sensitive” nature, such that its public disclosure “would be offensive and objectionable to a reasonable person,” the disclosure of such information cannot, as a matter of law, violate an individual's right to privacy. See Flanagan,[17] (applying the first prong of Martinelli to internal affairs file and concluding that “data in files ‘which is not of a highly personal or sensitive nature may not fall within the zone of confidentiality”) The US Supreme Court held that the evidence obtained by wire tapping was admissible against petitioners[18].

With these public interest exceptions controlling the right of privacy, which is yet take a firm shape, it is doubtful as to entitlement of Tata to block out the tale telling tapped tapes vis-à-vis their disclosure in public interest.

Legal principles of disclosure

From various jurisdictions and judicial decisions, following principles can be inferred.

Telephone tapping is held constitutional if ordered according to a prescribed procedure. (SC judgment in PUCL Case) Information obtained by authorized telephone tapping is not illegal information. If such information discloses clues and evidence of a crime or scandal, they have to be pursued. (Investigation in public interest to protect public property)

Right to privacy is available against the disclosure of information about private or personal life of the public or private person. Protection under privacy cannot be extended to criminal activities, conspiracies and attempts to manipulate political and governance related policies. Disclosure of Public information in the hands of Government is matter of state duty and right of citizen. (Right to know as part of right to life and Right to Information Act, 2005)

The protection for private information from disclosure is not available if there is overwhelming public interest in disclosure. Overweighing public interest in non-disclosure should be proved for not considering public interest in disclosure. In such conflicts privacy is not prime concern. If a privacy interest in nondisclosure exists, the public interest in disclosure, if any, is weighed against the privacy interest.

Unless information in the government's hands is non-public and of a “highly personal and sensitive” nature, such that its public disclosure “would be offensive and objectionable to a reasonable person,” the disclosure of such information cannot, as a matter of law, violate an individual's right to privacy.  Even if the interest in protecting privacy is substantial, the importance of the public interest must still be considered because, unless the invasion of privacy is clearly unwarranted, the public interest in disclosure must prevail.

Given that freedom of information laws (US) have at their core the purpose of disclosure, exemptions are strictly construed, and it has been said that the public right to know should prevail unless disclosure would publicize intimate details of a highly personal nature[19]. The courts have laid down no definitive rules as to what constitutes "an unwarranted invasion of personal privacy" within the meaning of exemption 7(C) of the Freedom of Information Act (FOIA)

The doctrine laid down in the Olmstead[20]case is that since wire tapping does not violate the Constitution, evidence so obtained is admissible under the common law of evidence no matter how illegally obtained.

Facts against Big and Famous

1. Telephone tapping has been done after due authorization. The IT department or any other authority is not allegedly involved in disclosure or leakage. It is not known as to who copied and leaked the tapped phone conversations. Even if cause is negligence, it has to be proved. If proved, claimants can get damages. But its publication cannot be blocked on the grounds of apprehension of invasion of privacy.
2. Publication of Radia tapes not aimed at any individual industrialists or intended to invade privacy of newspersons or politicians. It is a revelation that some bigwigs including them were referred to and heard in these conservations.
3. Under no stretch of imagination the issues discussed or sought were not about personal or private or family matters of individuals involved in conversations. They are public matters, public activities such as coalition politics, cabinet portfolio allocations, distribution of public wealth (2g spectrum, or natural gas in Krishna Godavari Basin) running to the tune of lakhs of crores of rupees which belong to sovereign people at large.
4. Though third wife, son, daughter and other relatives of DMK President are referred, it is not private family affair but about national coalition. It is unfortunate that we have to discuss families to know about politics in this country.
5. More over the whole issue is about the biggest scandal wherein corrupt motives dominate over collective responsibility of coalition cabinet. Prime Minister appeals or suggests to junior minister Raja and when the later simply ignores and rejects it, the PM leaves it to the fate of Indians and continues to rule while that decision of junior minister ruins this country.
6. Such issues forming part of tapes of tapped phones of big public persons are substantial issues of governance pertaining to rule of law and the Constitution that has been desecrated and violated with all impunity by the cabinet, industrialists including petitioner Tata, a section of Media bearing big names willingly becoming tools (a disgrace to Fourth Estate in fact) in the hands of a professional lobbyist working in the garb of PR official (a shame to profession of public relations indeed).
7. This information in the government's hands is public and not of a “highly personal and sensitive” nature, such that its public disclosure “would be offensive and objectionable to a reasonable person,” the disclosure of such information cannot, as a matter of law, violate an individual's right to privacy.
8. If the conversations leads to find that ultimately some bigwigs were benefited at the cost of this nation, it will be treachery of nation which is not defined as a crime in Indian Penal Code, as authors of IPC 150 years ago failed to visualize emerging of great industrialists planning to grab national wealth through lobbying.
9. Even if we assume for a moment that privacy of Tata is invaded, (which never happened) that invasion was committed by Niira Radia and others who willingly served interests of these industrialists rather than the nation, a shame again. Hence Tata has to try whether he has a cause of action against them and certainly not against the highly inactive government which does not even know what is happening even after CAG reported the serious proportion of gigantic scam.
10. Assuming for a moment that his privacy is invaded (which did not happen) its disclosure is highly warranted in public interest.  
11. It is a fit case where nation has a right to know other unrevealed tapes of tapped phones to go to the roots of 2G scam, KG Scam etc. The people of this Nation has every authority to demand its representative government to continue to tap all these corporate or industrialists  who are targeting national wealth under ground (KG) and in the space above (2G), and to catch dacoits of gas and spectrum and produce them alive before the Sovereign “We the people..”.
12. More important is that certain conversations reveal that they have scant regard for higher courts and confident of securing any favourable judicial process or order. This is in fact the contempt of court, and this is where power to punish that contempt need to be used. It is another aspect which disprove the claim that what was being discussed was not privacy but contempt of court.
13. The clues and evidence thus obtained by authorized tapping of phones could be used and adduced as admissible evidence of guilty in these scams.
14. It is high time that people centric media, other than those high profile persons serving Radia and her clients, to engage in string operations to catch hold of dacoits of national wealth since the law can support admission of evidence obtained by illegal tapping also. (See significant decisions of US Supreme Court above).

Sent to the hoot on 6^th dec 2010.