Indian Law on Portrait Photography

“You can protect your liberties in this world only by protecting the other man’s
freedom; you can be free only if I am free”.-Clarence Darrow

Today’s post does not strictly fall under the purview of the subject covered by Cinema Vakeel usually. It rather focusses on a lacunae in law exposed by certain activities revolving around some well known members of the film fraternity. The subject matter at hand is highly significant. Most importantly I need a break to recuperate from desolation that accompanies long term unemployment to bounce back with sufficient vigor to address relevant issues with the kind of dedication they deserve. Therefore, today I am reposting an article written by me that first appeared on the website of Journal of legal methodology, policy and governance on 26th January 2019.

What compelled me to pen down my thoughts on this issue are two videos uploaded on Twitter that went viral and ignited public debate on privacy a couple of years back. One of the videos consisted of actress Anushka Sharma berating a youngster for throwing garbage on the street and the video was made by her husband cricketer Virat Kohli. Although it can be argued that the actress could have been politer while dealing with the youngster despite being an ambassador of Swach Bharat Abhiyan. The other video was made by a fan of actress Deepika Padukone and actor Ranvir Singh while they were vacationing in Disneyland without their permission. The common link between these videos is that of violating the privacy of the subject. Sadly enough those who made the videos still haven’t realized their fault and on top of that there have been others who have justified them in the comment section.

The highly celebrated judgment delivered in Justice K.S. Puttaswamy v Union of India and Others1 delivered on 24th August 2017 that held that right to privacy flows from right to life enshrined under Article 21, came down heavily on government actions that violate privacy of citizens but public consciousness as an individual on respecting other’s right to privacy is still extremely low. It would be interesting to note here that it was a critique of a newspaper article by Samuel Warren and Louis Brandeis in US which was partly prompted by the intrusive coverage of a certain wedding and partly inspired by the publishing of intimate details of celebrities in newspapers that gave birth to the much celebrated concept of privacy. It was written with deep anguish that photographers, newspapers and advancing technology pose immediate threat to privacy.2In today’s time and age, armed with technology each one of us has the ability to capture moments through photographs and visual recordings. Unfortunately in the same country that gave birth to the concept of privacy, it has been held in Hoepker v. Kruger3that there’s no need to seek permission from the subject, if the

1WP (C) 494 of 2012

2Samuel Warren and Louis Brandeis, The Right to Privacy, Harvard Law Review, Vol. 4, No. 5. (15th December 1890), pp. 193-220.

3200 F.Supp.2d 340 (S.D.N.Y. 2002)

photographer/ videographer is in a public place that he/she has an authority and permission to be in.4

Presently in India section 66E of the Information Technology Act 2000 only penalizes capturing and publishing of private parts of a person without his/her permission in recognition of protection of privacy of a person. There is no legal provision that makes it mandatory to obtain consent of the subject before taking a picture of making a video. Even the Norms of Journalistic Conduct 2010 and Code of Ethics and Broadcasting Standards that do not have any legal sanction provide that invasion of privacy of the common man can be justified based on public interest.5

The concept of portrait rights that have evolved in Japan through precedents over the years would be extremely to discuss in this context as both India and Japan being Asian share certain cultural commonalities. For instance the strong focus on the community in Japan can be understood through the famous saying that means one should ‘devote oneself to the public, sacrificing one’s private realm’(messhi-hoko).6In 1967, the Supreme Court held that one has a freedom to not be photographed without his or her permission as a freedom of private life.7 As per the precedents, the right not to be photographed or filmed comprises of portrait rights and is a derivative of Article 13 of the Constitution which has been reproduced as follows:-

“All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.”

In am2005 judgment it was held that focusing on a particular passer-by and taking a picture of her figure including her face is considerably burdensome to her. The judgment also clarified that focusing on a certain person should be distinguished from photographing landscapes that happen to include people or photographing members of the general public in

4Street Photography and The Law, Last accessed on 14th August 2018 on https://everydayaperture.com/law/

5Sonal Makhija, Privacy and Media law, published on 19th July 2011 on the website of The Centre for Internet and Society last accessed on 10th August 2018 on https://cis-india.org/internet-governance/front- page/blog/privacy/privacy-media-law

6 Hiroshi Miyashita, The evolving concept of data privacy in Japan, International Data Privacy Law, Vol.1 Issue.4 (9th September 2011), pp.229-238, Last accessed on 14th August 2018 on https://academic.oup.com/idpl/article/1/4/229/731520

7Judgment of Supreme Court, 24 December 1967, Keishu Vol. 23 No. 12, p. 1625

a group. Theoretically, violation of someone’s right to privacy or their portrait rights occurs at the very moment that their public behavior is recorded, regardless of what is done after that act.8It would be extremely relevant for us to take note of a Supreme Court judgment delivered in 2005, which held that pictures clicked of the accused in the court with handcuffs and tied rope were illegal because the permission of the court had not been taken. Factors taken into consideration were social status of the subject, content of the activities, location, the purpose of the photographer, the manner in which pictures were taken and the necessity of taking pictures.9

Japan can very much act as an inspiration for India to come up with a legislation that makes consent of the subject mandatory before clicking pictures and making videos. It would go a long way in protecting the identity and location of the subject as well as prevent unauthorized use and misuse of the picture/video. It would also protect both common man as well as public figures from being harassed by the media unnecessarily. Presently we are completely defenseless against the unfettered scrutiny of the media. Most importantly it would emphasize on the point that India as a nation not only keeps a check on government excesses but also understands that rights and duties go hand in hand and the common man is no exception to this rule.

8 Takashi Ito, When recording public places in Japan, privacy and portrait rights come into play, The Japan Times, 22nd January 2017, Last accessed on 14th August 2018 on https://www.japantimes.co.jp/community/2017/01/22/how-tos/recording-public-places-japan-privacy- portrait-rights-come-play/#.W3KSEdIzbIU

9 KyohoHijikata, Its okay to film people in public in Japan, if the conditions justify it, The Japan Times, 25th

January 2015, Last accessed on 14th August 2018 on https://www.japantimes.co.jp/community/2015/01/25/how-tos/its-ok-to-film-people-in-public-in-japan-if- the- conditions-justify-it/#.W3KVfdIzbIU

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