Focus on Rights

Where does the right to privacy end?
Modern media law reinforces the observance of particular fundamentals in relation to the right to privacy. Foremost among these is the caution that all persons, even public figures, have a certain inviolable area of private space into which media trespass cannot be condoned.

However, the question as to what exactly constitutes this area of private space remains elusive. And the long winded explanation by the Justice Committee on Privacy and the Law in the United Kingdom, that privacy is "that area of a man's life which, in any given circumstances, a reasonable man with an understanding of the legitimate needs of the community would think it wrong to invade", (besides being politically incorrect in terms of its un-gendered language), only provides half the answer.

This question is further aggravated by the danger that in a particular situation, a judgement choice made by a journalist, or any other person for that matter, is necessarily highly subjective. One could very well argue that a later assessment by a judge, (called upon to decide whether the right to privacy had been infringed in consequence), would be equally subjective, notwithstanding the historical fiction that a judge is supposed to apply a trained legal mind to the issues. The answer therefore to the question " Is there a right to publish true but unwelcome and damaging private information about individuals?" remains elusive.

The question becomes clearer however when public conduct is involved. Modern media law unequivocally allows private action of public figures to be exposed insofar as it reflects on public conduct. Indeed, the latter is the point at which the media is called upon to exercise its right to inform. Johann Van Der Westhuizen, South African rights law expert put it well when he said that, in these instances, the media has a duty "to investigate and disclose possible malpractices and abuse of power in an administration, together with relevant aspects of the professional and private conduct of those putting themselves forward as leaders."

Attempts to deny this right to inform the public are undoubtedly destructive. However, on the other hand, infringement beyond a point, of the right to privacy by journalists, (or for that matter, any other lobby), is as counter-productive. These are apt reminders for us at this point of time when the office of the Chief Justice has again attracted controversy in a manner that reflects ill on the institution of the judiciary in Sri Lanka.

Thus, we have opinions ranging from one side of the spectrum to the other, including those who unashamedly assert that lying in the public eye is nothing very problematic if lying indeed was involved, (as lies are now the order of the day anyway in this country), to others who spare no salacious item of gossip in their quest to 'seek the truth." Proponents of both these approaches can assuredly have only their niggardliness of mind to recommend them. More destructively, such approaches only detract from the seriousness of the matters that are in issue when institutional accountability and dignity is in question.

Then again, we have had the current President of the Bar calling upon the appellate judiciary, (inappropriately as it were, at a recent ceremonial sitting of the Court of Appeal to welcome a new appointment to the bench), to exercise powers of contempt to deal with media persons in this regard.

This invoking of the powers of contempt as if calling upon the powers of the Almighty, belongs to a different and less enlightened era altogether, a fact which the President of the Bar may be well apprised of. While there is no doubt that irresponsible journalism needs to be condemned in the strongest possible terms, statements such as these, (quite apart from the inappropriate nature of the occasion on which they were uttered), tend to attract the criticism that they are made with the express intention of subverting the right to inform.

As far as the media is concerned however, certain homespun truths continue to be relevant. On a previous occasion, this writer had reason to reflect on a tripartite trust articulated by the Nigerian writer, critical thinker and Nobel Laureate for Literature Wole Soyinka at the 51st World Newspaper Conference in Kobe, Japan.

Soyinka proposed an interesting trilogy of guiding principles for the media; namely Rights, Reason and Responsibility. The trilogy was explained in the following manner. The first Declaration of the Rights of Man, (born out of the French Revolution and later to have a profound effect on subsequent international human rights documents), was based on the principle that man is a reasoning animal. It was from this capacity to reason that his rights flow.

Reason implies a sense of proportion, the ability to sift through evidence and demarcate zones of truth, probability and absolute falsity. Reason also means the capacity to be able to extract a semblance of order amidst a welter of facts, to identify cause and effect and sometimes, even to deduce effect from fact long before the former becomes an actuality. The exercise of reason could be rightly demanded from any profession that bases its existence on fundamental human rights.

In this interplay of Rights with Reason, Responsibility is also crucial. Rights are simply not sustainable without a sense of responsibility, otherwise society becomes lopsided- one sector asserts and enjoys its rights while another pays the price. The whole forms a tripartite trust. As an eclectic news consumer like most people, Soyinka makes the point that he has the right to demand the fulfillment of this tripartite trust by the media.

Here, the Nobel Prize Laureate was speaking specifically about the manner in which the American media had expended time, money and effort on what he terms as the "Monica Lewinsky Grand Prix". His conclusion was that in elevating a President's sexual pecadilloes to world status, the media was, in fact, engaging in an insidious debilitation of the world's capacity to respond to far more crucial and moral issues.

His reminder that the year on which he spoke, celebrated the 50th Anniversary of the Universal Declaration of Human Rights with however little media attention on that fact, put one question in focus; if one hundreth of media time devoted to the Clinton issue had focussed on the activities of commemoration by innumerable human rights organisations throughout the world or to the many blatant violators of the provisions of that Declaration who are morally defaulting members of the United Nations, to what extent would there be a better understanding of the concerns that agitate millions? His questions were directed at the American press. They remain however, questions that are true of all time and in other different domestic contexts as well.

This trilogy of guiding principles outlined by Soyinka underscores the very basic premise that the media does not have power to direct that their columns or editorials be enforced through bureaucrats or through service personnel. The ultimate power of its word depends therefore on its credibility. It is through this that its influence could be at once, minute or very great.

For the successful setting of a dialogue in the public forum on issues impacting on the right to privacy and the right to inform in order that the processes of governance become accountable to the public, the observance of Soyinka's trilogy is essential. It is on this plank, and this only that the Sri Lankan media can make its demand for greater and better accountability of public figures, including the right to ask even the Chief Justice to account for his actions.

And it is again only in this context that alleged subversion of official power and position by any body in this country becomes of the gravest importance, to be dealt with in a manner that is both fair and appropriate.

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