Column| Video Extracts Of Court Proceedings And The Conflict of Rights

“Publicity is the very soul of justice”.^[2] Both in Criminal^[3] as well as Civil^[4] trials, open court hearing is the norm. However, the question which arises after the right to privacy has been recognised as a Fundamental right as a part of right to life and right to life with dignity through another Constitutional bench ruling in K.S. Puttaswamy v. UOI^[5]is whether an individual is entitled to “create content” using extracts from live streaming and adding special effects and broadcast or publish the edited or modified video in the public domain, ‘ Who is allowed to publish live-streaming or any audio-visual extract of any live-streaming and who is not? Publishing in what form is allowed? Publishing in what form is disallowed? What is the scope and ambit of rights available to an individual in this regard in a sub judice case?

The cardinal issue in this debate is not about live-streaming of cases or the citizens' 'right to know' available against the state or even the courts but whether an individual has a right for any reason to add her own element of emphasis to recordings of court proceedings or whether an individual can create or add “her own content”?

This proposition has more relevance in cases which arouse passion such as interstate water disputes, reservations or disputes with respect to competing rights of communities connected with right to worship in a religious place of context. While live-streaming of a case puts the case before the public, selectively extracting some parts of the case projects not the case before the public but only projects a person disjoint from the case be it the accused or the witness or the judge himself under public scrutiny.

In criminal cases post amendment to CrPC., it is always ‘the case’ which is before the court and not an accused who is before the court.^[6] Selective extracts of live-streaming may neither put the case before the public nor the person in the case, but it may put the judge and his conduct before the public in a biased manner. It is for this reason that Article 121 of the Constitution of India also states that no discussion shall take place in parliament with respect to the conduct of any judge of the supreme court or high court in the discharge of his duties except when an impeachment proceeding is being discussed. Parliament can regulate salaries, working conditions of judges etc., but not discuss conduct of a judge.

An important difference is that live-streaming of a case brings out the ‘public interest’ of a case, the selective videos may not necessarily bring out public interest or any matter of ‘interest of the general public’ but may bring out material ‘which interests the public’. Such matters ‘which interests the public’ may not always have any connection with ‘public interest’^[7]. This is where the right to reputation^[8] and the right to privacy as facets of Article 19 and Article 21 of the Constitution of India step in to stop the juggernaut of publicity^[9]. The threat to right to reputation was also highlighted by earlier judgements of the Supreme Court of India for which it also alluded to revered texts, Greek philosophy and went back to even a shloka of Bhagavad Gita^[10]. Therefore, it is safe to conclude that right to reputation has been an intrinsic thought in evolution of rights.

Public Records of Private Documents: Once a Secret Always a Secret

It can be argued that what has come in public domain may not have anything to do with private lives. The Supreme Court of India much before the Puttaswamy judgement^[11] way back in 2005 in the case of District Registrar and Collector v. Canara Bank ^[12]has followed the concept that a secret remains a secret even when shared with those whom an individual selects for one’s confidence and followed the principle that privacy is not in relation to property but is attached to one’s individuality or person. Hence, information disclosed to some may remain a secret for all others. Secrecy may well be an intrinsic component of privacy. Constitutionally speaking a secret is not information which is never to be told. On the contrary, Constitutional rights enable secrets to be told and yet remain a secret within the realm of privacy.

Both Justice Chandrachud and Justice Kaul have taken pains to highlight that privacy is lost not merely because a person is in a public place. The Puttaswamy judgement has highlighted that privacy attaches to a person since it is an essential test of the dignity of a human being.^[13] The Supreme Court struck down provisions of the Andhra Pradesh Act^[14] which enabled any person authorised in writing by collector to have access to documents in private custody or custody of a public officer. In effect, the court held that state cannot be authorised to have unrestricted access to even inspect all bank records of an individual except in such situations where it has some reliable information before it prior to such inspection. Documents or copies of the documents of the customer which are shared by the bank even voluntarily must continue to remain confidential vis a vis the person in its entirety and also in parts.

Technology, Journalistic Freedom & Location of Right to Privacy

The right to privacy has been located in the Constitution of India not only qua Article 21 dealing with right to life and liberty but also through Articles 19(1)(a) and 19(1)(d) of Constitution of India.^[15]Journalistic freedom also finds its roots in Article 19. If journalistic freedom is to be quoted or the right of freedom of speech and expression is to be quoted against any restrictions on such circulation of videos, then concerns of privacy and reputation both interdict such freedom. Justice Chandrachud in the Puttaswamy judgment has also given his thoughts on the fact that technological change has given rise to concerns which were not present seven decades ago and the rapid growth of technology may render obsolete many notions of the present.^[16] This is in the context of the fact that in an age of technology, information has an ‘ability to travel at speed of light ^[17]. Today with selective video extracts of court proceedings, we are faced with one such challenge, which was not in contemplation even 10 years ago.

Journalistic freedom and freedom of expression both have to balance out against denying any individual the right to life, the right to anonymity, the right to dignity and the right to reputation. Justice Kaul has highlighted in the Puttaswamy judgement that technological development ‘has facilitated journalism that is more intrusive than ever before’.^[18] The full ambit of the need of protection of privacy even to celebrities was highlighted by Justice Sanjay Kishan Kaul. J. Kaul while pointing that individuals need protection against arbitrary judgements of arising even from truth:

“623. An individual has a right to protect his reputation from being unfairly harmed and such protection of reputation needs to exist not only against falsehood but also certain truths. It cannot be said that a more accurate judgment about people can be facilitated by knowing private details about their lives - people judge us badly, they judge us in haste, they judge out of context, they judge without hearing the whole story and they judge with hypocrisy. Privacy lets people protect themselves from these troublesome judgments."

The rights guaranteed to individuals are not absolute and even in case of journalistic freedom some errors and mistakes have been committed.

Journalistic Rights & Scrutiny of Courts

Scrutiny of courts' judgment and its proceedings by common people is imperative and it is settled by the Supreme Court of India itself that justice is not a cloistered virtue^[20] , it must be allowed to suffer the scrutiny of even outspoken comments of ordinary man. However, none of the earlier laws or the judgment have considered selective circulation of edited contents of a few minutes of sub-judice court proceedings which may be out of context and reports not evaluating the worth of the case, but evaluating the worth of a person involved in the case, be it a litigant, witness, lawyers or the judge himself whether in positive or negative light.

The Supreme Court in one instance^[21], had taken to task a magazine called Sage, for publishing sub-judice material. Pending appeal before Supreme Court and pending the whole trial before the district level Judiciary, Sage published an article titled “Doomed by the Dowry” giving version of tragedy and extensively quoting the version of father of the deceased and his perspective. These were all the material which could be used in the ensuing trial and in the opinion of court was material such that would interfere in the administrative of Justice. The case of Manu Sharma^[22] presents another dimension of media albeit with all noble intentions going overboard. The Supreme Court had to note that presumption of innocence of an accused is a legal presumption and should not be destroyed at very threshold through the process of media trial and that too when the investigation is pending. In the Manu Sharma case, the media could have very nearly helped the accused by its overzealous approach. The court took note of Late Sh. Ram Jethmalani's submission that his client was specifically targeted and maligned. The court held that certain articles and news items appearing in the newspapers immediately after the date of occurrence, did cause certain confusion in the mind of the public as to description and number of assailants/ suspects and did, though to a very limited extent, affect the accused adversely. Fortunately, the court did not find that media trial did not go to the extent where it could be said that trial as a whole was prejudiced. The two examples unequivocally point out that even well-meaning circulations could prejudice the rights of victims and help the accused.

Till now, the courts were dealing with reputed media houses publishing material with respect to issues of courts or a group of citizens taking out morcha but not anymore, Times have changed and in the age of digital and social media every individual can use the medium from the comforts of home and place his own extracts of a few minutes of court proceedings with her own interpretation and comments, not vetted by any legal expert or an editor guided by journalistic ethics.

Activism vs. Over-activism

While activism brought out the Manu Sharma case from the brink of injustice, over-activism nearly cooked the goose in another case. The results were not catastrophic in the final conclusion of Manu Sharma case but were certainly catastrophic in the case of a young girl.^[23]In this case, great harm was caused to the rape victim by public outcry and the plea of the accused rapist that he may not get a fair trial at Kolhapur was accepted. The case was transferred to session judge, Salara as even a "Morcha" was taken out in the city. The prosecutrix, a girl of 8 yrs, had to suffer because of such hyper activism which as recorded by the court came in the way of a fair trial. Hence even well-meaning public activism may not always fit into the legal paradigm. Now the challenge is of videos circulating of court proceedings even pending trial and recording of witness statements. With one sided edited videos, an accused may well take a stand at a later date that prejudice was caused to his/her trial because of generation of public opinion through such selective videos.

Copy Right Issues

Many of these clips are being circulated under the guise of being" for educational purposes" to get over Section 107 of the Indian Copyright Act, 1976. The memes adding music, special effects or showing a lawyer facing a volley of reasonable or sometimes not so reasonable volley of questions by the judges is generally found not to be a publication for "fair use" which is allowed for purposes such as criticism, comment, news reporting, teaching, scholarship, education and research. The need to get over Copyright Law through fair use principle is necessitated by the fact that it is the Courts which owns the Copyright and the fact that under the guise of educational use contempt proceedings could be avoided. Even the draft Supreme Court Rules declare such “creation of content” as illegal and liable for prosecution.

The Indian Model Rules for Live Streaming & Recording of Court Proceedings

The judgement in the case Swapnil Tripathi^[24] while holding that the common man has a right to participate in open hearings of the court through digital format considered the trends evolving globally while holding that the court proceedings ought to be live-streamed. It was held that such live-streaming has to be subject to concerns regarding administration of justice, dignity and privacy of the participants to the proceedings and majesty and decorum of the courts. Hence, Model rules were suggested and the Supreme Court of India thereafter framed model rules. The court had to make provisions for due publicity of cases yet maintain the secrecy of what may sometimes be private contents of a citizen’s rights. The Supreme Court on the administrative side while allowing live streaming had to take into consideration the law already laid down in the case of Sahara India Real Estate Corpn. Ltd. v. SEBI^[25]and was bound to protect people’s reputation and privacy.

"…… Under our Constitution, probably, no values are absolute. All-important values, therefore, must be qualified and balanced against other important, and often competing values. This process of definition, qualification and balancing is as much required with respect to the value of freedom of expression as it is for other values. Consequently, free speech, in appropriate cases, has got to correlate with fair trial. It also follows that in an appropriate case one right (say freedom of expression) may have to yield to the other right like right to a fair trial. Further, even Articles 14 and 21 are subject to the test of reasonableness after the judgment of this Court in Maneka Gandhi v. Union of India."

The Indian Model Rules have given enough consideration to unauthorised use of extracts of live proceedings and has put caveats on reproduction modification, editing or processing of extracts of live streaming. Rule 9.2 is comprehensive in this regard.

“9.2. Prohibitions and restrictions on usage of the recording or live stream:

i No person/entity (including print and electronic media, and social media platforms) other than an authorised person/entity shall record, share and/or disseminate live streamed proceedings or archival data. This provision shall also apply to all messaging applications. Any person/entity acting contrary to this provision will be prosecuted as per law. The court shall have the exclusive copyright in the recordings and archival Data. Any unauthorised usage of the live stream will be punishable as an offence under the Indian Copyright Act, 1957, Information Technology Act, 2000, and other provisions of law, including the law of Contempt.

iii. The live stream shall not, without the prior written authorisation of the Court, be reproduced, transmitted, uploaded, posted, modified, published, or republished in any form.

iv. The use of authorised recordings in their original form may be permitted by the Court, inter-alia to disseminate news and for training, academic and educational purposes. Authorised recordings handed over for the aforesaid purposes shall not be further edited or processed. Such recordings will not be used for commercial, promotional purposes or advertising in any form.”

The Model Rules^[26] in fact has gone further than merely denying right to “create content” in sub judice matter. The rules have gone to the extent of providing for the anonymity of the victims and witnesses in the recordings via dummy names, face masking, pixelation and/or electronic distortion of voice, as and when directed by the court. The rules also prohibits any person/entity (including print and electronic media, and social media platforms) other than an authorised person/entity from recording/sharing and/or disseminating live-stream proceedings and archival data.

The videos with special effects, added comments and/or background music, or video filters may all be going against the Model rules for live-streaming and recording of court proceedings. Even those communications qua Rule 6.3(vii)^[27] between the bench and the bar which is not a submission exchanged between the advocate and the court are out of purview of electronic recordings of the proceedings. It is left for interpretation as to whether the courts general observations while considering a case from all perspectives would or would not fall within the phrase ‘not a submission exchanged between the advocate and the court’. The personal information is protected through Rule 8.1^[28] and Rule 8.4^[29] which provide that recording will be vetted and shall be posted, usually within 3 days of the conclusion of the proceedings. Rule 8.3.ii. provides that there shall be a delay of 10 minutes in streaming which may be changed as per the direction of the court.

Conclusion

While right to view live streaming of court proceedings is undisputed, the question is whether a right to view the content also gives a right to create content. The right to create video content through editing, adding special effects, comments background music and without giving the full contents of the sub judice case may not fall within the permissible domain of journalistic rights or right to know of individuals in all facets of Article 19 of the constitution of India even absent the rules. If such right were to be inferred the delicate balance between varying rights of individuals may collapse. One has to keep in mind unlike in a finally decided matter in a sub judice matter, the final verdict is yet awaited.

‘Right to create content’ by using records of courts proceedings cannot be inferred in Article 19 while inferring the right to digitally participate in court proceedings. Such selective videos deviate focus from ‘the case’ to the ‘persons involved in the case’ and may well lead to a mistrial or nearly a mistrial as the case of Rajendra Jawanmal Gandhi and Manu Sharma and M.P. Lohiya. While press reports in the Manu Sharma’s case could have given benefit to the accused, had the movie “Who Killed Jessica ?” inspired from the events of the same case been released pending a trial, there would have been certainly a mistrial. The short video extracts may some day present such a challenging fact situation. These videos also violate the Indian Model Rules. Sooner or later in some court, some issue of this nature may soon raise interesting questions of law. The caution sounded by the Supreme Court in this regard^[30] is worth a recall:

"56. …….In recognising that court proceedings ought to be live streamed, this Court is mindful of and has strived to balance the various interests regarding administration of justice, including open justice, dignity and privacy of the participants to the proceedings and the majesty and decorum of the courts."