Is Sting Operation an Invasion on Privacy

In December 2005 the news channel Aaj Tak broadcast a sting operation called Operation Duryodhana, in which hidden cameras filmed eleven members of Parliament, ten from the Lok Sabha and one from the Rajya Sabha, accepting money in return for asking questions in the House. Within days, both houses of Parliament voted to expel them, and the Supreme Court in 2007 upheld the expulsions. Four years earlier, the website Tehelka had used hidden cameras to show defence deals being arranged with the offer of bribes in Operation Westend. These cases showed that a concealed camera could bring down the powerful. They also raised the question in the topic, whether a sting operation is an invasion of privacy.

A sting operation is an investigation in which a journalist or an investigator poses as someone else, often with hidden cameras or recorders, to catch a person in a wrongful act. The target does not know that he is being recorded. The method is adapted from police practice, where undercover agents and decoys are used to catch criminals. In journalism, it is used when wrongdoing is concealed and cannot be exposed in the open.

Privacy is the right to be left alone and to control information about one's own life. The Supreme Court of India has found it within Article 21, the right to life and personal liberty, in cases such as Kharak Singh in 1962, Gobind in 1975 and People's Union for Civil Liberties in 1997, which dealt with telephone tapping and laid down safeguards. In R. Rajagopal v. State of Tamil Nadu in 1994, concerning the autobiography of a convicted murderer, the Court held that a citizen has a right to be let alone regarding his private life, while public officials have no such right in relation to acts done in the discharge of their official duties. The principle is crucial for the topic.

On its face, a sting is an invasion. The subject is filmed or recorded without consent, in some cases in his home or office. It involves deception, since the reporter pretends to be a client or a friend. The footage may be edited, and it may reveal matters unrelated to the wrong, including personal conversations. A person who is exposed in a sting may suffer humiliation and loss of reputation before any court has judged him. In some cases, as with the television sting in 2007 on a Delhi schoolteacher that was later found to be fabricated, innocent people have been ruined.

A person who is exposed in a sting may suffer humiliation and loss of reputation before any court has judged him.

The defence rests on the public interest. Privacy protects the private sphere of life, such as family, health, beliefs and personal relationships. It does not extend to corruption, bribery or abuse of office, which are crimes against the public. When an elected representative sells his vote, or an official sells a licence, the harm is public and the secrecy is part of the crime. Many such offences leave no witness willing to speak, because both parties benefit, and the only way to reveal them is to catch them in the act. The freedom of the press under Article 19(1)(a) includes the right to investigate and publish. A democracy needs such exposure because it depends on informed citizens and accountable rulers.

Still, the method has dangers. The first is entrapment, in which the reporter does not just observe but induces a person to commit an offence he would not otherwise have committed. If an honest official is repeatedly tempted until he gives way, the result says little about his character. Courts in many countries refuse to convict on evidence obtained by entrapment. In India, the High Court of Delhi and the Supreme Court have expressed concern about the use of sting operations by the media, and in the case concerning a sting on lawyers in a famous trial, the Supreme Court in 2009 criticised the way it was done while accepting that such investigations could serve a public purpose.

The second danger is the motive. Channels compete for audience, and a sting may be used for sensation, to blackmail or to settle political scores. The third is the standard of proof, since footage can be edited, and a sting is not a trial. The Press Council and the broadcasters' bodies have drawn up guidelines in the past, and the News Broadcasting Standards Authority has suggested principles, including that stings be used only as a last resort, only when the public interest is clear, that the material not be altered and that the subjects be given a chance to respond.

The wise rule might be a balance. A sting is justified when there is a prima facie basis for suspecting serious wrongdoing affecting the public, when other means of discovery are not available, when the journalist does not instigate the crime, when the footage is authentic and complete, and when private matters unrelated to the offence are not published. It is not justified against private individuals for private conduct, or as a fishing expedition. Courts, which can weigh the rights, are the better judges of the individual case. Intrusion on privacy must be proportionate to the end it serves.

Ethics in the profession is a further matter. Journalism has its own code, which holds that deception is acceptable only when the story cannot be obtained by open means. Editors should ask whether the harm of intrusion is outweighed by the public good, and should be ready to explain the choice. The public, too, has a duty not to treat footage as a verdict, and to wait for the process of law. Broadcasters who pay informants, or stage events for the camera, undermine the credibility of honest stings.

Law can help. Some countries regulate the use of hidden recording, and allow it in the public interest. A statute on privacy, which India lacks, would define the rights and the exceptions more clearly than judicial decisions on a case by case basis. It would also protect citizens against intrusion by the state and by private companies, which is a larger threat than the occasional sting.

The deepest question is about the relation between citizen and state. A government that watches its people without cause is a danger to liberty. A press that watches the government is a defence of it. The difficulty is that the same camera does both, and it cannot tell by itself which of them it is doing. That judgment still has to be made by a person, after the footage is shot, and sometimes after it has already been seen by millions.