Media Rights and Privacy Rights

As many people know, Maya Khan used to be employed by Samaa TVas the host of a show called “Subah Saveray Maya kay saath”. Last week, she and about 10-15 other women descended upon a park in Karachi, cameraman in tow, after which Ms Khan proceeded to first approach and then harangue ‘couples’, the term ‘couple’ being loosely interpreted as any woman either sitting or walking within five feet of an adult male.

Ms Khan’s theatrics set off a veritable firestorm in Pakistan’s burgeoning social media. A number of bloggers wrote furious letters to the world at large, five thousand people signed an online petition to Zafar Siddiqui, the Chief Executive of Samaa TV, and a series of veryagitated columns appeared in the English media. In my own case, I was angry enough to offer my legal services for free to anyone desirous of challenging Ms Khan’s theatrics in court, an offer accepted first by Nighat Dad at Bytes for All, and then by other organisations.

But just as the final touches were being put on the petition, news arrived that Ms Khan’s employment with Samaa had been terminated. Given that Marvi Sirmed and some other brave spirits had also been agitating within Pemra for action, the issue was whether there was any point in proceeding. After some discussion, the general conclusion that — at least at this stage — there was little to be gained from flogging a dead horse.

Let me make it clear though that this issue is not forgotten. Our media explosion has so far not been accompanied with any real sense of limitation or propriety. In some ways, this is exhilarating. But in some ways, as shown by the Maya Khan episode, there needs to be some minimal sense of propriety, otherwise the media winds up becoming a tool for hypocrisy and bigotry.

From a legal perspective, there are also serious issues that need to be examined. Where, after all, does the right to privacy come from and is it indeed protected by our Constitution?

To begin with, there is no doubt that the Constitution recognises a fundamental right to privacy. In Presidential Reference No. 2 of 2005, PLD 2005 SC 873 a nine-member bench of the Supreme Court had declared the Hisba Bill passed by the NWFP Assembly as violative of the fundamental right of privacy enshrined in Article 9 (Right to Life) and Article 14 (Right to Dignity of Man).

The real questions that arose out of the Maya Khan episode were thus more complex. What are the contours of the right to privacy? And, how is that right to be balanced against the freedom of the press and Pakistan’s ostensible status as an Islamic country?

Our fundamental argument was based on Article 4 which says that every person has a right to be treated in accordance with law. The applicability of this norm to young couples loitering in a park may seem odd but we were trying to invoke the reverse aspect of Article 4, that is the right of every person to be left alone by others except to the extent authorised by law. In short, our argument was that it was Maya Khan’s burden to show the basis on which she was harassing people, not the burden of those being hounded out of a park to show the legal basis for their being allowed to walk together in public.

In terms of the balance between privacy rights and media rights, the short answer is that there is no clear dividing line. Instead, what is ‘appropriate’ depends considerably on how society responds to media intrusion into the private sphere. However, we were trying to establish three basic points.

The first point is that privacy rights differ depending upon the people involved. The media thus may have a legitimate interest in poking into the private lives of public individuals — note, “may” — but that certainly does not justify the media intruding into the private lives of entirely private individuals. None of the young men and women taking a walk in the park was inviting media or public scrutiny and none of them were candidates for public office. Maya Khan’s intrusion was thus unjustified.

The second point that we were trying to establish is that irrespective of where the line between private and public is to be drawn, the Maya Khan episode was certainly well on the wrong side of any line a reasonable person would draw. And it is in this context that we wanted to take advantage of public anger to show that Pakistani society does not support vigilante action in the private domain.

Our third point was in relation to the religious angle. In this context, our point was simple: the Supreme Court had already stopped a provincial government from setting up a ‘morality police’. If so, how could individual television personalities become self-appointed ‘thanedars-at-large’?

Looking back on the affair, I am actually happier that we did not have to file a petition. The firm action taken by Samaa against Maya Khan has caused more ripples in the media world than any judgment could have done. Let’s be honest: television anchors contemplating similar shenanigans are far more likely to be worried about being fired than about becoming the subject matter of Supreme Court petitions.

For media analysts, there is a further point to be noted. Pakistan’s social media world has often been derided by ‘real’ journalists as being just an elitist farce, just like Pakistan’s English print media is routinely scoffed at by Urdu and television journalists as being out of touch. In this case, the outrage was almost entirely confined to Facebook, Twitter and the opinion pages of the English print media and yet, the force of this outrage was enough to cause a television channel to fire their anchor. This shows that social media is not as disconnected from the ‘real’ Pakistan as ‘real’ journalists like to believe. It also shows that social media is becoming a force to be reckoned with.

Time will tell whether the Maya Khan episode is just another flash in the pan or whether it reflects the first inklings of maturity in our media. Let’s all hope it’s the latter.

By Feisal H Naqvi
The Express Tribune

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