Right to Privacy under Section 8(1)(j) and Confidentiality under Section 11 of the RTI Act
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10044 OF 2010
CENTRAL PUBLIC INFORMATION OFFICER,
SUPREME COURT OF INDIA ….. APPELLANT(S)
VERSUS
SUBHASH CHANDRA AGARWAL ….. RESPONDENT(S)
W I T H
CIVIL APPEAL NO. 10045 OF 2010
A N D
CIVIL APPEAL NO. 2683 OF 2010
J U D G M E N T
SANJIV KHANNA, J.
Right to Privacy under Section 8(1)(j) and
Confidentiality under Section 11 of the RTI Act
36. If one’s right to know is absolute, then the same may invade
another’s right to privacy and breach confidentiality, and,
therefore, the former right has to be harmonised with the need for
personal privacy, confidentiality of information and effective
governance. The RTI Act captures this interplay of the competing
rights under clause (j) to Section 8(1) and Section 11. While
clause (j) to Section 8(1) refers to personal information as distinct
from information relating to public activity or interest and seeks to
exempt disclosure of such information, as well as such information
which, if disclosed, would cause unwarranted invasion of privacy
Civil Appeal No. 10044 of 2010 & Ors. Page 47 of 108
of an individual, unless public interest warrants its disclosure,
Section 11 exempts the disclosure of ‘information or
record…which relates to or has been supplied by a third party and
has been treated as confidential by that third party’. By differently
wording and inditing the challenge that privacy and confidentiality
throw to information rights, the RTI Act also recognises the
interconnectedness, yet distinctiveness between the breach of
confidentiality and invasion of privacy, as the former is broader
than the latter, as will be noticed below.
37. Breach of confidentiality has an older conception and was
primarily an equitable remedy based on the principle that one
party is entitled to enforce equitable duty on the persons bound by
an obligation of confidentiality on account of the relationship they
share, with actual or constructive knowledge of the confidential
relationship. Conventionally a conception of equity, confidentiality
also arises in a contract, or by a statute.18 Contractually, an
obligation to keep certain information confidential can be
effectuated expressly or implicitly by an oral or written agreement,
whereas in statutes certain extant and defined relationships are
imposed with the duty to maintain details, communication
18 See Prince Albert v. Strange, (1849) 1 Mac.&G 25, and Lord Oliver of Aylmerton, Spycatcher:
Confidence, Copyright and Contempt, Israel Law Review (1989) 23(4), 407 [as also quoted in Philip
Coppel, Information Rights, Law and Practice (4
th Edition Hart Publishing 2014)].
Civil Appeal No. 10044 of 2010 & Ors. Page 48 of 108
exchanged and records confidential. Confidentiality referred to in
the phrase 'breach of confidentiality' was initially popularly
perceived and interpreted as confidentiality arising out of a preexisting confidential relationship, as the obligation to keep certain
information confidential was on account of the nature of the
relationship. The insistence of a pre-existing confidential
relationship did not conceive a possibility that a duty to keep
information confidential could arise even if a relationship, in which
such information is exchanged and held, is not pre-existing. This
created a distinction between confidential information obtained
through the violation of a confidential relationship and similar
confidential information obtained in some other way. With time,
courts and jurists, who recognised this anomaly, have diluted the
requirement of the existence of a confidential relationship and held
that three elements were essential for a case of breach of
confidentiality to succeed, namely – (a) information should be of
confidential nature; (b) information must be imparted in
circumstances importing an obligation of confidentiality; and (c)
that there must be unauthorised use of information (See Coco v.
AN Clark (Engineers) Ltd.19). The “artificial”20 distinction was
emphatically abrogated by the test adopted by Lord Goff of
19 [1969] RPC 41
20 Campbell v. Mirror Group Newspapers Limited (2004) UKHL 22
Civil Appeal No. 10044 of 2010 & Ors. Page 49 of 108
Chieveley in Attorney-General v. Guardian Newspaper Limited
(No. 2)21, who had observed:
“a duty of confidence arises when confidential
information comes to the knowledge of a person... in
circumstances where he has notice, or is held to have
agreed, that the information is confidential, with the
effect that it would be just in all the circumstances that
he should be precluded from disclosing the information
to others.”
Lord Goff, thus, lifted the limiting constraint of a need for
initial confidential relationship stating that a 'duty of confidence'
would apply whenever a person receives information he knows or
ought to know is fairly and reasonably to be regarded as
confidential. Therefore, confidential information must not be
something which is a public property and in public knowledge/
public domain as confidentiality necessarily attributes
inaccessibility, that is, the information must not be generally
accessible, otherwise it cannot be regarded as confidential.
However, self-clarification or certification will not be relevant
because whether or not the information is confidential has to be
determined as a matter of fact. The test to be applied is that of a
reasonable person, that is, information must be such that a
reasonable person would regard it as confidential. Confidentiality
of information also has reference to the quality of information
21 (1990) 1 AC 109
Civil Appeal No. 10044 of 2010 & Ors. Page 50 of 108
though it may apply even if the information is false or partly
incorrect. However, the information must not be trivial or useless.
38. While previously information that could be considered personal
would have been protected only if it were exchanged in a
confidential relationship or considered confidential by nature,
significant developments in jurisprudence since the 1990’s have
posited the acceptance of privacy as a separate right and
something worthy of protection on its own as opposed to being
protected under an actionable claim for breach of confidentiality. A
claim to protect privacy is, in a sense, a claim for the preservation
of confidentiality of personal information. With progression of the
right to privacy, the underlying values of the law that protects
personal information came to be seen differently as the courts
recognised that unlike law of confidentiality that is based upon
duty of good faith, right to privacy focuses on the protection of
human autonomy and dignity by granting the right to control the
dissemination of information about one’s private life and the right
to the esteem and respect of other people (See - Sedley LJ
in Douglas v. Hello! Ltd22). In PJS v. News Group Newspapers
Ltd.23, the Supreme Court of the United Kingdom had drawn a
22 (2001) QB 967
23 (2016) UKSC 26
Civil Appeal No. 10044 of 2010 & Ors. Page 51 of 108
distinction between the right to respect private and family life or
privacy and claims based upon confidentiality by observing that
the law extends greater protection to privacy rights than rights in
relation to confidential matters. In the former case, the claim for
misuse of private information can survive even when information
is in the public domain as its repetitive use itself leads to violation
of the said right. The right to privacy gets the benefit of both the
quantitative and the qualitative protection. The former refers to the
disclosure already made and what is yet undisclosed, whereas the
latter refers to the privateness of the material, invasion of which is
an illegal intrusion into the right to privacy. Claim for confidentiality
would generally fail when the information is in public domain. The
law of privacy is, therefore, not solely concerned with the
information, but more concerned with the intrusion and violation of
private rights. Citing an instance of how publishing of defamatory
material can be remedied by a trial establishing the falsity of such
material and award of damages, whereas invasion of privacy
cannot be similarly redressed, the Court had highlighted the
reason why truth or falsity of an allegation or information may be
irrelevant when it comes to invasion of privacy. Therefore, claims
for protection against invasion of private and family life do not
depend upon confidentiality alone. This distinction is important to
Civil Appeal No. 10044 of 2010 & Ors. Page 52 of 108
understand the protection given to two different rights vide Section
8(1)(j) and 11 of the RTI Act.