‘How will news be reported?’

On Tuesday, 27 October, the Supreme Court issued a notice to the Centre on a petition from 21 news publishers, including companies owned by Mukesh Ambani and Gautam Adani. The petitioners contend that the Digital Personal Data Protection (DPDP) Act and its Rules will ‘maim journalism’.

Senior advocate Madhavi Divan, appearing for the Digital News Publishers Association, put the problem plainly: “If I am left to the mercy of the data principal as to whether he or she will give consent, how will news be reported?”

It is unusual to see India’s largest media houses, rarely natural allies in the fight for freedom of the press, going to court together. That they have done so should tell us how serious the problem is.

Start with the design. The Act asks anyone who processes personal data to obtain consent. Journalism, however, is a trade built on information that someone would rather keep hidden. No minister has ever consented to a story about his undeclared assets. No contractor has signed a form approving a report on a rigged tender.

Unlike the European Union’s GDPR, which carves out space for journalistic work, the Indian law offers no such exemption. A reporter who gathers and publishes information about a person risks being treated as a ‘data fiduciary’, answerable to a data protection board that is not independent of the government, with penalties of up to Rs 250 crore.

Lawyer-activist Prashant Bhushan makes a fair point: while the law may not have been explicitly designed to target journalists, its broad and ambiguous language makes it a potential tool for doing so should the ‘need’ arise. (No prizes for guessing who decides that.)

Laws are not judged by the intentions of their authors. They are judged by what they allow their enforcers to do. A statute that is vague enough to catch anyone and everyone gives the state the power to choose their targets. Selective enforcement rarely needs a ban on reporting. A notice, a compliance demand or the threat of a fine is enough to make an editor think twice about a story.

Anyone who has worked in a newsroom knows that the story most likely to be killed is not the one that is banned but the one that lawyers advise against.

The newsroom is not the only place where this will hurt. Investigative journalism often depends on documents obtained under the Right to Information Act, and the DPDP regime also amends Section 8(1)(j) of the RTI Act, which handles personal information.

Details once open to scrutiny, such as the educational qualifications of an official or the particulars of a public contract, can now be refused in the name of privacy. As social activist Aruna Roy puts it, this is a lateral attack, and lateral attacks are often more dangerous than direct ones. Two rights that should reinforce each other have been set against each other.

The petition raises a graver worry still: the Centre’s power to requisition information. If the state can demand ‘any information’ from data holders, without telling the people affected, then the confidentiality of a journalist’s sources is as compromised as the government’s discretion in using this power.

A source speaks to a reporter based on trust. With trust gone, the whistleblower goes silent, and the story never gets written. Press freedom does not only die in dramatic raids. It dies quietly, when people with something of burning importance to say decide not to, for fear of their safety.

There’s also the question of a new breed of journalist: the citizen reporter. The publishers’ lawyer was careful to say her clients are ‘legacy media’, adding that “there has been some debate over citizen journalists”. That debate matters.

According to the Act, if a journalist collects and publishes any information about an individual, they must obtain that person’s consent. Delhi-based journalist Pragya Singh highlights the impracticality of this requirement. “I regularly interview people and gather information on the ground. It’s unrealistic to expect me to carry consent forms and get them signed before every interaction,” she says.

India’s independent YouTubers, blog writers, podcasters and X-based fact-checkers have no legal department, no insurance and no Ambani-sized balance sheet. They also do much of the work that large newsrooms are reluctant to. If a company with a compliance team finds the law unworkable, a lone reporter with a phone will not even try to comply. The most likely outcome is that they will simply stop. A law that only the rich can take on risks making journalism a rich man’s game.

The government’s own conduct sharpens the worry. Private actors must give notice and take consent, while the state’s exemptions, for purposes such as the ‘security of the State’, are wide and need not be disclosed to the citizen. When the rules for the watched are strict and the rules for the watcher are lax, it cannot be dignified as ‘protection of privacy’. What it is, is the asymmetry of power.

None of this means data protection is unnecessary. Indians do need protection from data leaks, profiling and the casual sale of personal information. But a good privacy law protects the individual from the powerful. It must not become a tool for the powerful to hide from the public.

The remedy is not complicated: a clear, enforceable exemption for journalism, one that covers freelancers and citizen reporters as well as large newsrooms, protection for the confidentiality of sources, and a restoration of the public-interest test in the RTI Act.

The court has listed the matter for hearing on 17 November. A democracy can protect both privacy and the freedom of the press. Will it?