THE IMPERATIVE OF DATA PRIVACY: ADDRESSING CHALLENGES IN THE DIGITAL ERA
The value of connection through smartphones, computers, and tablets now is growing daily. Personal data is being collected, stored, and used more as a result of the rising use of these products. This has raised several issues related to data privacy, privacy rights, and data protection.
People unintentionally give their personal information to businesses, governments, and other organisations, leading to privacy invasion. Each company or organisation, regardless of size, should place a high priority on data protection and privacy. This objective ought to be accomplished, but it isn’t since data collection from consumers is the core and most important part of every corporate activity. Data are a crucial organisational asset given the importance and ongoing growth of the digital economy but it cannot be used as an excuse to collect data from users without their permission and without them knowing anything about it. Article 21 of the Indian Constitution states: “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The primary goal of this fundamental right is to prohibit interference with personal freedom and the deprivation of life unless done so in accordance with legal procedure. ‘Protection of the right to privacy, property, and data’ is not specifically mentioned in the article but is incorporated and construed by the Supreme Court under ‘personal liberty’. The right to privacy is a complex idea that is not clear-cut and easy. It covers a range of aspects of a person’s private life as well as the security of their information.
ASSESSING THE CONCEPT OF PRIVACY IN INDIA AND THE MANNERS IN WHICH IT IS VIOLATED
It might be challenging to understand privacy and the right to privacy since they can be used in many different ways. Although privacy has been acknowledged by the law and by common understanding, different legal systems nevertheless place varying amounts of emphasis on different areas, resulting in privacy practices that may differ from one another. The definition of privacy is a neutral interaction between people or groups, or between people and groups. It may also be a value, a cultural state, or a condition that is aimed at an individual on the path to collective self-realization, depending on the culture. The term “privacy” refers to the right to regulate the gathering, utilisation, and disclosure of one’s personal information. Many organisations, including the government, breach this right in various ways.
❖ Tapping of Telephones and Privacy
Technologies are having a harmful impact on people’s privacy. The Indian Post Office Act’s Section 5(2) and the Indian Telegraph Act’s Section 26(1) both grant the national government and state governments the authority to intercept postal and telegraphic communications in the event of a public emergency for the sake of public safety.
The fundamental question in R.M. Malkani v. State of Maharashtra was whether the taped discussion may be used as evidence despite being in violation of the Telegraph Act. According to the ruling, the court will not stand by while measures for a citizen’s safety are jeopardised by allowing the police to act in an illegal or irregular manner. In the case of the State of Maharashtra v. Bharat Shanti Lai Shah, the Supreme Court ruled that while conversation interception violates a person’s right to privacy, it may be limited in line with legally acceptable procedures. The court must understand that the process must be fair, just, and reasonable, rather than capricious, fantastical, or oppressive.
❖ E-Media, Press and Privacy
The Supreme Court ruled in R. Rajagopal v. State of Tamil Nadu that the petitioners, even without Auto Shankar’s approval or authorization, had the right to publish what they describe as their life narrative or autobiography as long as it can be inferred from the public records. However, they could be violating his right to privacy if they go further and disclose his life narrative. It is necessary to disclose information on the most recent crimes and the way justice is being administered, but when do we recognise that the line between releasing information and breaching someone’s privacy is being blurred? Theoretically, for anything to constitute an invasion of privacy, it must be private information that is not in the public interest and that would be “highly offensive to a reasonable person” if it were disclosed. By taking into account elements including the societal worth of the given information, the level of intrusion into personal affairs, and the extent to which the subject is already in the public eye, electronic media and the press occasionally violate the idea of privacy.
In the Deconstruction of Public & Private Properties v. State of A.P. case, the Supreme Court further ruled that media outlets should base their reporting on the principles of objectivity and impartiality, ensuring neutrality, responsible reporting of sensitive issues, particularly crime, violence, agitations, and protests, sensitivity in reporting women and children, and matters relating to national security. It also ruled that privacy should be respected.
❖ Health and Privacy
Modern technology has made it possible to record information about a person’s health through the use of smartphone applications, health monitoring apps, smartwatches, and many more devices. Many people believe that health-related information is extremely sensitive. Doctors are forbidden from sharing any patient information without getting permission, as is the case in hospitals and private practices because doing so might endanger or negatively influence other people’s lives. Electronic health record (EHR) data are typically sold to other businesses so that they can utilise it for their own purposes.1
These are some of the situations when technical breakthroughs have violated people’s privacy. The majority of human labour has been digitised, with the majority of information being exchanged online, potential of States and commercial actors for bulk data collecting, decryption, and surveillance has also expanded due to the quick development of technology, which again directly impacts people’s right to privacy.
How this data is really gathered is one topic that comes up. This is carried out both actively— through the exchange of information—and passively—through each internet click. Applications like Uber, Ola, Zomato, Swiggy, Google Maps, and Apple Maps are aware of our locations and the locations we frequently visit. Instagram, Facebook, and Snapchat are aware of our friends. Email and messaging services are aware of our daily conversations and financial transactions. Health tracking apps are aware of our sleep patterns, daily step totals, heart rates, blood pressure, oxygen levels, and calories burned. These information are very private to majority of the individuals.
All of this boils down to the necessity to secure information that users are unwilling to provide, which could only be done by acting appropriately and with the occurrence of governmental intervention to ensure that users’ privacy is preserved.2
PRIVACY AND INDIA
In Justice K.S. Puttaswamy v. Union of India, the Supreme Court of India held in 2017 that the right to privacy is a basic right guaranteed by Article 21 of the Indian Constitution. Nevertheless, despite this important ruling, India has not yet passed appropriate data protection laws.
The Information Technology Act of 2000 and the Information Technology (Reasonable Security Practises and Procedures and Sensitive Personal Information) Rules of 2011 (IT Rules) are the main rules governing data protection in India. With relation to the gathering and disclosure of sensitive personal data or information, these regulations impose duties on commercial and corporate companies.
In accordance with Rule 5 of the IT Rules, personal information or data should only be gathered for a legitimate reason connected to the operation of the body corporate, and the individual giving the information must be made aware of different facts surrounding the acquisition and use of their information. With the exception of government organisations obliged by law to use the information for verification, prevention, detection, investigation, prosecution, and punishment of crimes, sharing information with third parties requires consent.
However, these laws primarily pertain to business entities that gather and disseminate data, and there is no comprehensive legislation governing the processing of personal data that is not deemed “sensitive personal data or information.”
The Personal Data Protection Bill, 2019 was tabled in the Lok Sabha in December 2019 to fix these shortcomings. The law seeks to create an Indian Data Protection Authority and safeguard people’s privacy. It is intended to apply to the handling of personal data of Indian citizens and residents that is done by Indian firms, Indian citizens, Indian-incorporated people, and international businesses.
A Joint Parliamentary Committee is now reviewing the measure; its report is anticipated to be presented during the forthcoming monsoon session.
The popular messaging programme WhatsApp was criticised in India for privacy issues. By sharing user account information with its parent business, Facebook, WhatsApp announced revisions to its privacy policy in 2016. Due to this, a petition was submitted to the Supreme Court with the claim that the new policy violated users’ right to privacy. Until September 25, 2016, WhatsApp was ordered by the court to destroy the data of users who choose to remove the programme or keep it on their mobile devices.
WhatsApp released a new privacy policy in January 2021, igniting discussions. Users no longer have the option to refuse to share their data with Facebook according to the new policy. In response, a lawsuit against the new policy was launched, claiming that since privacy protection regulations in India were less stringent than those in European nations, Indian customers were being unfairly treated. The parties concerned received notifications from the Supreme Court, and a three-judge court is hearing the case. The policy change deadline has been extended by WhatsApp until May 15, 2021.3 In conclusion, there have been some significant changes in how people spend their lives as a result of technological innovation. Without the subject’s knowledge or permission, everything they do is tracked and recorded. In the digital era, ensuring data security and privacy is a challenging process, but it is not impossible. Just the proper amount of regulation, individual freedom, and technical innovation must be struck. Although India has taken measures to recognise and uphold the right to privacy, adequate data protection laws are still required to fully secure people’s personal information. For a digital ecosystem to be viable and responsible, it is essential to strike the correct balance between innovation, convenience, and privacy.4
- Singh, Shiv Shankar. “PRIVACY AND DATA PROTECTION IN INDIA: A CRITICAL ASSESSMENT.” Journal of the Indian Law Institute, vol. 53, no. 4, 2011, pp. 663–77. JSTOR, http://www.jstor.org/stable/45148583. Accessed 14 June 2023. ↩︎
- https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3270933/ ↩︎
- https://www.legalserviceindia.com/legal/article-5404-right-to-privacy-in-digital-era-a-study-with-indian context.html ↩︎
- https://www.legalserviceindia.com/legal/article-5404-right-to-privacy-in-digital-era-a-study-with-indian context.html ↩︎
