Privacy rights and Data protection

By

Y SRINIVASA RAO, Judicial Officer.

Introduction:—

India has a strong, competitive print and electronic media. Electronic media is now a days a popular tool. The media has largely responsible and more importantly, it wishes to act responsibly. There is no strict guideline to handle the issue of casting couch which is a direct hammers individual privacy. Despite the print media has been placed under the supervision of the Press Council, there is need for choosing effective measures of supervision – supervision not control. It is well settled that right to life guaranteed under Article 21 is not mere animal existence. It is a right to enjoy all faculties of life. As a necessary corollary, right to life includes right to healthy life.” Indian Constitution recognizes the right to privacy. But the right to privacy in terms of Article 21 of the Constitution is not absolute right. In Govind v. State of Madhya Pradesh and Anr. 1975 SCR (3) 946, it was held: “Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest.” (See.Para 31). With regard to data protection and privacy, the study of the provisions of Information Technology Act,2000 are much significance. In India, specific standards for the method of assimmilation of right of privacy and data is become a challenge. A specific enactment is essential in order to establish specific standards relating to right to privacya and data protection because Information Technology Act,2000 faces problem to that effect.


Shreya Singhal v. Union of India – AIR 2015 SC 1523:- In this case, the Apex Court struck down Section 66A of the Information Technology Act, 2000, relating to restrictions on online speech, as unconstitutional on grounds of violating the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India. The Hon’ble Supreme Court held that online intermediaries would only be obligated to take down content on receiving an order from a court or government authority. The case is considered a watershed moment for online free speech in India
Balance between the right of a citizen and the right to privacy:- Under Indian Constitution, Article 21 protects the right to privacy and promotes the dignity of the citizens of India. Article 19(1)(a) of the Indian Constitution provides the right to freedom of speech and expression. As per Article 19 of the Constitution, person is free to express his will about certain things. In Kharak Singh Vs. State of UP- the majority judgment observed thus: “The right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.” With the expansive interpretation of the phrase “personal liberty”, this right has been read into Article 21 of the Indian Constitution. See. R. Rajagopal vs State Of T.N 1994 SCC (6) 632. As was observed in Sharda v. Dharmpal – AIR 2003 SC 3450, maintaining balance between the right of a citizen and the right to privacy is vey essential.


Rights of a private party and public right with reference to right to privacy of a person:


In M. Vijaya v. The Chairman, Singareni Collieries and Ors. reported in AIR 2001 (AP) 502, the court, upon a detailed discussion of the competing rights of a private party and public right with reference to right to privacy of a person suspected of suffering from AIDS, held:
“There is an apparent conflict between the right to privacy of a person suspected of HIV not to submit himself forcibly for medical examination and the power and duty of the State to identify HIV infected persons for the purpose of stopping further transmission of the virus. In the interests of the general public, it is necessary for the State to identify HIV positive cases and any action taken in that regard cannot be termed as unconstitutional as under Article 47 of the Constitution, the State was under an obligation to take all steps for the improvement of the public health. A law designed to achieve this object, if fair and reasonable, in our opinion will not be in breach of Article 21 of the Constitution of India.


The following issue was examined by the Nariman Committee which considered:
“…where (in such cases) there is destruction/damage to properties and loss of lives or injuries to persons –
(i) the true measures of such damages
(ii) the modalities for imposition of such damages and…” (p.2 of the Report)
These guidelines shall cease to be operative as and when appropriate legislation consistent with the guidelines indicated above are put in place and/or any fast track mechanism is created by Statute(s).


Mr. F.S. Nariman Committee has suggested certain modalities:- So far as the role of media is concerned the Mr. F.S. Nariman Committee has suggested certain modalities which are essentially as follows:
a) The Trusteeship PrincipleProfessional journalists operate as trustees of public and their mission should be to seek the truth and to report it with integrity and independence.


b) The Self Regulation Principles

A model of self-regulation should be based upon the principles of impartiality and objectivity in reporting; ensuring neutrality; responsible reporting of sensitive issues, especially crime, violence, agitations and protests; sensitivity in reporting women and children and matters relating to national security; respect for privacy.


c) Content Regulations

In principle, content regulation except under very exceptional circumstances, is not to be encouraged beyond vetting of cinema and advertising through the existing statues. It should be incumbent on the media to classify its work through warning systems as in cinema so that children and those who are challenged adhere to time, place and manner restraints. The media must also evolve codes and complaint systems. But prior content control (while accepting the importance of codes for self restraint) goes to the root of censorship and is unsuited to the role of media in democracy.


d) Complaints Principle

There should be an effective mechanism to address complaints in a fair and just manner.

e) Balance Principle
A balance has to be maintained which is censorial on the basis of the principles of proportionality and least invasiveness, but which effectively ensures democratic governance and self restraint from news publications that the other point of view is properly accepted and accommodated.
Data protection :- Normally, The term data protection is used to describe both the operational backup of data and business continuity/disaster recovery. Data protection is the process of safeguarding important information from corruption, compromise or loss. The importance of data protection increases as the amount of data created and stored continues to grow at unprecedented rates. Storage technologies that can be used to protect data include a disk or tape backup that copies designated information to a disk-based storage array or a tape cartridge device so it can be safely stored.

Data protection trends:- Data protection capabilities integrated into hyper-converged infrastructure are replacing a range of devices in the data center. Traditional backup methods have been used to protect data from ransomware because This type of malware, which holds data hostage for an extortion fee, is a growing problem. Copy Data Management (CDM) can speed up application release cycles, increase productivity and lower administrative costs through automation and centralized control.
Date protection and privacy is a challeging issue:- Data privacy laws and regulations vary from country to country and even from state to state, and there’s a constant stream of new ones. China’s data privacy law went into effect June 1, 2017. The European Union’s General Data Protection Regulation (GDPR) goes into effect in 2018. Compliance with any one set of rules is complicated and challenging. In India, Information Technology Act,2000 was introduced but it is not an effective enactment to deal with all issues relating to data protection and privacy. Presently, India does not have any express legislation governing data protection or privacy. In the present Globalization, Information Technology Act, 2000 and the Indian Contract Act, 1872 are not sufficient to meet all situations with regards to right to privacy. A codified law on the subject of data protection is to be introduced in India urgently. Of course, The Government has notified the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011. The Rules only deal with protection of “Sensitive personal data or information of a person”, which includes such personal information which consists of information relating to:- Passwords; Financial information such as bank account or credit card or debit card or other payment instrument details; Physical, physiological and mental health condition;Sexual orientation;Medical records and history; and Biometric information.
It is significant to see that The Information Technology Act, 2000 deals with the issues relating to payment of compensation (Civil) and punishment (Criminal) in case of wrongful disclosure and misuse of personal data and violation of contractual terms in respect of personal data. The right to privacy has been developed by the Supreme Court over a period of time. A bench of eight judges in M.P. Sharma v. Satish Chandra – AIR 1954 SC 300. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule.


The Government of India notified the Information Technology (Procedures and Safeguards for Blocking for Access of Information) Rules, 2009, under section 69A of the IT Act, which deals with the blocking of websites. The Government has blocked the access of various websites. The scope of section 69 of the Information Technology Act includes both interception and monitoring along with decryption for the purpose of investigation of cyber-crimes. Section 43 of the IT Act, imposes a penalty without prescribing any upper limit. Section 10A was inserted in the IT Act which deals with the validity of contracts formed through electronic means which lays down that contracts formed through electronic means “shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose’’. Section 72 of the IT Act provides for penalty for breach of confidentiality and privacy.


Conclusion:-

There are differing views as to whether the media (particularly the electronic media) has exercised its right and privilege responsibly. But generalisations should be avoided. The important thing is that the electronic (and print) media has expressed (unanimously) its wish to act responsibly. Regulation of the media is not an end in itself; and allocative regulation is necessary because the ‘air waves’ are public property and cannot technically be free for all but have to be distributed in a fair manner. However, allocative regulation is different from regulation per se. All regulation has to be within the framework of the constitutional provision. However, a fair interpretation of the constitutional dispensation is to recognize that the principle of proportionality is built into the concept of reasonableness whereby any restrictions on the media follow the least invasive approach. While emphasizing the need for media responsibility, such an approach would strike the correct balance between free speech and the independence of the media. A balance has to be maintained which is censorial on the basis of the principles of proportionality and least invasiveness, but which effectively ensures democratic governance and self restraint from news publications that the other point of view is properly accepted and accommodated. So far as the role of media is concerned the Mr. F.S. Nariman Committee has suggested certain modalities which are very essential to tackle the present situation. Suffice it to say that the Information Technology Act, 2000 is an act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as “electronic commerce”, which involve the use of alternative to paper- based methods of communication and storage of information to facilitate electronic filing of documents with the Government agencies. In the best piece of free speech news since 1960, In Shreya Singhal v. Union of India – AIR 2015 SC 1523, the Supreme Court struck down Section 66A of the IT Act, that criminalised “grossly offensive”, “menacing” and “annoying or inconvenient” speech over the internet. There has been a substantial degree of commentary about the judgment over the last two days. In this post, I will attempt a detailed excavation of the many fascinating strands of the judgment, from the point of view of free speech doctrine.

IT Act

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