Privacy and Privacy Law in India By Prashant Mali

Privacy & Privacy Law in

IndiaAdvocate Prashant Mali[M.Sc. (Computer Science), LLM, Ph.D.(Persu.)]Legal Counsel & Expert ww.prashantmali.com | @CyberMahaGuru

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The term privacy seems to have been derived from the Latin word privatus, which means isolated, restricted, personal or peculiar. - (Traupman, 1995)

What is Privacy ?


It is the right of the individual to determine when, how, and to what extent there should be disclosure of the information.- (Westin, 1967)

Privacy Contd..


Privacy is control over information or activities relating to oneself; Privacy can be considered as a “derivative” right i.e. privacy right is derived from other related rights;

In India majority understand Privacy only in context of Sex and Wealth. Sometimes with password too

Legal or Philosophical Viewpoints on Privacy


Indian culture is more about sharing. Everyone wants to know everything. Decisions are typically taken by elders in the family. Privacy is viewed more as a tort.

The right of privacy in the light of constitution restricting unauthorized searches and seizures; and

A viewpoint that privacy is not a basic requirement of our society.

- (Ebenger, 2004)

Viewpoints Contd..


Only the information owner makes the decision about the disclosure of the information. For instance, the privacy would deemed to be compromised if an employee working in a government tax office views the records of someone else out of personal interest.

Privacy as Control over Information


The Supreme Court in the case of R. Rajagopal v. State of Tamil Nadu , for the first time directly linked the right to privacy to Article 21 of the Constitution and laid down:

"The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has aright to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages.“ R. Rajagopal v. State of Tamil Nadu, cited at: 1994 SCC (6) 632.

Case Law


The Supreme Court in the case of Ram Jethmalani v. Union of India categorically held that the right to privacy also requires the state not to make public any private information about an individual, which would violate her privacy.

Ram Jethmalani v. Union of India, cited at: (2011) 8 SCC 1.

Case Law


The Information Technology Act, 2000 have two sections relating to Privacy:

Section 43A, which deals with implementation of reasonable security practices for sensitive personal data or information and provides for the compensation of the person affected by wrongful loss or wrongful gain.

Section 72A, which provides for imprisonment for a period up to 3 years and/or a fine up to Rs. 5,00,000 for a person who causes wrongful loss or wrongful gain by disclosing personal information of another person while providing services under the terms of lawful contract.

Privacy Law as it stands in India


The IT Act,2000 has provisions that permit the interception, monitoring, and decryption of digital communications. It provides for the collection and monitoring of traffic data. It allows the government to set the national encryption standard.

Projects like the Central Monitoring System, NATGRID, Phone & Internet Interception used by Police is making State surveillance at all time high.

Privacy violation by Law in India


Privacy Protection Bill, proposed legislation for a privacy and personal data protection regime in India.

This law when passed would regulate the collection and use of personal data in India, as well as surveillance and interception of communications.

Law in Pipeline since 2011


Citizens could not claim right to privacy as a fundamental right is the Government’s stand.

Supreme Court would decide in due course in the light of Article 21 whether it is a fundamental right.

Or The Supreme Court relies on eight-judge bench decision which in1954 ruled that right to privacy was not a fundamental right

Privacy as fundamental right


A Standing Committee on Information Technology (hereinafter referred to as the "IT Standing Committee"), Lok Sabha Secretariat in the 52nd Report on "Cyber Crime, Cyber Security and Right to Privacy" strongly emphasized the need to institute a legal framework on privacy.

Law makers view point


Violation of privacy should be looked from the perspective whether other intersecting cluster of rights have been violated or not.

The privacy right is derived from other clusters of rights.- ( Judith Jarvis Thomson, 1975)

The act of owning a picture provides a cluster of rights such as the right to sell it, the right to destroy it, the right to view it etc.- (Thomson)

Derivative Right


According to the eminent US law scholar William L. Prosser (1960), the invasion of privacy would deem to have occurred under the following four claims:

1. Intrusion upon Solitude or Seclusion, or into Private Affairs:

It would be considered a liability if the intrusion is not acceptable to a “reasonable person”.

Invasion of Privacy


2. Public Disclosure of Embarrassing Facts:

“The matter made public must be one which would be offensive and objectionable to a reasonable man of ordinary sensibilities.”- (Prosser, 1960)

3. Publicity in the False Light in the Public Eye:

Any false comments or opinions that are misleading and that cause a bad reputation (“false light”) can be sued for violation of privacy.

Invasion of Privacy


4. Appropriation of Name of Likeness for Advantage:

If anyone uses the name or likeness for benefit without consent may result in plaintiff claiming damages.

Invasion of Privacy


E-mailE-mail has become a de-facto mode of

communication for both personal and professional needs.The internet serves as the conduit through which global e-mail network operates. Before reaching the recipient mailbox, the message travels through intermediate devices and leased lines, known as hosts and routers, which are often operated and owned by third parties.-(O’Brien, 1999)

Privacy Considerations


A copy of the message might be stored in several devices as it passes through the origin device and server, to destination server and device. This so-called “store-and-forward” technology might be necessary for technical reasons but raises serious privacy concerns on the part of users. -(Rest, 1998)

Invasion of Privacy


Detection and prevention of these activities entail invading the privacy of citizens by accessing and sometimes monitoring their emails.- (Guirguis, 2001)

However, the balance needs to be maintained so that the right of privacy in e-mail communication is not unreasonably compromised.

Invasion of Privacy


Social Networking SitesWith the proliferation of networking

sites, the use of social media has become mainstream.-(Madden, 2012)

Even in the usage of social networking sites lay the basic privacy requirements, and users use the privacy settings of the social networking site to balance the competing desires of privacy and publicity.-(Metzger & Pure, 2009)


The body of case law in the area of Internet-related technology “is still relatively sparse, and only a handful of courts have had occasion to grapple with the rapidly evolving nature of privacy within social networking sites”.- (Pure, 2013)

Invasion of Privacy


The social awareness has to be enhanced about the risks of posting private information on such platforms.

In addition, the technical controls in the protection of information need to be reassessed and reconfigured to more stringent requirements.

Invasion of Privacy


The legal battle focused on two aspects: the perceived privacy and the deemed security for the citizens.In Apple’s opinion, the desire to create a computer program that would alter the technical controls implemented for the protection of information amount to creating a back-door that could also be used by the hackers to compromise the security of devices used by other customers.

Apple vs. FBI – Intl Case Law


Theoretically, a process known as “Decapping” might allow recovering the cryptographic keys from the device by physical intervention in the transistors and other micro hardware elements. In FBI’s opinion, the information obtained from a device used by the terrorist could provide valuable clues and links regarding the terrorist network, thereby diminishing the probability of more attacks on the citizens.

Apple V FBI .. Cont.


The technology companies will deliberately try to modify the security mechanism of their devices such that it would be impossible to access the contents of the device, even with a custom created computer program.

It has now become public information that security of the specific model of iPhone can be compromised as FBI has publicly stated that it has managed to gain access to the device used by the terrorist.

Will government move in the direction of creating legislation where it would be mandatory for the technology companies to keep a back-door?

Apple V FBI (3 Considerations)


The concept of privacy is very fluid, and the laws related to this topic are murky and subjective.The rise of social media and other social networking sites have resulted in users voluntarily or involuntary disclosing private information to the public. In India we need cultural revolution to decimate idea of Privacy.If The Privacy Protection Bill becomes Law, India would need mass awareness program to enlighten citizens and Netizens.

Conclusion


THANK YOU

ADV. PRASHANT MALIEmail: [email protected]

Web site: www.prashantmali.comContact Details: +91-9821763157

Privacy and Privacy Law in India By Prashant Mali

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