ABSTRACT
“Privacy is not something that I’m merely entitled to, it’s an absolute PREREQUISITE” a famous quote said by Marlon Brando.[1] Privacy rights ensure control over our data. It is related to you so you must have control over it. But with the expanding uses of the internet and other social media sites, breaches of information are bound to happen thus turning the web into sophisticated sites of stalking people. There also are many privacy laws designed to protect personal data from the government and businesses. The rise of the internet has led to the formulation of complex privacy laws which seem to be limited only to paper. The right to privacy additionally intersects with many other human rights consisting of freedom of expression, the right to seek, receive and impart records and freedom of association and assembly. Today, the right to privacy is taken into consideration to be an identifiable human right with established characteristics deserving legal recognition and protection, although the scope of such legal safety continues to be being determined.
The international stance on data privacy seems to be undetermined due to the change in demographics and the ease of access to the internet and the pertaining laws for redressal. Yet some countries like the US cover this aspect and raise concerns related to it in the international assemblies. The following article covers all the possible aspects and dimensions of privacy encroaching the national and international measures used to maintain the human dignity that finds its fullness in the right to privacy. The authors have given a brief analysis of the recurring breaches of data security and possible reasons behind it.
Introduction
Prior than we get into a complete discussion of right to Privacy to begin with we want to recognize what the phrase Privacy implies. Actually there is no such general definition of Right to Privacy is mentioned but when we define “Privacy” as per New Oxford English Dictionary[2] it says that “absence or avoidance of publicity or display; the state or condition from being withdrawn from the society of others, or from public interest; seclusion”. Black law[3] also defined Privacy as “the right to be let alone; the right of a person to be free from unwarranted publicity; and the right to live without unwarranted interference by the public in matters with which the public is not
necessarily concerned”. Earlier if we see the lines of privacy law in India, it’s been a very arguable topic that whether or not it need to be treated as a fundamental right or a civil right but after the landmark judgment of K.S.Puttaswamy v. Union of India [2015
(8) SCALE 747], right to privacy is a Fundamental right has turn out to be a settled law of land. As per part III of India’s Constitution, Fundamental rights are the basic rights that each individual is entitled to, and such rights need to be present with every citizen of the country with appropriate remedies. The right of Privacy is the most exceptional rights amongst all the rights enlisted in the constitution as the provisions in the constitution validate its importance that even during an emergency the president and the government can forego all the rights except article 20 and 21.[4] So, why the Right of Privacy is so important and needed? It can be simply define as Privacy protects us from arbitrary and unjustified use of power via states, groups and different authorities. And around a hundred and fifty (150) countries wide constitutions mention the right to privacy.
India and Right to Privacy
In history India’s law regarding safety simplest from physical dangers which includes trespass from which the Right to property emerged to protect his house and farm animals. This was taken as to be the Right to life. Because the ever changing common law grew to deal with the problems confronted by using the humans, it became found out that not only physical security required, however also protection of the non secular self in addition to of his feelings, sense was required.
Landmark Judgment of K.S.Puttaswamy v. Union of India
In this particular case a write petition filed against a project launched by government “Aadhar Card scheme” in Supreme Court, it was stated that the criteria in Aadhar is violating the Fundamental Rights of Privacy. As it was includes all the personal information of individuals and also the biometric. It also stated that the government planned to create a surveillance nation which is violets one right to be free and feature freedom in his personal life. Although the case was under trail for a long period of 5 years but in 2017, the most awaited case of Puttaswamy v Union of India verdict has came unanimously by nine-judge bench of the Supreme Court that citizens of India have a fundamental right to privacy although it isn’t always evidently stated but it have to be interpreted from the textual content and the process under which the constitution makers could have drafted the charter for the country.
Article 21
Right to life with dignity is given to the citizens of India as well as the foreign alike under Article 21[5] of the Indian Constitution. According to this Article “Protection of Life and Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law”. These are the some pointes from the Article 21:-
- Article 21 provides two rights:
Right to life
Right to personal liberty
- The fundamental right furnished via Article 21 is one of the most important rights that the Constitution ensures.
- This Article has been stated as Heart of the Fundamental Rights by the Supreme Court of India.
- The right to life is not just about the right to survive. It additionally entails being able to live a complete life of dignity and that means.
- The main intention of Article 21 is that when the right to life or liberty of a person is taken away through the state, it should best be in keeping with the prescribed procedure of regulation.
In the case of Unni Krishnan vs. State of Andhra Pradesh (1993)[6] The Supreme Court of India upheld the elevated interpretation of the right to life. There was a list given by the Court that covers rights under Article 21, and here are the some Rights:-
- Right to privacy
- Right to go abroad
- Right to shelter
- Right against solitary confinement
- Right to social justice and economic empowerment
- Right against handcuffing
- Right against custodial death
- Right against delayed execution
- Doctors’ assistance
- Right against public hanging
- Protection of cultural heritage
- Right to pollution-free water and air
- Right of every child to a full development
- Right to health and medical aid
- Right to education
- Protection of under-trials
Threat to the Privacy “Technology”
There are as much as disadvantages of technology as compare to advantage in the era of Digitalization, there are many negative aspects that cope with privacy and the internet. While in the conversation on a famous platform like Whatsapp, Facebook, Instrgram and many social networks doesn’t provide as much privacy protection as needed. Despite the fact that people might think that their profiles are “private” they truly aren’t. A few greater disadvantages of privacy and the internet are theft of private information, spamming, and virus threats. Whilst you use the internet non-public statistics may be stolen via many people.
Some challenges that pose as the greatest threat to the right to privacy in the right times are:-
- Telephone tapping- The term Phone tapping refers to the unwanted activity in which listening conversation of others with the intention of getting information and other activities. It is mentioned in PULC case[7] that, Orders for telephone tapping may additionally simplest be issued through the home Secretary of the central government or state government. And in emergency this power could be given to an officer of the
Home Department of the central or state government, with a hard copy that has to sent to the concerned Review Committee.
- Data protection in the telecom sector- Section 29[8] of Personal Data Protection has defined as “Personal data means data about or relating to a natural person who is directly or indirectly identifiable, having regard to any characteristic, trait, attribute or any other feature of the identity of such natural person, or any combination of such features, or any combination of such features with any other information”.
- Real-Time tracking- For tracking traffic vehicles, GPS[9] is become most common and easy ways to tackle it. Even though it is a high-quality technology, it’s far quite feasible that a person’s right to privacy may be violated all through the manner, as this technology provides adequate information after inspecting the activities of a person. Therefore it would not be wrong if I say that GPS tracking have two prospective of both positive and negative aspects.
Aarogya setu and violation of Privacy–
In the eve of COVID-19, Government of India has launched an app (Aarogya setu)[10] in which it is compulsory for the individuals to link their name, age, profession, sex and phone number to the geolocation data, basically a absolute information about them so that this app can assess their location rapidly and with the help Bluetooth advanced tech. to record the connection of contact with the other person. This simply says that the government will much more about yourself than anyone else so when the government knows more about you than your parents, surely you would ask: is this legal? You should ask this question to yourself.
International interventions and conventions-
The Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR)[11] conveyed the importance of right to privacy as a fundamental right yet failed to direct its immediate execution. In 2010 as per the report published by the special reporters the issues on privacy remained unnoticed. Yet some resolutions were drafted in surge to bring about a revolution in this era of information technology and artificial intelligence to make people comfortable on the privacy of their information one of them being the resolution adopted by the human rights council on 23 March 2019 stated “The right to privacy in digital age”. Data
revolution was seen as one of the main factors for the fulfilment the sustainable development goals (SDG’s) to be accomplished by 2030.The United Nations Development programme asserted the need of lawful ,legitimate and fair use of data.
With the increase in the number of users on social media networking sites, the privacy of people is vulnerable to intimate attacks carried out by activist organizations which can sometime even be state sponsored. But this becomes all the more sophisticated when the government itself proposes to monitor the activities of the general public.
Giving the readers a quick gist of the laws on privacy drafted by the United States of America and the People’s Republic of China.[12] The US Privacy act was laid on the principles of access to right information with least interference of the government into the privacy of the people .Whereas China does not have a well defined law for the privacy of the people that clearly defines its wide view towards the upcoming technology.
Having a look at some figures and instances that even brought the countries to awe. In India in January 2018 the unique identification authority of India and its aadhar system was hacked by unknown actors resulting in personal data of more than a 1 billion people available for sale which was earlier guaranteed by PM Narendra Modi as information available only to individuals. In march 2019 UNSC[13] reported that North Korea had used state sponsored hacking to evade international sanctions stealing $670 million in foreign currency between 2015 & 2018. That also led to breach of personal and confidential data. As per a report published by the Information and communications technology ministry of Ecuador when Patricio Real was in office, Ecuador faced more than 40 million cyber attacks. As per a report nearly 20% of the cyber attacks listed in the top 15 countries were carried out by DTAG sensors located in the Russian Federation. Data of over 8000 account holders of about 10 Pakistani banks was sold in the virtual market. In 2013, Singapore faced its largest cyber attack which was carried out by the Hacktwist organization “Anonymous” through its online handle known as the Messiah.
Being demographic specific to India with prevalence to the international companies operating in India there has been altering with the privacy of the individuals be it whatsapp or chinese partnered companies like tencent games that served the indian youth with games like PUBG and much more. As per thereport published by India tv on 3 September 2020 the Indian government banned more than 118 apps that included world famous apps like PUBG and tiktok which had more than 600 million downloads. The ground on which this jurisdiction was carried out was on grounds of data of the indian public without their permission. One thing that no company can ever justify is that though the promotion of an app or game is well within the visual capacity of the individual whereas the terms and conditions are portrayed in such a way that it cannot be even seen by the user. Sometimes some apps seem to be over user friendly by automatically assuming access to user’s information.
Whatsapp[14] that serves as the world’s leading instant messaging app brought a revolution in its working with its access to store user data. When this news came for the first time in public domain there was havoc on the internet. To soothe down the pacifying situation Facebook issued various official notices. The company assured the users that they will only store data pertaining to businesses such as invoices, phone numbers, transaction data ,etc. whereas the private messages and calls will remain end to end encrypted. The general public showed mixed reactions some moved to new softwares for instant messaging whereas some accepted the privacy policy. But bringing it to the
consideration of the audience that this is the same facebook that incurred a data breach that led to the data of more than 500 million facebook users being sold in the market of hackers and this was not the first time but it has suffered a data loss in December 2019 as was reported by a Ukrainian security researcher. According to him a database of more than 267 million users was available on the open internet. I know this may ring the users to a dilemma whether to accept the privacy policy or not but its important to reveal the truth. The decision lies on you.
Authors Perspective
Though this article cannot have a definite conclusion but stands open to the reader’s interpretation. Yet what the authors have in store for the readers is their perspective which might serve as guiding light to the readers to formulate their own too. The countries of the world and the Indian union has a well organized legal framework to handle the privacy of its people yet what lacks is proper implementation and removal of loopholes from the legal system that might be used by the companies to evade jurisdiction. Another factor that must be kept in mind is regulation on the internet and its uses, and a proper execution of criteria such as age, country etc. Efficient execution of judgement by the cybercell when and where needed.
[1] BrainyQuote “Marlon Brando Quotes”
[2] Anna Jonsson Cornell Oxford Constitutional Law
[3] Black’s Law Dictionary
[4] Right to live with dignity- Constitutionofindia.net
[5] Legal service India.com
[6] 1993 AIR 2178, 1993 SCR (1) 594- IndianKanoon.Org
[7] AIR 1997 SC 568, JT 1997 (1) SC 288, 1996 (9) SCALE 318, (1997) 1 SCC 301, 1996 Supp 10 SCR 321, 1997 (1) UJ 187 SC.
[8] Information Commissioner’s Office
[9] Global Positioning System
[10] Bar and Bench
[12] Office of privacy and civil liberties
[13] Arms Control Association
[14] The Hindu and India Times
