Right to Privacy: Issues and Challenges (Part II)
RIGHT TO PRIVACY: ISSUES AND
CHALLENGES (PART II)
Aditya Sethi, 4th Year, BA.LLB
(Hons.), School of Law, Christ University
Editorial Note: In continuation of
the previous blog post, the author continues his observations relating to the
various issues and challenges which exist in relation to the operationalisation
of the right to privacy.
The earlier part is available here.
Data Protection And Interaction with Right to Privacy
In light of the Puttaswamy
decision, safeguarding personal information collected by the State and private
agencies for governance becomes the foremost consideration. Justice Chandrachud
observed that‘informational control
empowers the individual to use privacy as a shield to retain personal control
over information pertaining to the person.’[1]Justice Nariman reflected
that the ‘idea of privacy reflects to a
person’s mind’ and ‘any unauthorized
dissemination of material that is present to him’ may cause infringement of
this right.’[2] Justice Kaul noted that a
significant aspect of informational privacy is the right of the individual to
know ‘what the data is being used for’
with the ‘ability to correct or amend it.’[3]
The highlight
of the Puttaswamy case is based on the paradigm of consent model for data
protection. As a matter of fact, consent is placed in the realm of
incontrovertible rights as it empowers an individual to take control of his
information which is collected, stored and disseminated for various purposes.
In the present context, the claim for the idea of privacy is threatened by the
challenges of technological forces and modern digital economy.
i. Difficulty in containing data of individuals who
have not consented for sharing it with a third party.[4]
ii. Data collection impacts societal values which
implicates political and emotional behavior. There exist algorithms capable of
inferring the possible turnout of an election and also the political leanings
of voters.[5]
iii. The ability of the privileged minority to
anticipate the possible incursions to their privacy should not be the basis of
data protection. The challenge remains to conduit social inequalities and seek
redressal against such discriminations.[6]
It is significant that privacy
should be seen in the context of a social value which finds balance[7]
between rights and the common good. Regulatory authorities must focus on a
structural framework that caters to ethical boundaries for collection, storage
and dissemination of personal data. The
State is mandated to define a new paradigm of privacy rights for its citizens
through an unprecedented regime focused on addressing the inequities of privacy
through preventive and remedial options.
Decriminalization of Section 377 and Rights of Queer Persons
A
five judge bench in Navtej Singh Johar v.
Union of India[8]
partially struck down Section 377 of the Indian Penal Code, 1860 on grounds of
it being manifestly arbitrary and also violative of Articles 19 and 21 of the
Constitution. The decision in Puttaswamy surfaced
the way for intersection between privacy and rights of queer persons. The Court
observed that Section 377
curtailed the personal liberty of LGBT persons to engage in voluntary and
consensual sexual relationships with a partner of their choice in a safe and
dignified environment, thereby inhibiting them from entering and nurturing
enduring relationships.[9]To
deny the members of the LGBT community the full expression of the right to
sexual orientation is to deprive them of their entitlement to full citizenship
under the Constitution.[10]
The
Court placed reliance on NALSA v Union of
India[11]
which indicated the rationale for grounding a right to privacy in the
protection of gender identity within the ambit of Article 15 and locates a
constitutional right to privacy as an expression of individual autonomy,
dignity and identity under Article 21 of the Constitution.
This decision extends the scope of rights beyond mere decriminalization of Section 377. The
challenge remains for the State to address structural issues of sensitizing the
government, society and the medical establishments to accept the changing
social dynamics. It remains to be seen how issues concerning marriage,
adoption,[12] sexual harassment at
workplace, housing and employmentare brought within the purview of a structured
legal framework.[13]
Compromise of Financial Information
The Puttaswamy
decision acknowledges that ‘technology has made life interconnected’ but it
also takes into account the complex considerations that arise in this age of
information. With the advent of sophisticated technology, service providers are
now acquainted with methods to track consumer information such as their
employment history, income, insurance cover, investments, financial goal plan,
liabilities, etc. This has resulted in the invasion of an individual’s private
information on financial matters which is not intended to be shared. Several
instances have been reported where personal data has been compromised.[14] The propensity of undesirable aggregation and
gross misuse of personal information raises significant concerns.
In consideration of
complexity in moderating the contours of technology in data practices, the nine
judge bench laid down comprehensive standards upon which the test of viable
data protection, protection of individual autonomy and informational privacy,
especially on financial matters should stand.
i. Legitimacy
of Data Collection: This standard
delves into the legitimacy of collection and use of personal data, including
financial data.[15] The data protection regime must adopt an
objective view while collecting financial information of an individual. The
information must be utilized for its intended purpose and not otherwise.
ii. Principle
of Non-discrimination: Data practices
must be regulated such that financial information is preserved in consonance
with the requisite needs of the consumer and in a manner that there is no
discrimination on the basis of ethnicity, racial, religious or political
considerations.[16]
iii. Prevent
Misuse of Surrendered Financial Information: Suitable measures need to be implemented through
appropriate regulations to ensure that personal information surrendered by
individuals for their financial gains is not used against them.[17]
It
is thus clear that acomprehensive data protection regime must encapsulate a
regulatory practice to address the concerns of the consumers and enhance
India’s financial ambitions within the realm of the constitutional framework.
Artificial Intelligence and Right to Privacy
Protecting privacy in the backdrop of socio-technical systems has also added
complex nuances in a world dominated by Artificial Intelligence. Machine
learning algorithms are increasingly being used by companies on text, image,
voice and transactional data to understand consumer behavior and accordingly
recommend products and services. The
ingenuous idea of privacy safeguarded by informed consent is diluted when
companies intend to infer information which an individual has no intention to disclose.[18] Over the last decade, the uses of machine
learning algorithms have caused harm to their human subjects. These algorithms
curtail ones’ choices and actions by curating upon biased data to replicate and
match preferences of the users.[19]
Machine learning algorithms have incredible potential
to be utilized for constructive purposes like the prevention of the spread of
epidemics[20], detect lung cancer and
research on the nature of subatomic particles.[21]
Also, the Government of India in 2016 established the National Media Analytics
Centre and set up a tool called Project
Insight to predict and assist tax officials to predict tax defaulters
without raiding their homes.[22]Additionally, it is important to educate
and create awareness amongst the communities to hold algorithmic systems
accountable in the event of erosion of privacy and human autonomy.
The underlying advantages of the socio-technical
systems cannot underscore the right of privacy of the common citizens.
Therefore, it becomes the responsibility of both the government and technology
companies to adopt better practices to ensure transparency and accountability
in protecting data privacy and security both online and offline.
Women’s Rights and Privacy
The Puttaswamy
decision has regarded sexual and reproductive autonomy as essential
values protected by the right to privacy. This judgment will have a significant
impact on laws dealing with abortion in India. Sections 3 and 5 of the Medical
Termination of Pregnancy Act, 1971 prohibit abortion at any stage of pregnancy.
If the right to abort has to be
legally recognized, then it would become important to ascertain the extent to
which the State would intervene in this right. The Pre- Natal Diagnostic
Techniques Act, 1994 criminalizes sex
determination. However, the question
arises that if procreative decisions
are within the domain of privacy, then should a woman be prevented from gaining
information that would enable her to make that choice.[23]The
other significant challenge is the aspect of compensated surrogacy which is
expressly prohibited under the Surrogacy (Regulation) Bill, 2016 on notions of
public morality which is otherwise a reasonable ground for violating the right
to privacy.[24]
Conclusion
The development of
the law of privacy in India has appreciably been pushed back on account of
cultural, social and situational differences in the understanding of the notion
of privacy. In its current form, the contours of privacy span the sanctity of family life, marriage,
procreation, dietary preferences and sexual orientation.
With the
technological advancements and digital governance, the informational privacy of
the citizens has come under serious consideration. The expert committee on data
protection headed by Justice BN Srikrishna has submitted its Report to the
Government of India incorporating necessary provisions of the EU General Data
Protection Regulations. There is an urgent need for
comprehensive laws at multiple levels of governance to include security, cyber
& IT, telegraphy, etc at the state machinery level as also categorizing the
zones of personal information of the citizens into intimate, private and public
for appropriate utilization in matters of governance.
The
personal data of citizens collected by the State and private authorities needs
to be accurate periodically updated and guarded. At the same time, stringent
laws governing the utilization of this data need to be evolved to ensure
informational and physical privacy.
[1] K.S Puttaswamy v. Union of India,
¶142.
[2] K.S Puttaswamy v. Union of India,
¶364.
[3] K.S Puttaswamy v. Union of India,
¶472.
[4] Steven Englehardt, ‘No
Boundaries: Exfiltration of Personal Data by Session-replay Scripts’, Freedom
to Tinker, 15 November 2017, available at:
https://freedom-to-tinker.com/2017/11/15/no-boundaries-exfiltration-of-personal-data-by-session-replay-scripts/.
[5] Dana Feldman, ‘Election Day Dominated Facebook with Over
716 M Election - related Interaction’s, Forbes, 9 November 2016, available
at: https://www.forbes.com/sites/danafeldman/2016/11/09/election-day-played-out-on-facebook-with-over-716m-election-related-likes-posts-comments-shares/#24d959f6241f.
[6] Stephen Nellis, ‘App Developer Access to iPhone X Face Data
Spooks Some Ptivacy Experts’, Reuters, 2 November 2017, available at:
https://uk.reuters.com/article/us-apple-iphone-privacy-analysis/app-developer-access-to-iphone-x-face-data-spooks-some-privacy-experts-idUKKBN1D20DZ.
[7] ColinBennet&Charles Raab, ‘The Governance of Privacy: Policy
Instruments in Global Perspectives,’ Cambridge, MA: MIT Press (2006).
[8] Navtej Singh Johar v. Union of
India, Writ Petition (Criminal) No. 76 of 2016.
[11] National Legal Services Authority
v. Union of India, (2014) 5 SCC 438.
[12] Namrata Mukherjee, ‘Section 377 Verdict: NavtejJohar v. Union of
India opens doors for broader rights for the LGBTQ community,’ Firstpost,
07 September 2018, available at: https://www.firstpost.com/india/section-377-verdict-navtej-johar-vs-union-of-india-opens-doors-for-broader-rights-for-the-lgbtq-community-5137251.html
[13] Avik Biswas & Savithran
Ramesh, ‘Supreme Court Recognizes Rights Of The LGBT Community,’ Infolex News
Alert, Indus Law, 18 September, 2018, available at: http://www.manupatrafast.in/NewsletterArchives/listing/Induslaw/2018/September-2018%20--%20SUPREME%20COURT%20RECOGNIZES%20RIGHTS%20OF%20THE%20LGBT%20COMMUNITY.pdf.
[14] K Kemp, ‘Big Data, Financial Inclusion and Privacy for the Poor,’ IFMR Blog,
22 August 2017.
[15] K.S Puttaswamy v. Union of India,
¶66.
[16] K.S Puttaswamy v. Union of India,
¶178.
[17] Richard Posner, ‘Privacy
Surveillance and Law,’ University of Chicago Law Review, Vol. 75, pp. 245-60.
[18] Emre Sarigol et al, ‘Online Privacy as a Collective Phenomenon’,
Proceedings of the Second ACM Conference on Online Social Networks, pp. 95-106.
[19] Kristian Lum and Wiiliam Issac,
‘To Predict and Serve’, Significance,
Vol. 13, pp. 14-19, available at:
[20] Datakind Bangalore’s Third
DataDive: Charting Success in Social Good,’ DataKind, 5 October 2017, available
at: https://www.datakind.org/blog/datakind-bangalores-third-datadive-charting-success-in-social-good.
[21] P Baldi et al, ‘Searching for Exotic Particles in High
–energy Physics with Deep Learning,’ Nature Communications, available at:
https://www.nature.com/articles/ncomms5308.
[22] Shruti Srivastava, ‘Holiday Posts on Instagram Are Tipping Off
India’s Taxman,’ Bloomberg Technology, 27 July 2017.
[23] Nivedita Menon, ‘Abortion as a Feminist Issue’, Outlook, 12 May 2012.
[24] Aparna Chandra, Privacy and
Women’s Rights, Economic and Political Weekly, Vol. 52, Issue 51.
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