In the instant case, Google LLC preferred an appeal against the order of a single judge bench which had directed it to globally remove a content which was addressed as objectionable and offensive by the female petitioner. According to her, the content had been taken from her social media accounts (Facebook and Instagram) without her consent and posted on pornographic website.

The petitioner alleged that despite her privacy settings being activated, her photos had been taken from her accounts. Such an offence was violative of her privacy and was punishable under Section 67 of the IT Act.

The appellant had submitted that it had no issues against the directions of court in case of the petitioner, rather was aggrieved by the blanket template directions delivered by the bench under the shade of Information Technology (Intermediary Guidelines and Digital Ethics Code) Rules 2021.

According to the appeal, Google had been classified as a social media intermediary under the new IT Rules and was directed to remove a particular post and ones flagged like it globally within 24 hours.

The counsel submitted that the appellant sought for a protection against any coercive action upon its failure to take down particular posts as it is not an SMI. The counsel contended that being a search engine, it would not be covered under the definition of SMI under the IT Rules.

In furtherance to this, the counsel submitted that though the content may be offensive under the Indian Law, it might not be offensive in countries outside India, thus blanket order to remove the post could not be issued.

Lastly, the counsel submitted that due to such template directions, a bad precedent might be set. Had the petitioner approached the appellant, they would’ve dealt with the matter.

Based upon such blanket directions, the appellant had filed an appeal and sought for interim protection.

The post Our search engine is not a social media intermediary- Google before Delhi HC while seeking protection against IT Rules 2021 appeared first on LexForti .

These students initially filed the application in Delhi High Court challenging the 2016 privacy policy. The Court granted a partial relief stating that the data of those WhatsApp Users who delete WhatsApp before the 2016 policy came into effect- cannot be used for any purposes as laid down in the 2016 privacy policy.

Later, WhatsApp updated its user policy on January 4, 2021, in view of which this fresh affidavit was filed by the petitioners before the Supreme Court on January 5, 2021. After hearing the application, Supreme Court has sought response of the Central government, Facebook and WhatsApp in a plea challenging the privacy policy.

The post Supreme Court: WhatsApp may be a trillion-dollar company but people value their privacy. appeared first on LexForti .

The government cited ‘grave concerns’ regarding the absence of freedom of choice to the Indian users.

The government of India sent a letter to WhatsApp’s CEO Will Cathcart, where the Government claimed the presence of differential treatment to the Indian users when compared to its European Counterpart.

Letter stated:

The government seemed upset considering that, Indians didn’t receive the choice to opt-out of the changes made to the privacy policy.

The government emphasized the importance of informational privacy, data security, and freedom of choice.

It is pertinent to note that WhatsApp’s privacy policy in Europe prohibits the sharing of any information for its own purpose, while the same is absent in the Indian counterpart.

The post The Government of India has asked WhatsApp to withdraw its new privacy policy appeared first on LexForti .

The court opined that, until Court understands the issue at hand, it will not issue any notice.

Court stated that

Court asked the Petitioner to clarify the specific ‘data’, the Petitioner is having an issue with.

Petitioner responded that, browsing history is being analyzed by the app and then shared across for commercial usage.

Court responded that

Petitioner averred that, WhatsApp is exempting Europe and US from the said policy; but no such exemption is there for India.

Court reiterated:

Advocate Rohatgi on the Petition, advised Petitioner to go to the Parliament instead of High Court (Ref: on making laws)

Advocate on behalf of WhatsApp and Facebook: Sr Adv Kapil Sibal and Mukul Rohatgi

Advocate (Petitioner): Adv Chaitanya Rohilla

Background

WhatsApp updated it privacy policy on 4th January 2021. Users were forced to accept the newly formed Terms and Condition. If user denies the changes, it would simply terminate the user from availing the services. Later on, WhatsApp clarified that, if user denies the changes, it will not suspend any WhatsApp account.

The post “If you read WhatsApp policy you will be shocked to see, what have you consented for”: Delhi HC appeared first on LexForti .

Privacy has a long history of development; it is as old as mankind and has ever since evolved along with us. It is indispensable to understand the meaning of ‘privacy’ as it has always been different across times and spaces. The concept of Privacy is, fundamentally founded on the autonomy of oneself and the definition of private and to what extent it can be legally protected can also differ[1].

Thomas Cooley, for the first time, adopted the phrase “the right to be let alone”, in his Treatise on the Law of Torts[2]. Cooley stated while discussing personal immunity:

“the right of one’s person may be said to be a right of complete immunity; the right to be let alone.”[3]

Right to Privacy- Origin

The origin of Right to Privacy can be traced, traditionally from the difference between “public” and “private” when the distinction was made between oneself and the outer world for an individual. Of course, the limits between private and public differ according to the given era and society[4], which will cause ongoing change throughout the history of what people consider private.[5] Such division was also explained by the Greek philosopher Aristotle, who termed the public sphere of the political affair as ‘polis’ and personal sphere of human life as ‘oikos’. Aristotle made a good distinction between public and private matters and established a basis for curtailing the power of the government to control one’s activities in the public sphere. The distinction between public and private was followed throughout the evolution of the right to privacy. William Blackstone gave expression to the distinction in his Commentaries on the Laws of England (1765) in which he explained that private wrongs are always in the nature of civil injuries and breach of individual rights only but public wrongs are crimes and infringement of public and general rights in society. 

John Stuart Mill wrote an essay, ‘On Liberty’ (1859) describing the importance to preserve a space free from any governmental authority or restriction for the unhindered exercise of liberty. According to Mill[6]:

“The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”

John Mill proposed, speaking of a “struggle between liberty and authority”[7], that the absolutism of the majority can be regulated by recognizing the civil rights of an individual, for instance, free speech, freedom of assembly and expression, and right to privacy.

In the year 1890, Louis Brandeis and Samuel D Warren published an article, which helped built a foundation of law to assimilate within it, the right to life as “a recognition of man’s spiritual nature, of his feelings and his intellect”[8]. The scope of legal rights was enlarged and the right to life had “come to mean the right to enjoy life- the right to be left alone”. Brandeis and Warren explained the impact of technology on the right to be let alone as:

“Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone”. Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life, and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the housetops.” For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons …

The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.”[9]

Brandeis and Warren observed that:

“The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality.”[10]

Roscoe Pound explained the article of Brandeis and Warren as having done “nothing less than add a chapter to our law”[11]. However, another writer observed:

“The right to privacy was not new. Warren and Brandeis did not even coin the phrase, “right to privacy,” nor its common soubriquet, “the right to be let alone”.[12]

The right to be let alone forms a part of the right to enjoy life and the right to enjoy life is a part of the fundamental right to life guaranteed to an individual.

Lord Denning has forcefully argued for the recognition of a right to privacy thus:[13]

“English law should recognise a right to privacy. Any infringement of it should give a cause of action for damages or an injunction as the case may require. It should also recognise a right of confidence for all correspondence and communications which expressly or impliedly are given in confidence. None of these rights is absolute. Each is subject to exceptions. These exceptions are to be allowed whenever the public interest in openness outweighs the public interest in privacy or confidentiality. In every instance it is a balancing exercise for the Courts. As each case is decided, it will form a precedent for others. So a body of case-law will be established.”

International concepts of Privacy

Article 12- Universal Declaration of Human Rights (1948)- “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”[14]

Article 17- International Covenant of Civil and Political Rights (India is a party to)- “1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.”[15]

Article 8- European Convention on Human Rights- “1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary for a democratic society in the interests of national security, public safety or the economic well- being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”[16]

2.2 Privacy laws in US

Justice Brandei’s dissent from the judgment on the subject of Privacy, in Olmstead v United States[17] has been quoted frequently as “famous dissent” and cited affirmatively in various cases including Carpenter v United States[18] in which he observed:

“The makers of our Constitution understood the need to secure conditions favourable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope, and include the right to life and an inviolate personality- the right to be left alone- the most comprehensive of rights and the right most valued by civilized men. The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctions of a man’s home and privacies of life. This is a recognition of the significance of man’s spiritual nature, his feelings, and his intellect.”

Right to Privacy is not enumerated as a Fundamental Right in the U.S. Constitution and it contains no express provision. The Bill of Rights and the fourteenth Amendment, however, deals with specific provisions relating to the Right to Privacy, such as the privacy of beliefs in respect of religion, freedom of speech, press (1st Amendment)[19], the privacy of the home against demands that it be used for soldiers (3rd Amendment)[20], the privacy of the person and possessions (4th Amendment)[21], right against self- incrimination (5th Amendment), and the rights within the Bill not to deny other retained rights (9th Amendment)[22]. In addition to these, the liberty clause of the fourteenth amendment states, “No State shall … deprive any person of life, liberty, or property, without due process of law.”

The meaning of the ninth amendment has been analysed in several cases and interpreted precisely by Justice Goldberg in his concurrence opinion with the Court in Griswold v. Connecticut[23]in which the U.S. Supreme Court, in the year 1965, decided that the birth- control laws of Connecticut caused unconstitutional intrusion upon the right of marital privacy and reversed the impugned judgment in which the appellants were found guilty on the ground of violating the Fourteenth Amendment by giving information, medical advice to married persons as to the means of preventing conception and prescribing contraceptive devices.

Justice Goldberg referred to the arguments written by Mr Justice Story against a bill of rights and the meaning of the Ninth Amendment:[24]

“In regard to … a suggestion, that the affirmative of certain rights might disparage others, or might lead to argumentative implications in favour of other powers, it might be sufficient to say that such a course of reasoning could never be sustained upon any solid basis …. But a conclusive answer is, that such an attempt may be interdicted (as it has been) by a positive declaration in such a bill of rights that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people.”

Further, Justice Goldberg opined[25]:

“To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people….”

In Meyer v State of Nebraska[26], the right to study German or any other foreign language in a private, denominational, parochial or public school before successfully passing the eighth grade was recognized within the liberty of Fourteenth Amendment by the Supreme Court.

Justice McReynolds delivered the opinion[27]:

“While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated.

Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognised at common law as essential to the orderly pursuit of happiness by free men.

The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts …..”

In a similar case of Pierce v Society of Sisters[28], the obligation of every parent or guardian of a child (8-16 years old) to send him to only a public school to study was held to be violative of the Fourteenth Amendment as an unreasonable interference with the liberty of such parent or guardian by directing the upbringing of their children.

In the year 1969, in the case of Stanley v Georgia[29], the question, the U.S. Supreme Court had to decide was whether “a statute imposing criminal sanctions upon mere possession of obscene matter” is constitutional. The respondent contended that the freedom of speech or press under the First Amendment does not recognize obscenity and that the State is free to deal with the subject- matter, in limitation to the other provisions of the Constitution and further, argued that if the State can protect the body, then why not the mind of such citizen?

The U.S. Supreme Court held that mere private possession of obscene material is not a crime by virtue of the First and Fourteenth Amendments. Justice Marshall observed[30]:

“It is now well established that the Constitution protects the right to receive information and ideas. This freedom of speech and press … necessarily protects the right to receive …. This right to receive information and ideas, regardless of their social worth, is fundamental to our free society. Moreover, in the context of this case- a prosecution for mere possession of printed or filmed matter in the privacy of a person’s own house- that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwarranted governmental intrusions into one’s privacy.”

One of the most celebrated judgments of all times in the judicial history of U.S. in the context of Right to Privacy is Roe v Wade[31] in which Jane Roe, a pregnant single woman instituted a federal action against the district attorney of Dallas County challenging a Texas criminal abortion law which made aborting a fetus, a felony unless “on medical advice for the purpose of saving the life of the mother”. The law was challenged on the grounds that it violated the guarantee of liberty under the Fourteenth Amendment and right to privacy under First, Fourth, Fifth and Ninth Amendments. 

Justice Blacknum delivered the majority opinion of the Court and observed that[32]:

“State criminal abortion laws, like those involved here, that except criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life, each of which interests grows and reaches a “compelling” point at various stages of the woman’s approach to term.”

Justice Harlan, in Moore v East Cleveland[33] explained the meaning and significance of liberty, guaranteed under the Constitution, accurately and observed that no law can curtail the right to privacy on arbitrary and meaningless grounds. It was observed in this regard that[34]:

“The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, … and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs to be asserted to justify their abridgement.”

In this case, Mrs Moore lived in her East Cleveland home together with her son and two grandsons. In the year 1973, she received a notice, from the city, for violation of an ordinance which limited the occupancy of a dwelling unit to only the members of a family and that it did not recognize one of her grandsons as her family as a result of which the city had charged a criminal charge against her. The question before the Supreme Court was whether the Due Process Clause of the Fourteenth Amendment violated the ordinance of East Cleveland. The Court held the Constitution excluded any general power of State to force all to live in defined narrow family patterns and observed[35]:

“… Even if conditions of modern society have brought about a decline in extended family households, they have not erased the accumulated wisdom of civilization, gained over the centuries and honored throughout our history, that supports a larger conception of the family …

Whether or not such a household is established because of personal tragedy, the choice of relatives in this degree of kinship to live together may not lightly be denied by the State …”

The Court, in Cruzan v Missouri Department of Health[36] recognized the right of an individual within the definition of liberty, to make decisions … when the parents and co-guardians of Nancy Cruzan sought the order from the Court to withdraw their daughter’s artificial nutrition and hydration procedures after it was confirmed by the doctor that there was no chance of recovery from her persistent vegetative state. The Supreme Court of Missouri held that Nancy’s parents did not have the rightful authority to make such a decision because there was no convincing evidence of the patient’s desire for the withdrawal of her life- support system and relied on a Missouri Living Will statute which embodied a state policy strongly favouring life preservation. The issue to be decided by the U.S. Supreme Court was whether the United States Constitution grants an individual “right to die” within the meaning of liberty in the Fourteenth Amendment. To decide the competency of a person for his constitutionally protected right of liberty to refuse unwanted medical treatment, the Court referred to various decisions, for instance, in Jacobson v Massachusetts[37], the Court decided in favour of individual’s liberty of refusing an unwanted smallpox vaccine against State’s interest in preventing disease.

The U.S. Supreme Court held that, in the present case, the testimony adduced at the trial and the evidence taken on record did not prove the consent of the patient to withdraw her life support system in any manner and therefore the judgment of the Supreme Court of Missouri was affirmed.

Justice Kennedy delivered the opinion of the Court[38]:

“Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”

In Lawrence v Texas[39]police officers, in Houston (Texas) were sent to a private residence due to reported weapons disturbance where they found the petitioners involving in some sexual activity. Both the petitioners were arrested, held in police custody overnight and charged and convicted under a Texas penal code which provided that any person engaging in certain intimate sexual conduct with another person of the same sex would be committing an offence. Following were the three issues to be decided by the U.S. Supreme Court[40]:

“1. Whether Petitioners’ criminal convictions under the Texas “Homosexuality Conduct” law- which criminalizes sexual intimacy by same-sex couples, but not identical behaviour by different-sex couples- violate the Fourteenth Amendment guarantee of equal protection of laws?

2. Whether Petitioners’ criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?

3. Whether Bowers v Hardwick, 478 U.S. 186 (1986), should be overruled?”

While discussing its own decision in Bowers v Hardwick[41], the Court concluded its own failure to appreciate the extent of the liberty at stake. It also observed that to state that the question before the Court in Bowers case was only to adjudicate upon the right of individuals of the same sex to engage in sexual activity undignifies the claim of an individual, just as it would demean a married couple if it would be said that the aim of a marriage is only to obtain the right to have sexual intercourse. It was held by the Court[42]:

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

Development of Right to Privacy in the Indian Context

For the first time, the question whether the right to privacy is a Constitutionally protected right was adjudicated by the Supreme Court when an investigation was ordered by a search warrant into the affairs of a company on grounds of an attempt to embezzle funds, concealment of the true state of its affairs from the state- holders, fraudulent transactions and falsification of records. The search- warrants issued were challenged on the grounds that they violated the Fundamental Right under Arts 19(1)(f) and 20(3) of the Constitution. Reference was made to U.S. Supreme Court judgment[43] in which it was observed that incriminating evidence found by illegal searches and seizure violated the Fourth and Fifth Amendments of the American Constitution. It was held that the Fundamental Right against self- incrimination was not offended by search and seizure and the following observation was made by Justice Jagannadhadas:[44]

“A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the Fourth Amendment, we have no justification to import it, into a totally different fundamental right. by some process of strained construction. Nor is it legitimate to assume that the constitutional protection under Article 20(3) would be defeated by the statutory provisions for searches.”

In the year 1963, in Kharak Singh v State of Uttar Pradesh[45], a writ petition under Article 32 of the Constitution was filed challenging the constitutional validity of the surveillance, the petitioner had been subjected to by virtue of the power conferred upon police officials under the provisions of U.P. police Regulations. The challenge was raised on the ground that such provisions violated the Fundamental Rights guaranteed to the citizens. In Kharak Singh, the Supreme Court had the occasion to decide whether the right to privacy can be inferred from the existing Fundamental Rights in the constitution, such as Arts. 19(1)(d), 19(1)(e) and 21. The six- judge bench adjudicated the petition for the right to privacy as,[46]

“The right of privacy is not a guaranteed right under our Constitution, arid therefore the attempt to ascertain the movements of an individual is merely a manner in which privacy is invaded and is not an infringement of a fundamental right guaranteed in Part III.”

Justice Subba Rao, however, held that the Fundamental Rights enshrined in Part III of the Constitution have overlapping areas and hence, dissented from the majority view for if a man is shadowed, and his movements are under the scrutinising gaze of a policeman, it cannot be described as a free movement and the whole country is his jail. Thus, it was observed that:[47]

“No doubt the expression “personal liberty” is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression “personal liberty” in Article 21 excluded that attribute. In our view, this is not the correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another.

The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person’s fundamental right under Article 21 is infringed, the state can rely upon a law to sustain the action; but that cannot be a complete answer unless the said law to satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned.

In other words, the State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does amount to a reasonable restriction within the meaning of Article 19(2) of the Constitution. But in this case, no such defence is available, as admittedly there is no such law. So the petitioner can legitimately plead that his fundamental rights both under Article 19(1)(d) and Article 21 are infringed by the State.”

Justice Subba Rao realised the need for recognizing the right to privacy as Fundamental Rights declared in Part III of the constitution and further observed:[48]

“Further, the right to personal liberty takes in not only a right to be free from restrictions placed on his movements but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a Fundamental Right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life…….”

A contemporary evolution of Right to Privacy

In Govind Singh v State of Madhya Pradesh[49], the Supreme Court appraised the right to privacy in a more detailed and elaborate manner when the validity of the provisions of Madhya Pradesh Police Regulations empowering District Superintendent to lead domiciliary visits both at day and night and to place a person under regular surveillance if such person shows the conduct of leading a life of crime, was challenged on the ground that the provisions of domiciliary visits offended Arts. 19(1)(d) and 21 of the constitution. The Court contemplated the issue of privacy by way of several measures and upheld regulations in question for the regulations were “procedure established by law”, in terms of Article 21. JusticeMathew, speaking for the bench, thus observed:[50]

“The right to privacy, in any event, will necessarily have to go through a process of a case- by- case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterise as a Fundamental Right, we do not think that the right is absolute.”

Further, it was observed:

“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 the restriction on the basis of compelling public interest.”[51]

The Supreme Court, in R. Rajagopal v State of Tamil Nadu[52], undertook to determine whether a citizen of this country can prevent another person from writing his life story or biography and does such unauthorised writing infringe the citizen’s right to privacy. The court, while delivering the judgement went over to the constitutional protection of privacy decided in Kharak Singh[53] and Govind[54] case which appears from the following[55]:

“… The first decision of this Court dealing with this aspect is Kharak Singh v. the State of U.P. [(1964) 1 SCR 332: AIR 1963 SC 1295 : (1963) 2 Cri LJ 329 ] A more elaborate appraisal of this right took place in a later decision in Gobind v. the State of M.P. [(1975) 2 SCC 148: 1975 SCC(Cri)468] wherein Mathew, J. speaking for himself, Krishna Iyer and Goswami, JJ. Traced the origins of this right and also pointed out how the said right has been dealt with by the United States Supreme Court in two of its well- known decisions in Griswold v. Connecticut [381 US 479: 14 L Ed 2d 510 (1965)] and Roe v. Wade [410 US 113: 35 L Ed 2d 147 (1973)] …”

The Court asserted that the right to privacy has acquired a constitutional status[56]; it 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 left alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters.[57]

The right to privacy has several aspects. One such aspect is the right to procreate. This is also known as “the right of reproductive autonomy”. The right to use condoms, the right of a woman to abort, all these falls within the ambit of the right to privacy.[58]

Cases that arise at the junction of medical jurisprudence and right to privacy have been, also dealt by the Supreme Court at various times, one among them being Mr X v Hospital Z[59].In this case, the appellant, who was a doctor in the health service of the state, was detected to be HIV+ at the time he was tested for a blood donation. The status of his HIV+ status was unauthorizedly disclosed by the hospital without taking into account their duty to maintain the privacy of a patient. Justice Saghir Ahmad delivered the judgment, which was based on the right to privacy under Article 21 and the Directive Principles[60]:

“Disclosure of even true private facts has the tendency to disturb a person’s tranquillity. It may generate many complexes in him and may even lead to psychological problems. He may, thereafter, have a disturbed life all through. In the face of these potentialities, and as already held by this Court in its various decisions referred to above, the right of privacy is an essential component of the right to life envisaged by Article 21. The right, however, is not absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others.”

The Supreme Court made reference to the above- mentioned cases and in the People’s Union of Civil Liberties v Union of India[61], observed:

“We have, therefore, no hesitation in holding that right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed “except according to the procedure established by law.”

The right to privacy is a constitutionally protected right with a bundle of several other rights, one of which is the “Right to productive autonomy” which was interpreted as a part of Article 21 and was amalgamated in the Indian Jurisprudence in the case of B. K. Parthasarthi v State of Andhra Pradesh[62]. It was observed that ‘the right of reproductive autonomy’ means the personal decisions of the individual about the birth and babies, and that it is a facet of a ‘right of privacy.’

Justice K S Radhakrishnan, in National Legal Services Authority v Union of India[63] explained the ambit of Article 21 as follows:

“Article 21 is the heart and soul of the Indian Constitution, which speaks of the rights to life and personal liberty. Right to life is one of the basic fundamental rights and not even the State has the authority to violate or take away that right. Article 21 takes all those aspects of life which go to make a person’s life meaningful. Article 21 protects the dignity of human life, one’s personal autonomy, one’s right to privacy, etc. Right to dignity has been recognised to be an essential part of the right to life and accrues to all persons on account of being humans. In Francis Coralie Mullin v. UT of Delhi[(1981) 1 SCC 608: 1981 SCC (Cri) 212] (SCC pp. 618-19, paras 7 and 8), this Court held that the right to dignity forms an essential part of our constitutional culture which seeks to ensure the full development and evolution of persons and includes “expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings… [64]

Article 21, as already indicated, guarantees the protection of “personal autonomy” of an individual. In Anuj Garg v. Hotel Assn. of India [(2008) 3 SCC 1] (SCC p. 15, paras 34-35), this Court held that personal autonomy includes both the negative right of not to be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in. Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India[65]”

Fundamental Right to Privacy

Issue

The Government of India, in the year 2009 operationalized the Unique Identification Authority of India (“UIDAI”) as an attached office of the Planning Commission (now NITI Aayog) by notification in the official gazette. In 2015, UIDAI was attached to the Department of Electronics & Information Technology of the then Ministry of Communication and Information Technology. Finally, the UIDAI was established as a statutory authority under the Aadhar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 on 12 July 2016.

UIDAI was created with the objective to issue Unique Identification numbers (UID), named as “Aadhaar”, to all residents of India that is (a) robust enough to eliminate duplicate and fake identities, and (b) can be verified and authenticated in an easy, cost-effective way.[66]

In the year 2012, Justice K. S.Puttaswamy(retired) filed a petition in the Supreme Court challenging the constitutional validity of Aadhar card scheme of the Union Government on the ground that it violated the Right to privacy which was a constitutionally protected value, by aiming to build a database of every individual’s identity and biometric information. The registration of one’s identity had become mandatory for filing tax returns, opening bank accounts, securing loans, buying and selling property or even making purchases of 50,000 rupees and above.

Reference to a larger Bench

The Attorney- General representing the government, in the opposition argued that there, in fact, was no Fundamental Right to privacy manifested in the Constitution of India which was, also unanimously decided by an eight- judges bench in M. P. Sharma v Satish Chandra[67]and a majority of four judges in Kharak Singh v State of Uttar Pradesh[68]. Hence, observing a crisis of constitutional interpretation,a three- judges bench adjudicating the matter, on 11 August 2015, decided that since, the case enabled the court to re-visit the basic principles of the Constitution hence, to maintain the institutional integrity and judicial discipline, the matter should be referred to a larger bench. Hence, the Bench of three learned judges observed in its order dated 11 August 2015:[69]

“12. We are of the opinion that the cases on hand raise far-reaching questions of importance involving the interpretation of the Constitution. What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21.

If the observations made in M. P. Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality.

At the same time, we are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncement made by larger Benches.

With due respect to all the learned Judges who rendered to their Lordships concern for the liberty of human beings, we are of the humble opinion that there appears to be a certain amount of apparent unresolved contradiction in the law declared by this Court.

13. therefore, in our opinion to give a quietus to the kind of controversy raised in this batch of cases once for all, it is better that the ratio decidendi of M. P. Sharma (supra) and Kharak Singh (supra) is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength.”

Finally, in 2017, a five- judges Constitutional Bench considered it appropriate that the matter be referred to be heard to a Constitutional Bench of nine- judges. The order dated 18 July 2017 of the Constitutional Bench read as:[70]

“During the course of the hearing today, it seems that it has become essential for us to determine whether there is any fundamental right of privacy under the Indian Constitution. The determination of this question would essentially entail whether the decision recorded by this Court in M. P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors. – 1950 SCR 1077 by an eight- Judge Constitution Bench, and also, in Kharak Singh vs. The State of U. P. and Ors. – 1962 (1) SCR 332 by a six- Judge Constitution Bench, that there is no such fundamental right, is the correct expression of the constitutional position.

Before dealing with the matter any further, we are of the view that the issue noticed hereinabove deserves to be placed before the nine-Judge Constitution Bench. List these matters before the Nine- Judge Constitution Bench on 19.07.2017.”

The nine-Judge of the Constitutional Bench of the Supreme Court under took the responsibility to decide the jurisprudential correctness of the previous decisions of the Supreme Court and whether right to privacy is a constitutionally protected value and hence, delivered six separate opinions to conclude the landmark judgment.

Criticism of Privacy Doctrine

The Attorney General of India, Mr. K. K. Venugopalan, on behalf of Union of India submitted in the Court and argued his criticism for the recognition of the general right to privacy as a Fundamental Right in the below-given manner:

• the Constitution does not define right to privacy as a fundamental right;
• no Fundamental Right includes whole of the right to privacy and where any constituting facet of privacy is covered by a Fundamental Right, such facet shall be protected;
• if facets of privacy are covered by the protection of liberty under Article 21, such rights falls within the scope of reasonable restrictions in public interest;
• privacy does not have any peculiar definition or meaning; and
• the drafting committee of the Constitution consciously did not enumerate right to privacy in the Fundamental Rights of Part III and the scope of liberty was cut off to personal liberty.

Final Decision

View of Court on Privacy

Various observations were made by different judges, who comprised the bench in the Court. Justice Chandrachud, in his judgment, held that no Fundamental rights guaranteed by Part III of the Constitution, including Right to Privacy can be contained in watertight compartments and that they are not independent of each other. He discussed the positive and negative aspect of the right to privacy; positive aspects place in motion the legislative framework to work properly and that it can bar others from interfering in one’s personal space whereas the negative aspect curtails the limit of unfair approach. He has also made several observations about the status of privacy and its interconnection with the dignity of human life and the freedom of self- determination and its role in the digitalized economy.

For Justice Chelameswar, the right to privacy has three aspects, first is repose (freedom from unwarranted stimuli), second is the sanctuary (protection from observation) and, last is an intimate decision (freedom for making one’s own personal decisions). Justice Nariman further substantiates the concept observed by Justice Chelameswar by endorsing Gary Bostwick’s conceptual interpretation of privacy. He classified it into three categories namely invasion of the physical body of an individual by State, use of unauthorised personal information and, the privacy of making a choice by oneself.

Justice Bodbe, on the other hand, grounds two fundamental aspects of the right to privacy: (1) restriction on the exercise of legislative powers and, (2) conditions for an individual’s development. In this manner, he recognizes and acknowledges both the negative and positive aspects of the implementation of any fundamental right under Part III of the Constitution. 

Justice Kaul recognized the right to exercise the claim against the State and non- State individuals and identified surveillance, profiling and general data generation and the collection as a breach of such right to privacy by both State and non- State actors. He, also observed that it may also affect the freedom of speech and expression as a resultant. Thus, Justice Kaul suggested, in his observation the need to protect such private information from both. Justice Sapre made his observation around the four corners of the Preamble of the Indian Constitution and the principles of fraternity, dignity and, liberty.

Test for Infringement of Privacy

The Supreme Court has, after its majority decisions in cases of MP Sharma and Kharak Singh against the recognition of the right to privacy as a fundamental aspect of the Constitution itself helped evolve privacy as an important part of the Indian jurisprudence by interpreting Article 21 of the Constitution as its origin and that such right can be denied only on the ground of “procedure established by law” which is fair, just and reasonable.

Justice Chelameswar, in his judgment, highlighted the need of reasonableness while dealing with the Fundamental rights, guaranteed under part III although every different right can be handled in a different fashion. He suggested an enumeration of tests that can be well used in cases which can be put to test privacy infringement taking into account other rights that are affected simultaneously. Therefore, an enquiry of “reasonableness” implicating Article 14 for the privacy violation due to arbitrary action of the State would be put through its paces; the violation of privacy within the meaning of freedoms guaranteed under Article 19would attract specific restrictive provisions like obscenity, public order etc; and the principle of just, fair and reasonable are put to play when there is any intrusion to one’s life or personal liberty which is the foundation of privacy guarantee in the Indian Constitution.

Significantly, Justice Chelameshwar suggested the fourth test for privacy infringement which is the “highest standard of scrutiny” and applies in compelling state interest cases. This scrutiny standard is borrowed from the U.S. where the standard is contained for discrimination cases in which one has to not only go through and satisfy the test of “just, fair and reasonable” within the meaning of Article 21 but an outstanding level of importance in respect of the interest of the government in case of infringement of privacy.

Justice Nariman compliments to the above analysis by observing that the limitation on the right to privacy can be put through its paces by a set of rights being violated. He suggested that the test of unreasonableness and arbitrariness shall apply if the infringement of Article 21 (right to life and personal liberty) read with Article 14 (right to equality) took place, or the provision given under Article 19(2) shall apply if the violation of Article 21 read with Article 19(1)(a) occurs. In this manner, Justice Nariman clarified and observed that every case should be analysed on its individual merit within the circumference of the jurisprudence under the important significant rights.

Justice Sapre brought another perspective to the restrictions on the right to privacy mentioned in Article 8 European Convention on Human Rights with variation to some degree. He stated that the State has the authority to put reasonable restrictions on the exercise of the right to privacy on the grounds of compelling social, moral and public interest within the ambit of the law. Since a number of fundamental rights, for instance, right to equality, right to freedom of speech and expression do not acknowledge public interest to be a well-grounded reason of restriction, therefore such restrictions do not have any textual basis and hence, lack clarity of standards of tests.

Justice Chandrachud, in his judgment, borrowed the concept of proportionality which is used to balance the rights of an individual and the compelling interests of the public under the European law and observed that any violation of the provisions of Article 21, in order to be valid, must meet the following three essentials: (1) legality, i.e. the law must be in existence; (2) reasonable object, i.e. the object of such restriction must be legitimate like national security, public interest; and (3) proportionality of the object with the aim sought to be achieved.

Justice Kaul observed “proportionality” test as the check on restrictions on the exercise of the right to privacy with a slight difference from Justice Chandrachud. He necessitated (1) legality, (2) necessity, (3) proportionality and (4) procedural safeguards to prevent unreasonable restriction on the exercise of a right which is concurrent to “procedure established by law” under Article 21.      

Therefore, it was unanimously observed by the nine judges of the bench that the privacy right cannot be an absolute right, although we do not have a clear test to assess and check the unreasonableness of the violations. It was made clear that the claims of the violations of the right to privacy shall be put to its paces under the available standards under the Indian Constitution to determine its legality and that the concept of proportionality shall develop with the subsequent decisions of the Court.   

Conclusion

With the large interpretation of the ambit of right to privacy, the Court has manifested its willingness to accept a wider range of claims. The Court has peculiarly observed that the circumference to exercise one’s right to privacy shall be subject to the merits of the case and that the claims shall be decided against other compelling public interests.

The decisions of such cases, in absentia of peculiar restrictions to Fundamental Rights, shall lie in the hands of the judiciary. For example, whether a law on marital rape to protect the personal affairs of a family constitute an infringement to the dignity of a married woman guaranteed under Article 21 of the Constitution?

Whether criminalisation of any sexual act between two consenting adults amounts to the violation of their right to life and personal liberty along with other Fundamental Rights? Does restitution of conjugal rights under the Hindu Marriage Act, 1955 and Special Marriage Act, 1954 infringe the right to privacy? The actual test of the right to exercise privacy would be dependent on the decisions of the Courts to decide above and like matters involving varied questions by the application of the decision taken in Puttaswamy case.

Bibliography

Primary Source:

• Acts and Bills
• The Constitution of India, 1949
• Constitution (1^st Amendment) Act, 1951
• Constitution (16^th Amendment) Act,1963

• Books
• V.N. Shukla’s ‘Constitution of India’; 12^th Edition by MahendraP.Singh, Eastern Book Company
• Dr. J.N. Pandey, ‘The Constitutional Law of India’, 49^th Edition, Central Law Agency
• Durga Das Basu, ‘Commentary on the Constitution of India’, 9^th Edition, Lexis Nexis
• P.M. Bakshi, ‘Commentary on the Constitution of India’, Enlarged Edition, Universal Law Publishing Co.
• Jagadish Swarup &Dr. L.M. Singhvi, ‘Constitution of India’ 3^rd Edition, Thomson Reuters.
• H.K.Saharay, ‘The Constitution of India – An Analytical Approach’, 4^th Edition, Eastern Law House.

Secondary Source:

• Websites and Links
• www.scconline.com
• www.manupatra.com
• www.judis.nic.in/chejudis
• http://www.earlyenglishlaws.ac.uk
• http://www.gktoday.in
• https://www.law.cornell.edu

http://www.legalservicesindia.com/article/1630/Right-To-Privacy-Under-Article-21-and-the-Related-Conflicts.html

https://indianexpress.com/article/explained/m-p-sharma-and-kharak-singh-the-cases-in-which-sc-ruled-on-privacy-4756964/

http://www.ebc-india.com/lawyer/articles/96v3a2.htm

https://www.uidai.gov.in/about-uidai/about-uidai.html

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html

https://www.ssoar.info/ssoar/bitstream/handle/document/54766/ssoar-indrastraglobal-2017-11-bhandari_et_al-An_Analysis_of_Puttaswamy_The.pdf?sequence=1

https://supreme.justia.com/cases/federal/us/277/438/

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/griswold.html

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/Meyer%20v%20Nebraska%20%281923%29.html

https://www.law.cornell.edu/supremecourt/text/268/510

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/stanley.html

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/moore.html

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/cruzan.html

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/lawrencevtexas.html

http://www.un.org/en/universal-declaration-human-rights/

http://www.cirp.org/library/ethics/UN-covenant/

https://human-rights-law.eu/echr/article-8-echr-right-to-private-life-family-life-correspondence-and-home/

http://publicatio.bibl.u-szeged.hu/10794/7/3188699.pdf

https://www.thoughtco.com/right-to-privacy-history-721174

[1]For example- a person can find physical touch of all manners, a mere physical contact in a bus, an encroachment of one’s private space. Such physical contact, although cannot be considered privacy infringement of a private person.

[2] Thomas Cooley, Treatise on the Law of Torts (1888), 2^nd edition

[3] Ibid, at page 29

[4] Szabo 2005. p. 45

[5] American law professor Daniel Solove made an illustrative example to present the on- going change regarding what people consider private: even the aspects of life that nowadays are commonly considered as private (the family, the body and the home, etc.) had been through considerable changes as initially they were far from being private. For example, marriage was initially considered to be a contract, while nowadays it is one of the most intimate decisions made by the individual. See more: Solove, D. J.: Conceptualizing privacy.

California Law Review Vol. 90, No. 4. (2002) pp. 1132- 1140.

[6] John Stuart Mill, On Liberty, Batoche Books (1859), at page 13

[7] Ibid, at page 6

[8] Warren and Brandeis, “The Right to Privacy”, Harvard Law Review (1860), Vol.4, No 5, at page 193

[9] Ibid, at pages 195- 196

[10] Ibid, at page 205

[11] Dorothy J Glancy, “The Invention of the Right to Privacy”, Arizona Law Review (1979) Vol. 21, No. 1, at page 1.

[12] Ibid, at pages 2-3

[13]Lord Denning, ‘What Next in Law‘ (1982)

[14]http://www.un.org/en/universal-declaration-human-rights/

[15]http://www.cirp.org/library/ethics/UN-covenant/

[16]https://human-rights-law.eu/echr/article-8-echr-right-to-private-life-family-life-correspondence-and-home/

[17]Olmstead v United States 277 U.S. 438 (1928)

Evidence of a conspiracy was obtained by the government by secretly tapping telephone lines and it was held that such a method of obtaining evidence did not violate the Fourth Amendment.

[18]Carpenter v United States 585 U.S.  (2018)

A U.S. Supreme Court landmark decision which held accessing past records of physical locations of cell phones without a warrant violative of the Fourth Amendment.

[19] 1^st Amendment- Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

[20] 3^rd Amendment- No soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

[21] 4^th Amendment- The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[22] 9^th Amendment- The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

[23]Griswold v. Connecticut 381 U.S. 479 (1965)

[24]Griswold v. Connecticut 381 U.S. 479 (1965)

[25]Griswold v. Connecticut 381 U.S. 479 (1965)

[26]Meyer v State of Nebraska 262 U.S. 390 (1923)

[27]Meyer v State of Nebraska 262 U.S. 390 (1923)

[28]Pierce v Society of Sisters 268 U.S. 510 (1925)

[29]Stanley v Georgia 394 U.S. 557 (1969)

[30]Stanley v Georgia 394 U.S. 557 (1969)

[31]Roe v Wade 410 U.S. 113 (1973)

[32]Roe v Wade 410 U.S. 113 (1973)

[33]Moore v East Cleveland 431 U.S. 494 (1977)

[34]Moore v East Cleveland 431 U.S. 494 (1977)

[35]Moore v East Cleveland 431 U.S. 494 (1977)

[36]Cruzan v Missouri Department of Health 497 U.S. 261 (1990)

[37]Jacobson v Massachusetts 197 U.S. 11 (1905)

[38]Lawrence v Texas 539 U.S. 558 (2003)

[39]Lawrence v Texas 539 U.S. 558 (2003)

[40]Lawrence v Texas 539 U.S. 558 (2003)

[41]Bowers v Hardwick, 478 U.S. 186 (1986)

[42]Lawrence v Texas 539 U.S. 558 (2003)

[43]Boyd v. United States, 116 US 616 (1886)

[44]M. P. Sharma v Satish Chandra 1954 AIR 300

[45]Kharak Singh v State of Uttar Pradesh AIR 1963 SC 1295

[46]Kharak Singh v State of Uttar Pradesh AIR 1963 SC 1295

[47]Kharak Singh v State of Uttar Pradesh AIR 1963 SC 1295, at pages 356-357

[48]Kharak Singh v State of Uttar Pradesh AIR 1963 SC 1295, at pages 356-357

[49]Govind Singh v State of Madhya Pradesh AIR 1975 SC 1378

[50]Govind Singh v State of Madhya Pradesh AIR 1975 SC 1378

[51]Govind Singh v State of Madhya Pradesh AIR 1975 SC 1378

[52]R. Rajagopal v State of Tamil Nadu AIR 1995 SC 264

[53]Kharak Singh v State of Uttar Pradesh AIR 1963 SC 1295

[54]Govind Singh v State of Madhya Pradesh AIR 1975 SC 1378

[55]R. Rajagopal v State of Tamil Nadu AIR 1995 SC 264

[56]R. Rajagopal v State of Tamil Nadu AIR 1995 SC 264

[57] In an American case, Jane Roe v Henry Wade, 410 US 113, the U.S. Supreme Court has observed regarding the right to privacy:

“Although the Constitution of the U.S. does not explicitly mention any right of privacy, the U.S. Supreme Court recognizes that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution, and that the roots of that right may be found in the First Amendment, in the Fourth and Fifth Amendments, in the penumbras of the Bill of Rights, in the Ninth Amendment, and in the concept of liberty guaranteed by the first section of the XIV Amendment and that the “right to privacy is not absolute.”

The Supreme Court of India has taken into consideration the U.S. position and Article 8 of the European Convention on Human Rights.

[58] These matters have been discussed in the U.S.A. In Roe v Wade,the U.S. Supreme Court observed that: “The Constitution does not explicitly mention any right of privacy. In a line of decisions, however…… the court has recognised that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.”

[59]Mr X v Hospital Z (1998) 8 SCC 296

[60]Mr X v Hospital Z (1998) 8 SCC 296, at page 305 (para 21)

[61]People’s Union of Civil Liberties v Union of India AIR 1997 SC 568

[62]B. K. Parthasarthi v State of Andhra Pradesh AIR 2000 AP 156

In Skinner v. Oklahoma, 316 US 535, the U.S. Supreme Court characterised the right to reproduce as a “one of the basic civil rights of man.”

In Griswold v Connecticut, 381 US 479, the constitutionality of a statute which sought to restrict the right of married persons to use contraceptive devices fell for the consideration of the Court. The majority of the American Supreme Court held that this statute impermissibly limited the ‘right of privacy’ of the married persons.

[63]National Legal Services Authority v Union of India (2014) 9 SCC 1

[64] Ibid, at page 490 (para 73)

[65] Ibid, at page 491 (para 75)

[66]https://www.uidai.gov.in/about-uidai/about-uidai.html

[67]M. P. Sharma v Satish Chandra (1954) SC 1077

[68]Kharak Singh v State of Uttar Pradesh AIR 1963 SC 1295

[69]Justice K. S. Puttaswamy (retd) v Union of India (2015) 8 SCC 735

[70]Justice K. S. Puttaswamy (retd) v Union of India– Order dated 18-07-2017

The post Right to Privacy in India appeared first on LexForti .

Abstract

The use of the Internet for “online shopping”, content browsing & reading and also social networking seems to have become a part of normal life over the last century. While “Internet technology” provides several opportunities towards users, some of the quite significant drawbacks is connected to the growing ability for internet monitoring of users’ activities. Even so, electronic monitoring techniques are becoming increasingly aware of the users, resulting in their rising importance for privacy rights. The manner people interpret the extent of privacy protection once they are online affects several factors. This article offers a study of factors influencing “Internet users” understanding of privacy. Prior online data privacy work related to “e-business” centered mainly on the data privacy aspect and it was associated about how an online organization gathers, stores and manages confidential data from customers. The main purpose of this article is to provide an overview of the data perception elements of various Internet users across multiple realms of privacy, and even some of its possible conceptualization. Furthermore, study about the data protection laws and date security techniques.

Keywords: online privacy, data protection laws, data security, data security techniques

Introduction

“Online privacy” is indeed an essential part of this age. While the Internet has expanded and evolved in the last fifteen years, there has been a greater risk of fraud or identity theft. Once you add the threat of bank fraud, viruses, malware, and the proliferation of “social media”, safeguarding your confidential info on the web is more relevant than ever. In general, most users are now using the Internet in a certain way. Probably you can use the “online banking” to establish automatic payments. If we are posting daily on Instagram, or on Facebook keeping up with our school mates. we were probably just browsing the web for the latest news and sporting results. The way you use the Internet; there’s your personal data for all to search online. The latter in itself is a fearsome thing. Although while we have never pressed a mouse, signing up to a newsletter, or created a social media page, there will always be “bits” and pieces that can be found online by others. Moreover, this knowledge possibly would lose value without our permission. Users will probably want to shield their data from corporations to use this for their personal benefit, of course. There are several times, though, where data stored will find things simpler for someone like to search and shop by using the internet. For example, details can be exchanged with multiple parties relevant to your “credit history” or “car insurance”, and the Network enables that to occur easily and effectively. If users take out a “loan”, the creditor will check online, that will evaluate all relevant information on their payment records (from either the number of “credit cards” and unpaid bills, all the reason to liquidation documents). Such data sharing isn’t necessarily in their better interests, still. If we were already utilizing our “laptop”, “tablet” or even “smartphone”, these will monitor and control our online behavior to evaluate our features. Our position, the internet sites, or adverts we click on it will be encrypted, those we disregard, and far more. This knowledge is then essentially sold for profit-and it may eventually end up elsewhere. Sometimes internet users would be consistently rated in today’s society, obviously, it depends mostly on the probability that they will be prospective buyers. So it’s understandable why we want to protect our privacy details for any of these purposes alone.[1]

Online Privacy

“Internet privacy”, also known as “online privacy”, encompasses the privacy rights with reference to reusing, encrypting, providing third – party vendors, and communicating data about ourselves through the use of the internet. This also impacts the amount of protection of private demise accepted for publication via the web and seems to be a wide-ranging concept that relates to a range of activities, considerations but also innovations often used safeguard confidential and sensitive schedule, priorities, as well as communication services. Even though “e-commerce” continues to begin to gain web-based traction, online privacy has now become incredibly essential for businesses and “IT service provider” management. People and businesses proceed for being vulnerable to risks but also infringements with confidentiality, even as danger of data coming further into arms of “cyber criminals” is higher now than before. “Online privacy” is a major concern for online consumers who intend to open social media platforms, create an “online purchase”, even participate engage in “online games”, because they just want to protect their identity. The “identity” of a victim can still be taken away or even used dishonestly by “cybercriminals” that merely negotiate the login details of the victim.[2]

The privacy delinquent

Two major contributing factors to the internet privacy dilemma:

• The intrinsically accessible, undetermined essence of the internet and
• The difficult and complicated, seepage-prone sharing of data from several Web-based payments involving the exchange of complex, private data.[3]

We should compare the Internet to conventional, locked, probabilistic multi-access structures, along with large companies, to understand the very first aspect. Hardly established customers with such a set of predetermined advantages could even connect source data within such frameworks. Mostly on the other hand, the internet is indeed an amazing way wherein information is made available to multiple as well as subjective unauthorized individuals. Instances of the second reason include applications involving interactions between people and the government, customer service-business, “business-business”, and corporate-government. In most of these frameworks, private details submitted to something like a specific group by a service provider may have been exposed to one or more of these parties. Besides the underlying functionality including its process.[4]

The protection of Web privacy does have a major effect on several Online practices and online services. From those, two of the greatest illustrations are “e-business” as well as electronic administration. Throughout the “e-business” sense, breaches of privacy appear to be correlated mainly of sales tactics. Classic problems occur whenever companies collect, store, process, and share expectations of its consumer’s aim of providing personalized products or services. Such clients in several instances don’t openly approve companies in using one’s confidential info. Furthermore, there is indeed a reasonable fear which businesses would be compelled to reveal personal information about customers through the court. For instance, in the “Recording Industry Association of America (RIAA) v. Verizon (summer 2002)” the “music recording industry” pressured ISPs into revealing IP information about the user who reportedly had pirated music. Digital administration seems to be another group of operating systems where online privacy has become a critical problem. Governing agencies gather, store, process, and communicate private information regarding thousands of citizens. Privacy of a person is something like by legislation that should be implemented by government entities as well as any commercial enterprise which communicates to each other. Subscribers try to put so much faith in “government agencies” than “businesses”. Police departments, even so, are also at variance to civil rights groups over gathering private information. Law enforcement authorities get a strong desire to buy and researching knowledge about innocent people.[5]

Data Protection Laws in India

“Data Protection” means a set of data protection laws, rules, and standards aimed at minimizing privacy encroachment associated with personal data collection, storage, and dissemination. Private details originally referred to data information related to the user identifiable from the whole information if it is obtained either by government or corporate institution or agency. India’s Constitution doesn’t provably offer basic privacy rights. Nevertheless, the courts further interpreted the privacy rights into another current fundamental human rights, – i.e., “freedom of speech and expression” under Art 19(1)(a) as well as the “right to life and personal freedom” under Art 21 of the Indian Constitution. That being said, under the Constitution of India, these Fundamental Rights are subject to the conditions laid down in Article 19(2 ) of the Constitution which the State can sometimes implement.[6]

India currently has no explicit laws regulating “data protection or privacy”. The appropriate privacy laws in India are, that being said, the “Information Technology Act, 2000” and the “Indian Contract Act, 1872”, respectively. In India, defined privacy legislation is likely to be established throughout the coming years. The “Information Technology Act, 2000” addresses matters related to the payment of compensation (Civil) and penalty (Criminal) in the event of fraudulent exposure and manipulation of private information and breach of contract agreements regarding private information. Under section 43A of the (Indian) Information Technology Act, 2000, a corporate body that owns, distributes or manages any confidential private information or details or is delinquent in enforcing but sustaining fair cybersecurity standards culminating in unfair harm or benefit to another individual, therefore said industrial entity may be considered liable for paying penalties to a certain person. It is necessary to remember that during these cases there is still no maximum bound defined again for damages which may be sought either by an injured party. [7]

The “Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules,2011” were informed by the Government of India. The “Rules” deal mostly with the safety of “confidential information or an individual’s details” that mostly involves some rather private info consisting of information concerning:-

• Passwords;
• Financial information, such as bank account, credit card , debit card or other details of the payment instrument;
• A condition of physical , physiological, and mental health;
• Orientation to sex;
• A history and medical records;
• Biometric info.[8]

The rules include the appropriate data security including procedures that must be followed by the corporate entity or indeed any individual who gathers, accepts, owns, stores sells, or handles data on behalf of the corporate body. In the event of any violation, the “corporate body” and any other individual working on behalf of the “corporate body”, the “corporate body” can be held responsible for paying compensation to the individual so harmed. Following section 72A of the “Information Technology Act, 2000”, the release of knowledge, intentionally and knowingly, even without individual’s consent involved and in violation of the contractual agreement, was also punishable with imprisonment for a period of up to three years and a fine of up to Rs 5,00,000.[9]

Online Privacy Threats

To be online is part of normal life, with “Wi-Fi hotspots”, cellular networks and wireless networks covering nearly all of “Britain”, the United States and other advanced countries. Though this provides everyone with an inordinate number of data on the web, instead it reveals the vast majority of the internet community to remarkably substantial quantities of everyone’s private details. All kinds of data from your surfing habits through to your birthday, address and marital status can be obtained from your online presence, depending on the websites and services you use.[10]

1. Web Tracking – Access the internet with any span of years and that you can find site-to – site ads which are loaded by items that might just have looked at ago. It’s because they watch you. Historically, browser logs have been utilized for monitor website surfing through a fragment in information embedded through the browser, however certain methods similar like “MAC address” including profile monitoring may be implemented to know whatever you’ve done on the “web”. Although other citizens don’t consider these, others would consider it quite an infringement of online privacy, opting to just have advertisements offered up to them and that become important to certain concerns.[11]
2. Data Collection – Although monitoring might track users throughout real-time, there seem to be several online types of specimens that would gather their browsing information and transfer their “MAC address” among 3rd party marketers and corporations. With any of these user information, users had no real contact with that can develop up an excellent profile of clients internet browsing attitudes. So this applies with “mobile apps”, that will great options to clients mobile number, contact details as well as other broader phone activities to deliver user of there facilities.[12]
3. Lack of Security – “Websites” and “online” systems which do not have the recent and perhaps most efficient data protection, could even retelling hackers at threat the relevant data which they may carry about you and the dimensional analysis among both clients “computer” and a web server. Online sites, for instance, that use the today-outdated “HTTP” web message format, instead of the more reliable HTTPS, fail and essential connection between a device or “smartphone” and indeed the database to something which links. The latter ensures that data moving between some of the 2 places can still be tracked for some more sinister reasons by several other organizations or even snooped on and stolen by the hackers.[13]
4. Connecting together – A lack of safety guidelines across the cloud computing, the unified term given to smart connected systems, implies that certain machines might have not authenticated links to just the databases which control everyone’s advanced features and might be susceptible to easy malware, trying to make others to prime targets besides computer hackers. Or instead, devices and sensors speakers might eventually wind up reacting to us all the while, instead of only reacting to either a trigger word, which would have been a huge violation of privacy, either knowingly or otherwise.[14]
5. Public Wi-Fi – For that stuff that we’re doing through phones and other devices, this can be simple for plow quite easily via cellular data limits, making logging into “public Wi-Fi hotspots” often quite attractive. However the issue is that they also have poor protection or no form of encryption, which means whether hackers could conduct surveillance onto information transmitted through their computer, the “hotspot” and the internet. Most hotspots have such a “web portal” which allows users either divide up through either “email” or “login” through “Facebook or Twitter”, suggesting users want to divide up a few of their personal information, potentially open up email spam or compel you to allow Wi-Fi to connect those posts on social media.[15]
6. Social Networking – An open Facebook profile is probably the dream of a stalker, with all kinds of personal details, from the current city of residence to phone numbers and photos for browsing and shopping. However on “Twitter”, many users frequently post photos tagged with their location, all of which help the public to understand their locations with relative precision, and even let experienced robbers know because you’re not at the house. Privacy settings on various social media platforms are being enhanced to restrict private information to those friends or perhaps to choosing contacts.[16]

Data security

Data protection is a collection of devices and protocols that protect data from damage, alteration or disclosure by deliberate or accidental means. Data protection can be implemented that used a variety of methods and technologies, involving manual handling, physical protection, conceptual checks, company policies, as well as other protection mechanisms that restrict unauthorized access or “malicious users” or procedures. Data protection is primarily aimed at protecting the data an entity gathers, preserves produces, collects, or communicates. Compliance is an important concern, too. Every computer, system, or method is being used to handle, store, or gather data, it must have been secure, regardless. Infringements of the data can lead to legal proceedings as well as heavy fines, never to consider the damage to its reputation of a company. Today more critical than ever is the importance of protecting data from security threats.[17]

Types of data security techniques

There are several tools and resources for data protection which can help the efficiency of every enterprise whereas protecting the information. Forms of security measures on data include:

1. Authentication – Authentication is one of the preferred ways to improve data protection and defend against security breaches, together with the authorization. Authentication technology checks whenever experience and qualifications from a browser match individuals who encrypted in one’s database. Standard authentication mechanisms in today require the use of a variety of order to determine a user’s identity like “passwords”, “PINS”, “security tokens”, a “swipe card”, or “biometrics”.[18]
2. Access control – Authentication and authorization happen via the mechanism called “access control”. Control systems for the connectivity can include: Discretionary  access control (the least restrictive), which enables access to services based on individual or community identity; Role-based access management, granting access based on organizational position and allowing users to access relevant information only, And compulsory access control, enabling an operating system to particular organization access to key data.[19]
3. Backups & Recovery – Recognizing data security often requires proper planning here about how to access data from everyone’s customers and the company in case of any failure, tragedy, malicious activity, or violation. It is an essential practice to do daily data backups to assist with this kind of connectivity. A data backup comes from making as well as collecting copies of the data on either a completely different system or moderate including tape, disk, or cloud. Users would then use the archive to restore missing information.[20]
4. Encryption – Using an algorithm (called a cipher) and an encryption key to turn normal text into encrypted ciphertext, data encryption software effectively enhances data security. The cipher data would be unreadable to an unauthorized user. Then, only a user with an approved key can decrypt that data. Encryption is used to encrypt the data that you hold (called resting data) and data that is shared between databases, mobile devices, and the cloud (called transit data). You need to safely manage several “encryption keys”, such as securing certain vital control systems, maintaining a safe, “off-site encryption” backup and denying access.[21]
5. Data masking: Data masking software covers data through blurring puppet-character “letters” and “numbers”. The data, behind its erasing, will still be there. The program only converts the information back to its initial form when it is obtained by an approved user.[22]
6. Tokenization: Tokenization replaces confidential data with non-algorithmically reversible, random characters. The connection between the data and its credential variables is stored in a secure database lookup table, instead of just being developed by either a “mathematical algorithm” (as in the case of encryption) and decrypted. The symbol describing the true data is often used as a substitute in various networks, whereas the actual data is collected on a distinct, protected database.[23]
7. Deletions: Since electronic data is no longer required and therefore should be completely cleaned out of the network, exclusion may replace the data in such a way that it would be irreversible. Erasure is distinct from deletion, which seems to be a method which merely conceals data in a manner that it would be easy to extract.[24]

Sharing Data While Online Shopping

As a basic rule, just show what is necessary to finish one’s order. Even as “social media” like “Facebook” and “Twitter” had already contributed to either a “sharers” culture, there are just some specifics about ourselves that no online store deserves to realize concerning. Often retailers seek to gather additional information, like “annual household income” or preferred forms of media, however typically through commercial purposes only. It’s often innocuous, and therefore reporting of irrelevant data often can give rise to “spam”, “telemarketing calls” or “worse”. When making online transactions certain types of information should never be shared. Our “Social Security Number” (SSN) will be a prime example. An intercepted SSN could lead to identity theft, with the abundance of other personal data that may already be online, including your birth date and mailing address. Also, don’t disclose either detail if you don’t have a safe link, meaning it’s encrypted (look for “https” or a “padlock picture” in front of the URL).[25]

Conclusion

In Conclusion, one’s “online privacy” is quite necessary because of the many web technologies, programs, threats, and bugs that await every opportunity to capture personal information from anyone. Since all individuals were able to protect themselves by using the right tools, those who would have been much safer, so it would be more difficult to get their private details hacked. Anybody who uses the internet will consider this knowledge into account could well ensure they secure their privacy and retain protection in the future. The need for online privacy seems to have become a worldwide problem all concerned ‘s focus. This would be the reason why “online service providers” will undertake precautions to ensure this certain consumers’ privacy rights are granted. To help reduce their problem, online users also need to be educated and empowered with better privacy handling tools. The government is also doing its best to control online privacy via implementing regulations like the “Federal Trade Commission ( FTC)” that says unequivocally that internet service providers should have a say on their privacy “(Mercatus.org, 2015)”. Information technology is a complex concept that has caught the media, legislatures, researchers, and the manufacturing sector ‘s interest. Whatever it might be, yet it is represented, the interest that alone creates would be beneficial because it motivates evaluation upon this “privacy protection” backward as well as prospective. To those who want clear principles of privacy embodied throughout the systems that infuse the physical experience, it is useful to examine what all the principles are and how much options are needed for embedding the

[1] Introduction to online privacy, available at : https://www.premierchoiceinternet.com/online-privacy/chapter-one.html (last visited on May 10, 2020)

[2] Meaning of Online Privacy, available at: https://www.dynamixsolutions.com/what-is-internet-privacy-and-what-does-privacy-mean-to-you/ (last visited on May 11, 2020)

[3] The Privacy Problem, available at: https://www.computer.org/csdl/magazine/sp/2003/06/j6040/13rRUwd9CJP (last visited on May 11, 2020)

[4] Ibid.

[5] Supra note 4

[6] The Data Protection Laws in India, available at: https://www.mondaq.com/india/data-protection/655034/data-protection-laws-in-india–everything-you-must-know (last visited on May 11, 2020)

[7] Id.

[8] Supra note 7

[9] Ibid.

[10] 7 biggest privacy threats online, available at: https://www.pocket-lint.com/apps/news/143404-7-biggest-privacy-threats-online (last visited on May 12, 2020)

[11] Id.

[12] Supra note 11

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Id.

[17] Data Security, available at: https://www.forcepoint.com/cyber-edu/data-security (last visited on may 13, 2020)

[18] Types of Data Security Controls, available at: https://looker.com/definitions/data-security (last visited on May 13, 2020)

[19] Ibid.

[20] Ibid.

[21] Id.

[22] Supra note 19

[23] Ibid.

[24] Ibid.

[25] Privacy and Online Privacy, available at: https://consumer.findlaw.com/online-scams/privacy-and-online-shopping.html (last visited on May 13, 2020)

The post Online privacy: threat & data security appeared first on LexForti .

ABSTRACT

The concept of the right to privacy is not easy to capture in words. Privacy is, therefore, an extremely precious and valuable aspect of our life. Privacy became a concern of every individual due to technological advancement and also emphasize for protection of data. The right to privacy recognized in the Indian Constitution in Article 21 as such protects the right to privacy as a necessary ingredient of right to life. The Right to privacy is also recognized under the law of torts, criminal law as well as property law as an essential element involved there. Right to privacy emphasis on individual liberty and this individual liberty is under threat by the interference of the strange people. As India is a developing country it needs some time the effectiveness of the implementation of the new area of law. The paper would like to specifically focus on Right to privacy in modern India and impact on citizens of India, especially considering those people who are living in technologically isolated areas. The object of this research is to examine the present legal status of privacy & data protection in India as a matter of right.          

INTRODUCTION

Right to privacy refers to the protection of one’s personal information from being published or used by others without permission. Privacy is a human right enjoyed by every person by virtue of his or her right. Right to privacy was derived from “Article 21 protection of life and personal liberty” of the Indian Constitution. As per the Black Law Dictionary reference- “right to be alone; the right of an individual to be free from any unwarranted exposure; the right to live without any unwarranted interference by the public is not necessarily concerned”[1].  To better understand the concept of Right to privacy we need to analyze cases related to these.   Right to privacy is not a fundamental right was told to us by Supreme Court, In case of an eight – judge bench in M. P. Sharma vs Satish Chandra case 1954. After a few years in Kharak Singh vs State of UP (1962) case, the Supreme Court again declared that the right to privacy is not a fundamental right. But after, Twelve years later, in Govind vs state of M.P. (1975) Right to privacy is considered as a fundamental right by the Supreme Court. After this many cases were filed, but now it is settled position that right to life and liberty under Article 21 also includes right privacy.

 OBJECTIVE

The main objective of this study is to compare Right to privacy before and after digitalization and to observe if Right to privacy is being followed and enforced by the people of India. In this article, I will talk about how Indian judiciary has developed with the idea of Right to privacy with time.

Law related to Right to privacy

​The Information Technology Act 2000​[2]  have two sections related to privacy: Section 43A which manages the usage of sensible security rehearses for sensitive personal data and provide the payment of the individual influenced by illegitimate misfortune or gain, section 72A which provide imprisonment for a period as long as three years or a fine up to Rs 5,00,000 or both for an individual who causes improper misfortune or increase by revealing individual data of someone else without their consent under the terms of lawful contract.

The privacy Bill 2011[3]​: It says that “each individual will have a right to his privacy, the privacy of correspondence made to, or by him including his own correspondence, telephone conversation, postal, electronic mail, and different mode of communication, the confidentiality of his privacy or his beloved once life; protection of his honour and good name; protection for search, detention of law communication b/w and among individuals privacy from surveillance; confidentiality of his banking and financial transactions, legal and medical information and protection of information relating to the individual”. this bill provides security from identity theft, criminal data fraud (like another person is captured for a wrong done by someone else), and it also includes money related recognize robbery (like using another person’s identity to acquire credit, product and enterprises) etc. the bill also says that if any person who takes or obtain any information concerning an individual from any Government worker or from any other mode under false pretext shall be punishable with a fine of up to Rs. 5, 00,000.

​The Data (Privacy and Protection Bill) 2017[4]: however this bill is different from other bill in the feeling that it looks to make the assent of a person for assortment and preparing of personal data mandatory. These bill says that every person will have his individual Right and have final right to modify or remove his/her information or data from any database is in public or private.

In regarding delicate and individual data, the individual must give his/her express consent for the collection, use and storage of any such information. This bill is equally applicable on both private entities and state entities and is also applicable to those persons how are following up on their behalf. This represents a noteworthy change in law from the existing regime under the Information Technology Act 2000 and privacy bill 2011.

The Personal Data Protection Bill 2018[5]: The personal data protection bill provided for the accommodated the foundation of the data protection authority to supervise exercises that include preparing of data.

Various aspects of Right to Privacy

Phone Tapping and Right to Privacy[6]:  phone tapping and Right to privacy is affected by the development of technology relating to a person’s correspondence and this has become the debating issue. In R.M. Malkani vs the state of Maharashtra, Supreme court said that phone tapping violates the right to privacy and freedom of speech and expression and also government can’t impose regulations on publishing defamatory materials against its officials that make it Violative of Article 21 and Article 19(1)(a) of the constitution.

​

Privacy and Health[7]: Health sector is an important matter of concern in privacy and also a major aspect of Right to privacy. Health information not only includes information about health, but also the information related to health services him/her Receive. Right to life is so important that it supersedes Right to privacy. In the case of Mr X vs Hospital, it was held that doctor-patient relationship thought basically commercial is professionally a matter of confidence and therefore, Doctor is morally and ethically bound to maintain confidentiality. Does disclosure of the true facts may lead to spar the person’s Right to privacy.

Freedom of press and privacy[8]: the freedom of the press has not been expressly mentioned in article 19 of the Constitution of India but has been interpreted that it is implied under article 19. It would be quite difficult for the court to add privacy as one of the aspects to imposing the reasonable restriction. So a female who is the victim of sexual assault, abduction etc. offences further be a situation to the indignity of her name and the incident being posted in press media. This will be affecting his privacy. There is no particular law in India which directly protect Right to privacy against excessive publicity by the press. In Destruction of public and private properties vs State of A.P. supreme court says that media should be based upon the principle of impartiality and objectivity in reporting, ensuring neutrality; responsible for reporting sensitive issues, especially crime, violence and protest; sensitive in reporting related to women and children and matters related to national security; in respect of privacy.  Right to privacy will provide a solution to this problem.

LANDMARK CASES 

​M.P.Sharma and Others vs Satish Chandra[9]: this case was related to search and seizure of documents of some company the probe indicated malpractices done within the company and Attempt to conceal from shareholders the actual state of affairs by submitting false accounts and balance sheet. The F.I.R. was registered and the district magistrate issued the search warrant, and the search began at those places which belong to the company.  Various records and documents were seized. In the writ petition, the aggrieved party in Supreme Court challenged the constitutional validity of the search saying that their private records were taken away and also claimed that it violated their fundamental right. In this eight judge bench analyzed the scenario in the best way and turn down the defendant .it was too vulnerable to misuse if not made to fit each and every class of society which was in itself an Impossible task. In this judges, also said that power of search and seizure is in any system of jurisprudence, an overriding power of the state for the protection of social security and that power is necessarily regulated by law. Thus there is no need of making Right to privacy fundamental right, even the constitution-makers has not added into the constitution of India. In this Right to privacy not linked with to the Right to own property.

​Kharak Singh vs State of Uttar Pradesh and Other​[10] :  this case is related to the issue of state surveillance as against the Right to Privacy. Petitioner Kharak Singh was challenged in case of dacoity, but was released as there was a lack of evidence against him. Uttar Pradesh police subsequently opened history sheet against him and brought him under surveillance. Provision of the Uttar Pradesh police regulation allow domiciliary visits at night, secretly picketing from his house, tracking/verifying his movement and inquiries from him by officers. Kharak Singh filed a writ petition for the violation of his fundamental right. However, the court rejected the petitioners claim that another part of the regulation, namely the shadowing of routine criminals, infringed his right to privacy due to the fact this right was not recognized as a fundamental right under Indian Constitution. and the reason behind the rejection of the petition was that the visits infringed the petitioners right to life, protected under Article 21 of the constitution and could only be restricted by Law which did not include executive order such as the Uttar Pradesh police regulations that reason given by the Supreme Court of India. Supreme Court also said that Right to Privacy is not a Fundamental Right. And privacy linked to personal liberty.

​Govind vs State of Madhya Pradesh 1975[11]: After eleven years the Supreme Court where a similar three judge bench faced a similar factual matrix in this case. This case is related to the same issues which were in kharak singh vs State of Uttar Pradesh. Petitioner said that several false cases were filed against him by the police, but he was acquitted in all cases except two cases. Police opened history sheet against him on the basis that he is a habitual criminal and that he put under surveillance. He also said that police was visits his house at any time at day or night at frequent intervals, whenever he wants to leave the village he has to take permission from police station for departure and he also has to give the information about his destination and when he will return. He filed the case against police for violation of his fundamental right guaranteed by the constitution of India under Article 19(1) (d) and article 21. it is said that he has committed many crimes during the period of 1969, such as in one case under section 452 IPC he was fined Rs 100 and imprisonment of two month and in other case under Section 456 IPC he was fined Rs 500 and also imprisonment of one month etc. are crime committed by him, in short this shows that petitioner is a dangerous criminal and that the reason he was put under surveillance in order to prevent him for committing the crime this reason was given by the supreme court. And supreme court also observed that regular visits by the police should be reduced to the clearest cases of danger to the security of the society and not routine follow up at the end of a conviction or a release of a prison .In this case govind not win, but Privacy won for the first time and also gained some recognition in fundamental right as in Article 21 of the Constitution of India. And after this right to privacy was not able to become absolute, but become more stronger than before.

Maneka Gandhi vs The Union of India 1978[12]: In 1977 soon after the lifting of the emergency, Maneka Gandhi received a letter from the regional passport office asking her to submit her passport. The letter said that the government of India wanted to seize her passport in the public interest. However, government authorities do not provide any Specified reason for the interest of the general public. however, Maneka Gandhi approach the supreme court under article 32 for violation of Article 19(1)(g) right to freedom and Article 21 right to protection of life and personal liberty. In this case, the court said that the procedure established by law should not interfere with personal liberty and right to privacy must also be right just and truthful and not arbitrary, fanciful or oppressive. This judgement expanded the area of Article 21 and this judgement truly made India a welfare state as promised in the constitution of India. In this case Right to Privacy linked to Right to personal liberty.

R Sukanya vs R Sridhar[13]:  This case from 2004 was transferred from the trial court to the Madras High Court. South Indian actress Sukanya and Sridhar approach the court over the marital dispute. Being an actress sukanya filed an application requesting the media be restrained from publishing the details of the case, and that her privacy be respected. the trial court rejected the petition filed by the sukanya, but the high court pointed out that under the Hindu marriage act 1955, section 22, proceeding shall be held in camera (which means the public is not permitted in the court room when the proceedings related case are being heard, and only the courts judgement in the case will be published) and restrained the media from reporting on the case.

Justice K.S.Puttaswamy (retd.) vs Union of India 2017[14]:  In this case a 91-year-old retired judge K.S. puttaswamy filed a petition in the Supreme Court of India .he says that aadhar act violates the right to privacy .this case was actually concerned with an issue to a challenge to the governments Aadhaar scheme (a form of uniform biometrics-based identity card) in which the government made mandatory for availing the government services and benefits. That was made before a three-judge bench of the Supreme Court on the basis that this violates the right to privacy. Accordingly, a constitution bench was set up and concluded that there was a need for a nine-judge bench to determine whether there is a fundamental right to privacy in article 21 of the Indian Constitution. In this nine-judge bench of the supreme court clarified that most other fundamental rights, the right to privacy is not an absolute right, and that is why Right to privacy is a fundamental right protected by  Article 19 and  Article 21.

SUGGESTION​

1. There is no comprehensive legislation on privacy in India, it has been left to the judiciary to interpret Right to privacy within the realm of existing legislation. A proper law guaranteeing privacy is, therefore, an urgent demand of the hour. 
2. Indian .jurist have not made an attempt to define privacy. They have relied on the cases that happen in the past, the result is that we need to have an indigenous definition on Right to Privacy. 
3. Right to Privacy has been upheld by the Supreme Court of India as an integral part of Article 21, fundamental Right to Life which is available only against the State not against the Private persons. So there should be a law which should be available against private persons also.
4. The privacy of personal communications including telephone calls is protected under the law but it has been frequently violated by the police and intelligence agencies. So government should take immediate this thing because it violates the person Right to privacy.
5. In cases relating to abortion women’s right to privacy of dignity and bodily integrity should be made laws for these issues.
6. A remedy of restitution of conjugal right, a concept is abolished in many countries, so this concept should be abolished in India because it Cleary violate the Right to Privacy.
7. Privacy is one of the most contentious legal issue arising in the cyber world, India‘s first cyberlaw the Information Technology Act 2000 has omitted to deals with the crucial issue of privacy. It does not even touch or address the critical issues of right to privacy online .so there should be made law related to online privacy.
8. In India awareness about privacy is at a very low level in the actual world level aside cyberspace. The government should take the appropriate measure to create awareness about privacy.
9. There exists in India an impending need to frame a model statute which safeguards the privacy of an individual especially given the emergence of customer service corporate entities.

10) Government surveillance of privacy conversation is possible so long it is unlike to touch on absolutely protected personal information it must be halted immediately. Any record made must be destroyed and data collected cannot be used in criminal procedure.

11) Given the new age threats to individual privacy, clear cut law are the need of the hour. Article 21 is not enough. The law on privacy need to be codified and put in a composite form.

12) For the fundamental Right to Privacy to truly become the law of the land, a larger seven judge bench of the Supreme Court is to be constituted in favor of establishing the full fledge law related to Right to Privacy.

 CONCLUSION

The concept of Right to privacy is very fluid and the laws related to this topic are musk and subjective. The Right to Privacy has created made leaps and bounds in the present-day society. With the electronic and telecommunication boom throughout the country, the Right to privacy has become more pivotal right. The risk of social media and other social networking sites has resulted in users voluntarily or involuntarily disclosing private information to the public. It was also observed that Right to Privacy is derived from Article 21 Right to Life and Personal Liberty and the current judicial precedent about the popularity of fundamental status of the right to privacy has provided constitutional protection to privacy and confidential information and violation of said right will result in stringent criminal action against the infringer. The reason behind the establishment of Right to Privacy is with respect to the protection of personal information shared on digital platform and due to the fact India doesn’t have privacy law as such, the fundamental status of privacy will protect this right from being contravened by others. Right to Privacy has finally obtained the correct place in the Indian constitution after various legal discussion and deliberation happened in numerous instances which treated various aspects of Right to Privacy in the Constitution of India. therefore the efforts of Supreme of court need to be commended due to the fact supplying the essential fame was a frightening challenge and in spite of plenty of protest and problems, the Supreme Court succeeded in giving the right space to the Right to Privacy and now confidential and covert information of private individuals will be under the protection and unauthorized intrusion in privacy matters will result in rigid punishment.

BIBLIOGRAPHY

BOOK 

1) Black’s law Dictionary 11th edition 2019

BARE ACTS

1. The Indian Wireless Telegraphy act 1933
2. The Central Motor Vehicles Act 1898 and Its Rule 2012

ARTICLES

1. Article 21 Right to life and personal liberty
2. Article 22 Protection against arrest and detention
3. Article 19(1)(a) Freedom of speech and expression
4. Article 19(1)(g) Right to practice any profession or to carry on any occupation, trade or business to all citizens
5. Article 19(1)(d) Right to move freely throughout the territory of India 

[1] Black’s law Dictionary (11th edition 2019)

[2] India Code digital repository of all central and the state acts

[3] India Data Privacy laws and EU GDPR, (published by Rodl and partner 0n 24 may 2018)

[4] Right to Privacy, law wed unique legal database

[5] Maximum punishment proposed: ‘personal Data protection bill 2018’

[6] R.M. Malkani vs State of Maharashtra 1973 AIR 157, SCR 417, SCC 471

[7] ​Mr. X vs Hospital Z 1998

[8] Destruction of public and private properties vs State of A.P. 2009

[9] ​M.P.Sharma vs Satish Chandra, District 1954 AIR 300, SCR 1077

[10] Kharak Singh vs State of U.P. 1964 AIR 1295, SCR 332

[11]Govind vs State of Madhya Pradesh 1975 AIR 1378, SCR 946

[12] Maneka Gandhi vs Union of India 1978 AIR 597, SCR 621

[13] ​R.Sridhar vs R.Sukanya 2004

[14] ​Justice K.S.Puttaswamy (Retd) vs Union of India 2017

[15] Manupatra, India kanoon, SCC Online

The post What is Right to Privacy in India? appeared first on LexForti .

Introduction

Today, every country in the world is fighting with the novel coronavirus diseases. Many people in the world have lost their lives after getting infected with this virus. The Government of every country has taken various measures to protect people getting infected form this deadly virus. The Government advised the citizens to maintain social distance and take proper precautions while they are out for some work. 

The Government of India had announced nationwide lockdown for 21 days in India after the outbreak of coronavirus in the country. The Central and State Government along with various healthcare officials, non-profit government organizations took various steps to protect the citizens and to slowdown the spread of COVID-19 in the country. After 21 days, the lockdown was extended by the Government because of the rise of the coronavirus cases in the country. During the second lockdown, the Central Government launched Aarogya Setu App, a contact tracing app through which the server will record the data of all the people who came in contact with infected people to limit the spread of coronavirus. It is an app which uses both GPS and Bluetooth to determine the location of the users, when and where the person came in contact with the infected person. The App collects various information of a person such as name, gender, age, profession, phone number, travel history, present location, access to the contacts and health status. Within few days, the app had 98 million downloads and was the fastest downloading app of all time. The App records all the data of the person and accessed by the Government whenever necessary. After the launching of the app, every company, local authorities, societies made it mandatory to download the app. The Government also made mandatory for the travelers to download the Aarogya Setu App while travelling through train or flight. The users had privacy concerns in the App as it is collecting personal data and tracking location with Bluetooth and GPS technology. Therefore, the question arises whether the App is invading the right to privacy of the citizen in the country. 

VIOLATION OF RIGHT TO PRIVACY

Privacy is an important concept in every life of the person. With the advancement of technology, it is necessary to protect and maintain privacy of each person. In our country, there is no proper data protection law in our country which legally protects the sensitive data of the citizens. With the existing legal provisions such as Information Technology Act, 2000, there is limited protection to the data of the citizens of India. Hence, there is very less protection to data privacy in our country. This issue was raised in the case of K.S. Puttuswamy v. Union of India, it was held that the privacy of the individual is an essential aspect of dignity. The ability of the individual o protect a zone of privacy enables the realization of the full value of life and liberty.^[1]

In this landmark judgment Justice DY Chandrachud laid down three fold test for encroachment on privacy- 1) There must be a law in existence to justify the encroachment 2) The intervention must be for fulfilling a legitimate state interest 3) The encroachment should not be disproportionate to the purpose.^[2]

Analyzing the App with the test stated in Justice K.S. Puttuswamy v. Union of India, it is seen that the App is not backed by any particular law but it has been made under Section 35 of Disaster Management Act, 2005 which gives the power to the Central Government to make rules whenever it is necessary. There is a legitimate aim to invade the privacy of a person in this case as it uses the information to suspect coronavirus patient and to trace that how many people had came in contact with the infected person. For this aim, there must large smartphone base which consist of 60-70% population as per the policy. But as per the India Internet 2019 report by IAMAI and Nielsen, the benchmark of smartphone is below the line^[3]. This shows that there is no connection between the aim of the State and the policy implemented by the State. This concludes that the App has failed the second test. While studying the test of proportionality, it is necessary to determine whether the said law is acting as a reasonable restriction in the fundamental right to privacy. In this case, the privacy policy of the App states that the Government is not liable for any unauthorized access of information. It also states that for the personal information can be used for  necessary medical and administrative interventions. But the policy also states that all personal information is stated in an anonymized manner. This shows that though the App stores the information in encrypted form but it does not guarantee that if the information can be used by any unauthorized user. Therefore, it does not pass the test of proportionality. As the App does not fulfill the criteria mentioned in the test, therefore it invades the right to privacy of a person and challenge stating that the encroachment is unreasonable. 

After few weeks of the launch of the App, there were many legal, privacy and security issues relating to the App. It is stated that the information can be used for medical and administrative interventions. This states that the personal information can be used by any department of the Government. There is no specified rules and regulations by the Government in the App regarding the security to protect the collected data. There is no proper legal framework to control the work of the App apart from privacy policy and terms of use. Apart from the legal issues of the App, there were many other security and technical issues regarding the App. The app will be able to provide reliable results only if 60% of the population will download the App but according to reports there are only 24% Indian population own a smartphone.^[4]Many questions were raised regarding the use of both location and Bluetooth, and not only Bluetooth as a source to track the users of the app because the geographic location can be misused by any unauthorized users. The App is not open source and it is not available to the public as there was fear to point flaws in the app’s development.^[5]The security issue is one of the major issues in the Aarogya Setu App. There was a person who had hacked the App and stopped it from gathering the data from GPS and Bluetooth. It was also stated by the India’s cyber security agency that there were many phishing attacks in the name of the App and it was at a rise during this pandemic situation. 

Recently, the Ministry of Electronics and Information Technology of India released Aarogya Setu Data Access and Knowledge Sharing Protocol, 2020. In this protocol, the government has given certain clarifications regarding the app such as the data can be used by other departments of the Government. But the protocol did not the clear the fact of using both Bluetooth and GPS for tracking the users and also about the data collected and stored in an anonymized manner.  

CONCLUSION

Privacy is an vital aspect in an individual’s life. Both are protected and an intrinsic part of Article 21. Today, every country is fighting with the novel coronavirus disease and taking different measures in order to keep their citizens safe. One of the measure is the contact tracing app where the app tracks the users using GPS or Bluetooth or both. India also launched a contact tracing app named Aarogya Setu App which uses both Bluetooth and GPS for tracking the users. There were many legal flaws stated in the Aarogya Setu App main being the violation of fundamental right to privacy as per the test stated in the Puttuswamy case. Though the Government is trying to protect the citizens from coronavirus but it is also necessary to protect the privacy of every citizen in the country. The App has different privacy issues and it is important to resolve all the issues the data stored with the Government is for the public interest. The Government can make the App as an open source code and maintain the transparency with the citizens. It should also secure the data within themselves and do not share with the third party. With all these effective changes, the App will create a proper balance between security, privacy and the protection of public health. 

^[1] Justice K.S. Puttuswamy v. Union of India, (2017) 10 SCC 1

^[2] Ibid.

^[3] India Internet 2019, Internet and Mobile Association of India, Nielsen, available at https://cms.iamai.in/Content/ResearchPapers/d3654bcc-002f-4fc7-ab39-e1fbeb00005d.pdf, (last visited on August 29, 2020)

^[4] Shashank Mohan, No Covid-19 silver bullet: Aarogya Setu endangers India’s Privacy and Its Usefulness is uncertain, May 12, 2020, available at https://scroll.in/article/961641/no-covid-19-silver-bullet-aarogya-setu-endangers-indias-privacy-and-its-usefulness-is-uncertain, (last visited on August 29, 2020)

^[5] Andrew Clarance, Aarogya Set App: Why India’s Covid-19 Contact Tracing App is Contraversial, May 14, 2020, available at https://www.bbc.com/news/world-asia-india-52659520, (last visited on August 29, 2020)

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Introduction

The unrivalled occupancy and rapid advancements of Computers, technology and the Internet has significantly shaped the world into an edified space. With the burgeoning demand and colossal utilizations, its access isn’t limited to a certain set or type of people anymore, instead appears, more or less, as an around-the-globe administration. The fast-paced growth of the web, outstanding reach over people and generation of a global surge of excitement are laudable.

Estimates vary as to the number of people connected to the net. But it’s widely believed that the number is over 60 million, and growing exponentially^[1]. Between 750,000 and 1 million people are caught up in the Internet phenomenon every month, and it is expected that by the end of the century, the total number of users will be at least 150 million and the value of goods, services and information traded globally over the internet will reach US $ 200 billion^[2].

This leads us to elucidating on the concept of cyberspace, which isn’t precisely defined anywhere, although it can be termed as an intangible space in which communication over various computer networks occur simultaneously.  This widespread interconnected digital technology [cyberspace] eventually means that a person sitting in one part of the world can access content of any kind uploaded by a server, oceans away on the other side. Due to these advancements it is apparent that any data and information can be availed in a digitised format—detached from the physical medium—since the internet transcends the physical dimensions of things.

Notwithstanding the foregoing, this as a consequence, makes the notion of property and exclusivity irrelevant. Hence it can be understood that as soon as any information is released into cyberspace, it practically becomes of public use, without any specific ownership; it becomes publici juris. Therefore, it can be used by anybody.

The advantages and scope of publicity of business through e-commerce or business on the World Wide Web can reach the surfers very fast in any part of the world. Unfortunately this has also paved the way for the emergence of cyber crime^[3].

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  Cyber crime & The IT Act, 2000

Cyber crime—although an undefined term by an Indian statute—is a catchall attributed to any crime which includes as an essential requirement, a computer and a network. The National Cyber Crime Reporting Portal (a body set up by the government to facilitate reporting of cybercrime complaints) defines the term, as ‘any unlawful act where a computer or communication device or computer network is used to commit or facilitate the commission of crime’^[4]. Cyber crime isn’t confined to fraud, bullying or identity theft anymore. Various activities can be termed as cyber crimes like: CSAM^[5], Cyber bullying, cyber stalking, vishing, online fraud, identity theft, phishing, spamming, data breach, cyber-squatting, pharming, crypto-jacking, espionage, online drug trafficking etc. and several other in accordance with the statutes.

The meteoric rise of cyber crimes in the world is undeniable. But it wasn’t until much later that this quandary was even acknowledged by the general population or legislations. The fact of the matter is that with the breakneck speed of new digital technology build-out—which patently highlights the nifty uses—sadly, ends up shrouding the major drawbacks. Nevertheless, there has been much-needed awareness in the past few years regarding cyber offences; it’s not treated as a trifling matter anymore.   

To deal with the cyber-crimes, the parliament of India has enacted the Information Technology Act, an act based on UNCITRAL^[6] (which adopted model law on e-commerce advocating a shift from paper based environment to a computer based environment^[7]).

The IT Act, 2000 provides legal recognition to digital signatures and electronic records. It is a legal framework to facilitate and safeguard electronic transactions in the electronic medium.

Intellectual Property

The concept of Intellectual Property can be traced back to the Byzantine Empire where monopolies were granted. For instance, the granting of exclusive privileges to inventors of any machine/process to speed up silk-making by Venice’s statutory legislation, or one year monopoly to cooks for new recipes by Greece^[8] . Over time the concept has been given a clearer picture. The most important of this subject herein is the ability of an idea or creation—not necessarily tangible—is termed as a property and has the right to be protected by the law to support artists, creators and other prime movers. 

According to the World Intellectual Property Organization (or WIPO)—one of the 15 specialized agencies of the United Nations—defines Intellectual property as, “creations of the mind: inventions; literary and artistic works; and symbols, names and images used in commerce. Intellectual property can be further categorized into: industrial property and copyright”. 

Industrial Property deals with patents, trademarks, geographical indications and designs, etc. on the other hand, literary, recording, musical, dramatic, cinematographic films and other such artistic works fall within the ambit of Copyright. 

The primary legislations regulating Intellectual property in India are: The Patents Act 1970, The Trade Marks Act 1999, The Geographical Indications of goods (Registration and Protection) Act 1999, The Design Act 2000, The Semiconductor Integrated Circuits Layout-Design Act 2000 and The Copyright Act 1957. Even still, the biggest discrepancy present in our country’s situation is the lack of understanding regarding IPR and Cyber laws—one cannot be separated from the other if online content has to be protected. 

There’s absence of any provision dealing with Intellectual Property in the IT Act, 2000. There isn’t even a mention of the word ‘IPR’ or anything about Intellectual Property protection on its infringement, which currently is a very challenging area in cyberspace.  

IPR and Cyberspace 

Copyright

In hindsight, the internet has created a new, effortless and trouble-free medium for several artists—writers, musicians, authors, content creators, researchers, and other copyright holders—to display their art while working on a global level, creating data accessible to millions of people. 

Contrarily, it has also opened a Pandora’s Box by making it possible for any user to duplicate information and replicate it as his/her own, thereby facilitating ‘copyright’ infringement.

A copyright confers an exclusive right on the owner, for a finite period, to prevent others from exploiting its subject-matter—an invention, a design, or a literary or other artistic work.

Hence, the copyright owner is entitled to certain ‘exclusive rights’ subject to certain provisions, to do or authorise the doing of certain acts in respect of work or a substantial part of it like: (a) in case of literary, dramatic or musical work—its reproduction, issuing copies, performance, adaptation etc., (b) computer programming, (c) artistic work, (d) cinematography film, (e) sound recording; (emphasis supplied)^[9].

According to the statutes, Copyright work shall be deemed to be infringed when any person, without license granted by the owner of the Copyright/Registrar of Copyrights under the Indian Copyright Act, 1957 or in contravention of the conditions of a license so granted or of any condition imposed by a competent authority under the said Act, does anything which exclusive right to do is, by the Act, conferred upon the owner of the copyright^[10]. Furthermore, on distribution either for trade or to an extent to affect pre-judicially the owner (emphasis supplied)^[11].

As far as basic usage of artistic work for an individual is concerned, liability may be escaped by using the defence of private use^[12]. Despite, unauthorised home taping of radio and television programmes becoming rampant all over the world^[13], the courts heretofore, have termed, liability of the end-user depending upon the degree and extent of unauthorized use, according to circumstances^[14]. 

It has been opined in Helliwell v. Piggott-Sims^[15], a UK case that, ‘private and domestic use can be properly said to have been done if the contemplation of its use was only limited to enjoying the collection.’  

The liability for offence [copyright infringement] usually lies on the originator, or the first person to post the copyrighted information on the web regarding requisite knowledge and intention (of committing the crime) to be present. Therefore, if the person has knowledge (of violation of copyrighted work) then the defence of ignorance—regarding the existence of such a law protecting the same—isn’t tenable^[16]. As far as (ISP) Internet Service Providers are concerned due to its system design appears to commit literal infringement of distribution, display or performance rights^[17].

Computer software is also subject matter of copyright protection under the act. Defined in Section 2(ffc) of the Act is a ‘computer programme’ within its meaning. Computer Programmes are thence included in the definition of literary work in the Act^[18] and owners have the right to grant software licenses^[19]. Moreover, The Penal Code, 1860 also reserves the right to punish publication of copyrighted work as the offence of forgery^[20]. In India, the offence of Copyright infringements are pursued under section 63 of the Copyright Act, 1957 ‘whereby any person who knowingly infringes or abets it shall be punishable for term not less than 6 months extendable up to 3 years with fine not less than rupees 50,000.’

Trademark and Domain Name

The Trademark Act, 1999 defines the term as, “A mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours”^[21]. Basically a trademark serves the purpose of identifying the product (and its origin), guaranteeing its quality, advertising it, and public (prospective consumer) image^[22]. Common examples can be: Pepsi, Sony, and Colgate etc.

A domain name may constitute a trademark if used for the purposes of identifying the source of goods or services^[23]. The most critical aspect of access to a particular website is the domain name.  Since inception of the domain name system, a domain name has been the identifier of an individual or entity operating within the worldwide web comprising cyberspace. On registration, they allow the owners of the domain names to mark their location in cyberspace by providing an identity and an exclusive mode of marketing products^[24].

‘Cybersquatting’ is a form of infringement of trademark laws. It involves the use of domain name by a person with neither registration nor any inherent rights to the name. These people register trademarks of others as domain names and sell those domain names back to the [trademark] owners or third parties at a higher price for profit. Since domain names establish a sense of online identity, they have major importance for creators. However, there’s more—an essential need to prove a dishonest intention, lack of legitimate rights and interest and similarity of domain name with the trademark in these petitions^[25]. ‘A domain name registrant doesn’t obtain any legal right to use that particular domain name simply because he has registered the domain name, he could still be liable for trademark infringement^[26].’

The Supreme Court was of the opinion that the use of similar domain name may lead to a diversion of users which could result from user’s mistaken access on one domain name instead of the other^[27]. This rationale was followed in succeeding judgements like of Tata Sons Ltd. & Anr. v. Arno Palem & Anr.^[28], as well.  

Furthermore, reverse domain name hijacking or reverse cybersquatting is when a trademark owner tries to secure a domain name by making false cybersquatting claims against a domain name’s rightful owner through legal action. Such issues usually arise with large corporations and wealthy individuals.’

Presently India doesn’t have any specific provision to stop violations as the aforementioned, there is a need for new legislation like the United States—U.S. Anti-Cybersquatting Consumer Protection Act, 1999. It protects the interest of owners of both registered and unregistered trademarks against use of their marks within domain names and also safeguards living persons against use of their personal name under certain circumstances.

Issues

Jurisdiction

The notion of jurisdiction is rooted in territoriality from the point of view of both the court which can properly assert jurisdiction and from the point of view of the law that should be applied while deciding the dispute^[29]. This concept of a ‘territorial space’ becomes complicated with the borderless and non-physical domain of the internet. Furthermore, these enforcement issues become more complex in cases of international transaction. In the case of, Banyan Tree Holding (P) Ltd. v. A. Murali Krishna Reddy^[30], the Delhi HC was dealing with an inter-state issue but the plaintiff was a foreign company which had invoked the jurisdiction of an Indian Court to seek an injunction against the alleged violator of trade mark. The court by large followed the development of common law with no indigenous law developed in India. 

Other Issues

Neither is there a legal compensation under the IT Act nor any provision to punish Cybersquatters; the only relief available is to take the domain back. As already mentioned before, there is lack somewhere in respect of jurisdiction issues, cyber stalking, cyber defamation etc. in the said statute.

Similarly, in the Indian Trademark Act, 1999 and Copyright Act, 1957 there’s a silence on cyber infringement issues. Additionally even with the computer programmes being protected under the copyright act, there’s no remedy for online software piracy^[31]. 

Conclusion

Intellectual Property Rights are a very important aspect in today’s time. There is a massive need for attention in the field for safeguarding the rights of developers, creators, and other artists. In India, although the legislations are going through steady changes there is still a certain requirement for a level of awareness regarding the crimes committed in cyberspace. As the internet provides a massive platform to performers—blatant, unchecked and continuous IPR violations on the internet—pushes intellectual property of people in a downslide motion which isn’t a good thing for the creative process and empowerment of this country. There is an urgent need for stricter laws in this field to avoid further infringements. And hopefully there will be.

^[1] Tan Tee Jim, Net Effect Copyright Conundrum in Cyberspace, 9 SAcLJ 229, 229 (1997).

^[2] See “The Business Times”, 22 September 1997 and “Business Week”, 5 May 1997. 

^[3] Harish Chander, Cyber Laws and IT Protection, 14 (PHI learning Private Ltd. Publication 2012).

^[4] Aprajita Rana & Rohan Bagai, Cybersecurity in India, Lexology (Feb. 24, 2020), https://www.lexology.com/library/detail.aspx?g=4cd0bdb1-da7d-4a04-bd9c-30881dd3eadf

^[5] Child Sexually Abusive Material/Child Pornography

^[6] United Nations Commission on International Trade Law

^[7] Vakul Sharma, Information Technology, 15 (Universal Law Publishing Company 2013).

^[8] Mr. Atul Satwa Jaybhaye, Cyber Law & IPR Issues: The Indian Perspective, Bharat Law Rev., Apr.-June 2016, at 166, 168. 

^[9] Indian Copyright Act, 1957 § 14.

^[10] Ibid, § 51(a)(i)

^[11] Ibid, § 51(b)(ii)

^[12] Ibid, § 52.

^[13] Dr. Gupta & Agarwal, Cyber Laws, 148 (Premier Publishing Company 2010)

^[14] Prosieben Media A.G. v. Carlton U.K. Television Ltd. [1999] FSR 610, 619.

^[15] [1980] FSR 582.

^[16] Rodneyd Ryder, Intellectual Property and the Internet (Lexis Nexis – Butterworths 2002) 320.

^[17] Ryder supra note 15, 320. 

^[18] Indian Copyright Act, 1957 § 2(o)

^[19] Jaybhaye supra note 8, 171.

^[20] Indian Penal Code, 1860, § 463, 464.

^[21] The Trademark Act, 1999 § 2(1)(zb)

^[22] Dr. B.L. Wadhera, Law relating to Intellectual Property, 134 (Universal Law Publishing Company 2009)

^[23] Raymond Limited v. Raymond Pharmaceutical Pvt. Ltd., 2016 SCC OnLine Bom 5159.

^[24] Ibid. 

^[25] Chander supra note 3.

^[26] Yahoo Inc. v. Aakash Arora & Anr.,78 (1999) DLT 285.

^[27] Satyam Infoway Ltd. V. Sifynet Solutions Pvt. Ltd., AIR 2004 SC 3540. 

^[28] 2013 (54) PTC 429 (Del).

^[29] S Muralidhar, Jurisdictional Issues in Cyberspace, 6 IJLT 1, 2-3 (2010).

^[30] 2009 SCC OnLine Del 3780.

^[31] Jaybhaye supra note 8.

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Introduction

The world today that we live in is fast-paced, where data transfer is as normal as people travelling. These transferring of data happens between companies and their customers, the State and its citizens, to name a few. This has thus led to the increase in the vulnerability of such private information of the users being released. On the 27^th of July, 2018, the Government introduced the draft of the Personal Data Protection Bill in the light of a similar bill having been passed by the European Union called the General Data Protection Bill. The passing of the GDPR in the European Union comes after the surfacing of Facebook’s admission on the sharing of data of 87 million users out of which 5 lakh users were Indian to Cambridge Analytics. With the Information Technology’s Reasonable Security Practices and Procedure also in place, questions are being asked on its effectiveness and the need of protecting the users from such malpractices. While talking about privacy, it is pertinent to refer to the judgement of Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors [ WRIT PETITION (CIVIL) NO 494 OF 2012] where the Supreme Court addressed and acknowledged the Right to Privacy as a Fundamental Right. The case while dealing with the Right to Privacy as fundamental right under article 21 also highlighted the right to informational privacy as a significant right. This article shall be dealing with the key features or the salient features of the Bill with a brief explanation of them.

Salient features of the Bill are

1. Broad classification of data– Under this proposed bill, it regulates three categories of data. They are: Personal data, sensitive personal data and the critical personal data. Sensitive personal data has been defined under the Bill to include personal data such as the financial data, health data, sexual orientation, biometric, sex life, genetic data, intersex status, caste or tribe. Such an information can only be shared outside of India only after attaining the explicit consent of the user and the Data Protection Authority’s. The Critical personal data refers to the data which can only be processed in a server of data centre located within India. This means that such a data cannot be shared outside of India. A problem also remains regarding the unclarity of the scope of the definition of it.
2. Right to data– Data portability refers to providing of data that the entities uses so that it is interoperable across various platforms. Such a right bars the hostage of personal data by certain entities. It prevents the entities that are in control of the personal data to hold such data of individuals in certain formats which therefore makes it difficult to use it elsewhere. Through this right, individuals are therefore required to be provided with the data which is structured, commonly used and machine readable.
3. Right to confirmation and access– This right allows the users to obtain the following information from the data fiduciary on matters including confirmation on whether the data fiduciary has processed its personal data, summary of such a processed data, and Summary of such activities
4. Right to be forgotten- Under this right the data principal has a right to restrict the data fiduciary from further disclosure of such a right if the purpose of such a disclosure has been served, if the data principal has withdrawn his/her consent and if such a disclosure was made illegally.
5. Applicability of the Bill- Under the present Personal Data Protection Bill, which is governed by the IT rules, all the government bodies and its branches are excluded from its purview. It applies to such institutions which comes within the jurisdiction of the Indian territory.
6. Transparency- Following aresome of the obligations that the data fiduciary is required to follow:

Firstly, to provide the manner of collection of the data, secondly the purpose of such a data collected , thirdly how such a right is being exercised and lastly the right to file a complaint.

• Accountability– The data fiduciary is responsible for protecting the personal data of the data principals. This bill is similar to that of the principles enumerated under the GDPR so that it is in accordance to that of the international practice. Further the engagement of a data fiduciary and  a data processor must be done through a contract. A data barred from engaging with any other data processor unless it is mentioned within a specific clause.
• Breach of personal data– Under the occurrence of any breach of data, it would harm the data principal when such an occurrence happens. Therefore the data fiduciary is required to inform about the same to the authorities after which the authorities would instruct the data fiduciary to inform about it to the data principal and to take immediate and appropriate remedial actions as soon as possible.
• Reasonable use of the data– Chapter II of the Personal Data Protection Bill mentions the fair and reasonable processing, purpose, limitations , collection limitation, notice, data quality, etc. This however represents the stark difference from the previous Sensitive Personal Data Rules, 2011. Such a care is necessary on the part of the Data Fiduciaries because it ensures that a framework of accountability is setup.
• Children’s data privacy– A child’s personal data can only be processed after verifying their age and having obtained the consent of the parents. The Data Protection Authority also can classify any data fiduciaries who operate services directed to children.

Conclusion

Such a bill was brought to increase the security and the data of the citizens. After a thorough analysis of the various sections, it can be seen that the bill has increased the liability of the data fiduciaries manifolds with the prime objective of providing remedial measures whenever there is a breach of such a contract.

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