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Individuals, as citizens and consumers need to have the means to exercise their right to privacy and protect themselves and their information from abuse. This is particularly the case when it comes to our personal information. Data protection is about safeguarding our fundamental right to privacy, which is enshrined in international and regional laws and conventions.
The ministry has recently set up the ISTDC. The main objective of this program is to facilitate, coordinate and promote technological advancements, and to respond to InfoSec incidents, threats and attacks at the national level. ISTDC has been established for the following functions:
Various breaches when data protection laws can be applied.
Section 43 of the IT Act, imposes a penalty of INR 10 million inter alia, for downloading data without consent. The same penalty would be imposed upon a person who, inter alia, introduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network.
Section 65 of the IT Act lays down that whoever knowingly or intentionally conceals, destroys, or alters any computer source code used for a computer, computer programme, computer system or computer network, when the computer source code is required to be kept or maintained by law for the time being in force, shall be punishable with imprisonment up to three years, or with fine which may extend up to INR 200,000, or with both.
Earlier, the IT Act under Section 66 defined the term 'hacking' and provided penalty for the same. However, the term 'hacking' has now been deleted by the introduction of the IT Amendment Act, 2008. The substituted Section 66 now reads as "If any person, dishonestly or fraudulently does any act referred to in Section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both".
Section 72 of the IT Act provides for penalty for breach of confidentiality and privacy. The Section provides that any person who, in pursuance of any of the powers conferred under the IT Act Rules or Regulations made thereunder, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned, discloses such material to any other person, shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to INR 100,000, or with both.
The right to privacy judicial activism has brought the right to privacy within the realm of fundamental rights by interpreting Articles 19 and 21. The judiciary has recognised right to privacy as a necessary ingredient of the right to life and personal liberty. The Supreme Court of India has interpreted the right to life to mean right to dignified life in Kharak Singh vs State of Uttar Pradesh, especially the minority judgment of Subba Rao, J. In Gobind v. State of M.P., Mathew J., delivering the majority judgment asserted that the right to privacy was itself a fundamental right, but subject to some restrictions on the basis of compelling public interest. Privacy as such interpreted by our Apex Court in its various judgments means different things to different people. Privacy is a desire to be left alone, the desire to be paid for one data and ability to act freely.
Right to privacy relating to a person’s correspondence has become a debating issue due to the technological developments. In R.M. Malkani v. State of Maharashtra, the Supreme Court observed that, the Court will not tolerate safeguards for the protection of the citizen to be imperilled by permitting the police to proceed by unlawful or irregular methods. Telephone tapping is an invasion of right to privacy and freedom of speech and expression and also Government cannot impose prior restraint on publication of defamatory materials against its officials and if it does so, it would be violative of Article 21 and Article 19(1)(a) of the Constitution. In People’s Union for Civil Liberties v. Union of India, the Supreme Court held that right to hold a telephonic conversation in the privacy of one’s home or office without interference can certainly be claimed as right to privacy. In this case the Supreme Court had laid down certain procedural guidelines to conduct legal interceptions, and also provided for a high-level review committee to investigate the relevance for such interceptions. But such caution has been thrown to winds in recent directives from the government bodies as is evident from phone tapping incidents that have come to light. In State of Maharashtra v. Bharat Shanti Lai Shah, the Supreme Court said that interception of conversation though constitutes an invasion of an individual’s right to privacy but it can be curtailed in accordance with procedure validly established by law.
In R. Rajagopal v. State of T.N., the Supreme Court held that the petitioners have a right to publish what they allege to be the life story/autobiography of Auto Shankar insofar as it appears from the public records, even without his consent or authorisation. But if they go beyond that and publish his life story, they may be invading his right to privacy. The Constitution exhaustively enumerates the permissible grounds of restriction on the freedom of expression in Article 19(2); it would be quite difficult for courts to add privacy as one more ground for imposing reasonable restriction.
In Destruction of Public & Private Properties v. State of A.P., the Supreme Court said that media should base upon the principles of impartiality and objectivity in reporting; ensuring neutrality; responsible reporting of sensitive issues, especially crime, violence, agitations and protests; sensitivity in reporting women and children and matters relating to national security; and respect for privacy. Casting couch is a very popular tool used by media nowadays which directly hammer the individual privacy. There is no guideline to handle this issue. Privacy frame will provide solution to solve this problem.
In People’s Union for Civil Liberties (PUCL) v. Union of India, the Supreme Court observed that by calling upon contesting candidate to disclose the assets and liabilities of his/her spouse the fundamental right to information of a voter or citizen is thereby promoted. When there is a competition between the right to privacy of an individual and the right to information of the citizens, the former right has to be subordinated to the latter right as it serves larger public interest. The question arises as to what extent a voter has a right to know about a candidate’s privacy. The voter’s right to know about a candidate’s privacy can be protected and flourished by removing the drawbacks of laws relating to voter’s right to information. Privacy means the right to control the communication of personally identifiable information about any person. It requires a balancing attitude; a balancing interest.
In Mr. X v. Hospital Z, the Supreme Court held that doctor-patient relationship though basically commercial, is professionally a matter of confidence and, therefore, doctors are morally and ethically bound to maintain confidentiality. In such a situation public disclosure of even true private facts may sometimes lead to the clash of one person’s right to be let alone with another person’s right to be informed. In another case the Apex Court said that the hospital or doctor was open to reveal such information to persons related to the girl whom he intended to marry and she had a right to know about the HIV-positive status of the appellant. The Court also held that the appellant’s right was not affected in any manner in revealing his HIV-positive status to the relatives of his fiancé. In matrimonial cases the petitioner would always insist on medical examination. In Selvi v. State of Karnataka, the Court held that narco-analysis, lie detection and BEAP tests in an involuntary manner violate prescribed boundaries of privacy. A medical examination cannot justify the dilution of constitutional rights such as right to privacy. In Bhabani Prasad Jena v. Orissa State Commission for Women, the Supreme Court said that if DNA test is eminently needed to reach the truth, the court must exercise the discretion of medical examination of a person.
In Sharda v. Dharmpal, the Supreme Court said that though the right to personal liberty has been read into Article 21, it cannot be treated as an absolute right. To enable the court to arrive at a just conclusion a person could be subjected to test even though it would invade his right to privacy. It concluded that one has to maintain a balance between the rights of a citizen and the right to privacy. It ultimately requires a healthy and congenial interrelationship between the social good and the individual liberty.
Privacy and data protection Privacy and data protection require that information about individuals should not be automatically made available to other individuals and organisations. Each person must be able to exercise a substantial degree of control over that data and its use. Data protection is legal safeguard to prevent misuse of information about individual person on a medium including computers. It is adoption of administrative, technical, or physical deterrents to safeguard personal data. Privacy is closely connected to data protection. An individual’s data like his name, address, telephone numbers, profession, family, choices, etc. are often available at various places like schools, colleges, banks, directories, surveys and on various websites. Passing of such information to interested parties can lead to intrusion in privacy like incessant marketing calls. The main principles on privacy and data protection enumerated under the Information Technology Act, 2000 are defining data, civil and criminal liability in case of breach of data protection and violation of confidentiality and privacy.
District Registrar and Collector v. Canara Bank, the Supreme Court said that the disclosure of the contents of the private documents of its customers or copies of such private documents, by the bank would amount to a breach of confidentiality and would, therefore, be violative of privacy rights of its customers.
In today’s time, our personal information is required for security purpose. We all provide the authentic institutes the specified information that are asked by them. It is provided on trust basis that our information is in the safe hands and will not be given to any unknown person without our knowledge. Though, the notorious netisens have become so smart nowadays that, they can acquire our personal information, which were not supposed to be leaked, by using there, so called hacking skills. Such netisens in India, are not even afraid of committing such offences since they know that laws are not properly framed yet, and also if they gets caught, they won’t be punished strictly. This is due to lack of data protection laws in India. Though, discussed above that India had taken few initiatives and also made amendments in IT Act 2000, we still need a separate legislation for handling such situations. India is still struggling for enduring an effective and concrete legislation for data protection. A new legislation dealing specifically with the protection of data and information present on the web is the dire need of the day. However, while drafting the laws, the legislature has to be cautious of maintaining a balance between the interests of the common public and tightening its grip on the increasing rate of cybercrimes. It is a need of the hour that a proper Data Protection laws are made, so that the citizens of the country are not under a constant fear of their personal details getting leaked and getting misused. It is also necessary for us, so that foreign companies who are willing to enter the Indian market are not afraid of doing so since no company would ever invest its time and money to a country which is vulnerable on its data and privacy protection.
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