Right To Privacy in the Technology-Driven Era

Author- Janvi Vishnani

Introduction

Technology is regarded as a catalyst in the progress of India since its inception. Technology has been accepted and adopted into our everyday lives. A dramatic acceleration in technological innovation and progress can easily be seen in the twenty-first century. With the advancement of the internet and its expansion of we are seeing a technological world, But, as with any positive, there are certain drawbacks. As the world progresses day by day thanks to technological advancements, the number of cases involving privacy infringement grows.

To comprehend the effect of technological advancement on privacy, it is necessary to first define the term “Right to Privacy.” The term privacy can be referred to as “The condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions.” Privacy can be described as a “kind of social isolation,” “right against unwarranted state interference”, and also a “right free from any intrusion with an individual’s personal life or relations. The right to privacy is not explicitly mentioned in our constitution but with the Supreme court interpretation, It has been articulated in the Indian Constitution’s Article 21. However, it cannot be regarded as an absolute right because certain restrictions have been placed on it.

Right to privacy:- Judicial interpretation

As mentioned above right to privacy is not explicitly mentioned in our constitution so the bone of contention that was in front of the judiciary was whether the right to privacy is included in the right to live with personal liberty?

In 1954 MP Sharma Vs. Satish Chandra, In this case, a company challenges the investigation process to the Supreme Court claiming that during the investigation of search and seizure various personal document is also checked and which is an infringement of the right to privacy. The Supreme Court ruled that “For the security of the state, The state has given the overriding power for search and seizure”, and also rejected that in the Indian constitution there is no existence of a right to privacy under Article 20(3), due to absence of a clause in US fourth amendment.

Further, In Kharak Singh v. The State of Uttar Pradesh & Others”, which involved the legality of suspect surveillance, The Supreme Court decided that Article 21 of the Constitution protects a person’s right to privacy and that breaking into his home and causing him distress is a violation of his personal liberty.

Another landmark case for the right to privacy is PUCL v. Union of India in which the conditions for telephone wiretapping defined. The Supreme Court ruled that the right to privacy is an integral part of the universal right to life enshrined in Article 21 of the Constitution and that this right is only applicable to the government.

In an extraordinary and landmark judgment, K. S Puttaswamy v. Union of India”, the right to privacy was proclaimed a fundamental right that falls under Article 14,19,21 of the Indian constitution, It is implicitly embedded in the right to life and liberty.
It was proclaimed that the “right to privacy is a fundamental and inalienable right that protects citizen’s personal information any act by anyone, including the state, that violates any citizen’s right to privacy is subject to strict judicial oversight”.

However, the Supreme Court cleared that though the right to privacy is a fundamental right, but this right is not absolute, it has a certain “reasonable restriction”, and the state must meet three conditions established by the Supreme Court in order to impose these restrictions, they are:

  • “Existence of legislation that justifies an infringement on privacy;
  • A valid State purpose or need that assures that the essence or substance of this law lies within the zone of reasonableness and functions to protect against unconstitutional State action;
  • The means pursued by the State are relative to the purposes and needs sought to be met by the law.

Threat to privacy: Technology

We are currently living in the “digital world”, in this period economic and other activities are primarily data-driven. This is because of technological advancement. This shift to the technology-driven era brings some new ethical and legal challenges, mostly concerning issues such as the right to information, the right to privacy. In the new millennium, since the majority is closely associated with technology and it is becoming more invasive to our personal lives.

In the 21st century, there are social media users in India. When we register on social media we provide our basic details such as date of birth, age, sex, mobile number etc.  The details get saved with the respective platform and this personal data becomes a valuable asset for the big firms, the big tech sold our data’s to company. The recent allegation on Facebook for exposing the confidential information of over 533 million people around the world. The claimed data breach allegedly involves the personal details of 6 million users in India, as per country-by-country breakdown. Since the leaked data dump contains phone numbers, full names, locations, emails, and other information, security experts have cautioned that it may be used to commit fraud by impersonating an individual.

In 2016 After being purchased by Facebook Inc., WhatsApp Inc. changed its privacy policies, all account data of Whataspp would be exchanged with Facebook to improve advertising and product experiences of Facebook, and users were asked to adhere to the new conditions for continued use of WhatsApp on or before September 25. While resolving the case, the Delhi High Court stated that if users choose to delete their WhatsApp accounts entirely, WhatsApp will delete all user data from its servers and will not share user data with Facebook.

This is not the recent allegation on Facebook previously also there is a various allegation for breach of personal data. As the phone number is linked to every account the phone tapping becomes much easier as in India the Supreme Court also interpreted that the telephonic call is the private part of men’s life and intruding this could be an invasion of privacy.

Another tool that is used is individual surveillance (including GPS and radio frequency ID) is used to map a person’s location in real-time. RFID tags (Radiofrequency recognition devices) may be used for both identification and tracking. RFID codes in employee ID badges tend to be used by certain organisations. Many people have raised concerns that being tracked by another person is not only an infringement of the right to privacy but also the freedom of movement.

The recent pandemic also makes us think about the issue of privacy. Due to the global pandemic, our government made it a compulsion to download the ‘Arogya Setu’ app. The Aarogya Setu software uses Bluetooth technologies and is similar to Google’s and Apple’s communication tracing apps. It gathers GPS location data, as like Apple and Google.       

The government’s new rules allow it to gather statistical, contact, self-assessment, and location from people who have been infected with the coronavirus or others who come into contact with them. Other apps gather only one data point, which is then replaced with a scrubbed user id, but Aarogya Setu gathers multiple personal and confidential information, which poses a greater risk of privacy.

The new emphasis on the right to privacy reflects the reality of the modern age. ID theft, piracy, and misrepresentation are serious issues for India because India is emerging as one of the fastest digital economies. When more and more activities are conducted over the Internet, personal data is becoming more vulnerable to fraud and misuse. Thus, every data collection framework should account for privacy concerns and provide protocols to safeguard citizen data.

Privacy laws in India

Right to privacy in India is a mix of civil, traditional, and common law rights dispersed through different legal fields. In India, the right to privacy is a socio-legal right but in India, there is no unified law governing the right to privacy. Many laws guarantee the right to privacy, either explicitly or implicitly.

  • The Indian Telegraph Act, 1885

Under the Act’s rules, Section 5(2) authorises the interception of messages. In “People’s Union for Civil Liberties v. Union of India”, the Supreme Court established some procedural protections to be followed before using section 5(2) of the Act. Under this act, anybody does not have the power to use this act as per its discretion. Public emergency or national emergency is the sine qua non for the implementation of this provision. A phone call that takes place in the privacy of one’s home or office without interruption will undoubtedly be considered a right to privacy.

  • Information Technology Act 2000

According to Section 66E of the IT Act, “whoever intentionally or knowingly copies, publishes, or transmits a photograph of a private piece of information of any person without his or her consent, under circumstances violating that person’s privacy, shall be punished with imprisonment for a term not exceeding three years or with a fine not exceeding two lakh rupees, or both”

Persons who obtain access to such data in compliance with the Act’s powers are usually prohibited from disclosing the data, and if the data is disclosed, the individual will be liable for a term of up to two years in prison or a fine of up to one lakh rupees, or both, as per section 72 of this act.

Under Section 43A 2011 IT  Rules these additional provisions incorporated pertaining to the storage and dissemination of confidential personal details. The IT Act and Rules have no restrictions on the use of confidential personal data or information for targeted marketing purposes.

Even though, we have all of these provisions and laws that are linked to privacy in some way, if not explicitly. But due to the advancement of science and technology, as well as the widespread use of computers, the challenge of preserving people’s privacy has become extremely complicated, and current regulations are insufficient to address privacy-related problems in the digital age.

Conclusion

The concept of “privacy” has been described as an individual’s right to control the level to which he wishes to disclose himself in front of others. Many states have not directly granted their people the right to privacy, rather, it has been gained through judicial interpretations. The constitution was made 70 years ago hence the framers of the constitution could not have anticipated the above right in the Constitution but today its has become more advanced than the lives of the generations that wrote the constitution. Thus, the process of resolution should be changed to deal with newly arising issues.

Apart from this, we have many statutes that guarantee the right to privacy in every manner. However, there is no legislation that covers complicated issues of privacy in today’s modern world, such as personal data, classified information, and so on. Thus, strict legislation covering all facets of privacy is required. The government has to protect the interests of its people. In India, there is a general lack of concern about one’s privacy. the government should educate the public on the importance of personal data.


Janvi Vishnani is a first-year law student at Narsee Monjee Institute of Management Studies (NMIMS) Navi Mumbai campus, currently pursuing BA.LL.B (Hons).