The Internet and Mobile Association of India has proposed an internet ombudsman model to the Ministry of Information and Broadcasting.
• An ombudsman is an official, usually appointed by the government, who investigates complaints against businesses, financial institutions, or government departments or other public entities, and attempts to resolve the conflicts or concerns raised, either by mediation or by making recommendations.
• Depending on the jurisdiction, an ombudsman's decision may or may not be legally binding.
• The Supreme Court has declared access to internet a fundamental right under Article 19. A government cannot deprive the citizens of fundamental rights except under certain conditions explicitly mentioned in the Constitution.
• The Supreme Court ruling is also in sync with the United Nations recommendation that every country should make access to Internet a fundamental right.
• A nine-judge bench of the Supreme Court in the case of Puttaswamy v. Union of India has declared that the right to privacy is a fundamental right protected under Article 21 of the Constitution of India.
• However, the Supreme Court clarified that the fundamental right to privacy is not absolute and will always be subject to reasonable restrictions.
Impact of Internet on society
• The Internet have brought their own revolution in human daily life (science, education, information, entertainment etc) eliminating the distances and offering immediate and easily access to information and communication.
• With the continuous development of new technologies, the Internet users are able to communicate anywhere in the world to shop online, use it as an educational tool, work remotely and carry out financial transactions with various services offered by banks.
• The infinite possibilities that are offered by the Internet can often lead users to abuse it, or to use it for malicious purposes against other users, organizations and public services.
• With the rapid spread and growth of the Internet, they have appeared some social phenomena such as cyber-bullying, internet pornography, grooming through social networks, cyber-suicide, Internet addiction and social isolation, racism on the web.
• Moreover, there is always the risk of any sort of fraud exploitation by the so-called experts of technology systems who use Internet as a mean to carry out illegal acts.
• In the interplay between government, companies and citizens for big data, information asymmetry has become so skewed that it has eroded the very spirit of democracy by limiting the unbiased communication of ideas.
• Governments and private companies are using the Internet as ‘a means of control and surveillance, extending from cases of fraud detection, storage and exchange of criminal and financial records to those of political surveillance and control’.
• Citizens who receive a flood of unfiltered information, information with colour but no patterns, information with images that can never add up to the real picture, re-circulate the same back into the infantile world for greater chaos.
Need for ombudsman
• On the privacy front, even after the Supreme Court of India had declared privacy as a fundamental right, the government insisted on affidavit in the top court that informational privacy or data privacy cannot be a fundamental right.
• The Aadhar Act diluted the notion of ‘privacy’ and the standard of proportionality test set up by the Supreme Court.
• The clear impression is that the government is more interested in ‘control’ than ‘protection’ of data.
• A national policy on data privacy of individuals is still a non-starter. People continue to suffer because of the regular incidents of data theft.
• India’s cyber security watchdog, CERT-In, reported huge data theft of Facebook and Twitter users by malicious third-party apps.
• Reportedly, more than 1.3 million credit and debit card details from Indian banks and the data of 6.8 million users from an Indian health-care website were stolen in the same year.
• Private data analytics companies have emerged to exploit the electoral process with the sole objective of customising political messaging. While the customisation of political messaging is not per se illegal, it certainly is unlawful to indulge in unauthorised data mining and collection by the industry.
• According to a report by Omidyar Network India and Monitor Deloitte, many private enterprises routinely share the personal data of individuals with third parties including political organisations.
• The fact that there are dedicated IT cells which carry out a digital form of warfare with propaganda and fake news being two powerful weapons is making things more complicated.
• The present legal framework leaves these menaces outside the ambit of election laws as they were framed in a time and space that was primitive when compared to contemporary technological advancements.
• For citizens, digital media are carriers of images and sounds, rather than words and thoughts, and the system where images run faster than thoughts is suitable for the spread of fake news.
• The fake WhatsApp forwards that triggered the primitive “Us v/s Them” group mentality and is manifested in Delhi riots reports, and the forwards on the novel coronavirus which declare COVID-19 a bacteria and the World Health Organization stating that vegetarians cannot be infected with COVID-19, are all reminders of the potency of data, true or false, in a democracy.
• The Personal Data Protection Bill is more about control and surveillance than about promoting privacy and protection of data.
• Section 35, which provides the government with unfettered access to personal data, negates the three tests of legality, necessity and proportionality given by the Supreme Court in Justice K.S. Puttaswamy vs Union of India.
• The Bill also allows State and private parties to process personal data without obtaining consent and such broad exemptions would not only open the floodgates for misuse but also reduce India’s prospects of entering into bilateral arrangements for law enforcement access.
• So, there is a need of a gatekeeper to balance appetites for technology, security and privacy. So long as the gate keeper is for regulation, not surveillance, and so long as it is completely and genuinely independent.
• Only an Internet ombudsman with experts on cyber and Internet laws, IT, data management, data science, data security, public administration and national security, and consciously involving eminent sections of civil society, can be an effective antidote to unregulated technological disruptions.
The Internet benefits are numerous and contribute to the progress and prosperity of humans in all areas. However, Internet is provided in abundance and is easily accessible and the illogical use of the Internet makes it be quite dangerous, especially for young users. It is important to understand how government, political parties and citizens are responding to this new triangular interplay between data protection, privacy and a flow of information.