Today's Editorial

04 September 2017

Privacy and technology



Source: By Baijayant Panda: The Financial Express



It is historic that a 9-judge Constitution bench of our apex court has unanimously upheld the long-standing tradition of the right to privacy and bestowed it the status of a fundamental right. To simplify what that means, our right to privacy will be treated on a par with our freedom of speech and expression. This is of momentous significance as privacy underpins the right to life and personal liberty which forms the bedrock of any democratic society. This progressive interpretation of individual privacy rights propels us into the elite bracket of countries like the United States of America, England, Singapore and Australia.


Globally, digital rights are being protected as a part of human rights and data protection is being emphasised. An underlying theme cutting across the opinions of all judges is their concern about informational privacy and rapidly-growing technology. Justice Nariman mentioned in the judgment that it is paramount to judge the right to privacy according to “today’s context and not yesterday’s”. In today’s context, an absolutist interpretation of privacy would lead to a direct stifling of technology, innovation and good governance. Elizabeth Denham, UK’s Information Commissioner, has argued that it does not have to be “privacy or innovation—it is privacy and innovation.”


The personal information economy can be a win-win for everyone, consumers and businesses both benefit if we get it right. Rather than viewing privacy as a trade-off to innovation and improved services, it should be seen as a mutually reinforcing process where the growth of information sustains privacy and trust. It is, without doubt, difficult to strike a balance between the protection of our privacy and the constant innovation of technology, however that balance is essential for free societies in the 21st century. Innovation through data has had many beneficial outcomes across various sectors, like early detection of flu outbreaks in the health sector, prevention of illegal fishing, delivering environmentally responsible waste collection, reducing energy usages in buildings, creating evolved customer service systems, enabling transportation agencies facilitate traffic management and technological solutions are now being applied for better governance as well.


In his detailed opinion within the judgment, Justice Chandrachud speaks of the possibility of effective and better governance with the help of technology-enabled solutions towards ‘preventing the dissipation of social benefit schemes’ which leaves the window open for the continuation of Aadhaar and its coexistence with privacy. Even though the debate about privacy sprung from the Aadhaar issue and its data privacy concerns, it is important to focus on the fact that Aadhaar is not a competing right to that of privacy and does, in fact, aid social welfare schemes and better governance. The Supreme Court judgment has acknowledged the impossibility of surviving without technology in this day and age while also impressing upon the need for better regulation to protect ourselves against misuse or abuse of data, among other things.


I have long argued that data is the new oil and must be regulated strictly in India. We live in a world where we mindlessly share our data through mobile applications and websites, who might go on to share this data with third parties. Our existing laws are not equipped to deal with cases where there is a data breach or even duplication of data. My Private Member’s Bill, the Data (Privacy and Protection) Bill, proposes the appointment of data handlers specifically for the regulation of the data ecosystem and ensuring compliance.


Data handlers would be responsible for fortifying security measures to prevent data breaches and would be responsible for informing individuals in case of breaches, among other things. On the issue of surveillance, the Supreme Court’s verdict lays down ‘reasonable restrictions’ for when a citizen’s right to privacy may be abrogated. While no right can be absolute, it is critical to be unambiguous in the interpretation of these exceptions. The use of the term ‘reasonable’ is a broad parameter for the denial of a fundamental right.


National security, for instance, is a valid concern but we cannot allow wanton surveillance under its guise. This is why my Bill provides for a Data Privacy and Protection Authority, a quasi-judicial body, which would check for compliance with the law and also have punitive authority. It would include surveillance under its purview—the state may keep watch on its citizens under very strict guidelines and rules. The Bill clearly lays down that surveillance of citizens shall be done in a time-bound and rule-bound manner, under strict checks and balances.


The judgment has expounded a three-tier test for “valid encroachment of privacy” through a three-fold requirement involving legality, legitimate state aim and proportionality to ensure a “rational nexus”. Legitimate state aims should aspire to be as narrowly-defined exceptions, like those found in the American context. These narrow exceptions are specifically laid down in the Brandenburg test which defines the prevailing standard to determine protectable speech.

It lays down two strict circumstances—inciting imminent lawless action and likelihood to incite such action—where speech can be controlled. Even as our Supreme Court has adopted this narrowly defined two-step test in a judgment, it is a long way from being incorporated as legislation. This concern is shared by Justice Chelameswar who says there is a requirement for “narrow tailoring” to achieve the required contours of privacy. With the declaration of our newest fundamental right, the need for informed consent grows. It draws attention to the fact that informed consent has existed in countries like the US in forms of medical consent, where it is the duty of every doctor and right of every patient to be taken through the fine print of the medical procedure. In contrast to the fine print that we fail to read when we give our consent to apps we download on a regular basis, this right to privacy will now change the way we give consent and the way our consent is taken.

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