ABSTRACT
The world we live in today, which is characterized by ongoing technological and electrical improvements, provides us with several conveniences that make life easier. Even though there are claims that privacy protections have been increased, this advancement also exposes people’s privacy to more risks with each subsequent update. Individuals in India are at risk since there is no comprehensive law protecting personal data privacy. The current IT regulations are insufficient and do not offer enough security. The security of one’s personal information is not 100 percent guaranteed, even if they believe they have taken precautions to protect it. One’s privileged information can be quickly and easily retrieved on the dark web. One’s privacy being violated is more likely to happen the more they interact online. When people think about buying something, a curious occurrence occurs soon after, social media feeds show adverts for the same things, giving the impression that someone is paying attention. As more individuals use the internet and voluntarily divulge their privileged information, privacy rights are becoming increasingly important in our daily lives. The existing privacy protections we enjoy were created in an era when telegrams and telephone lines were common, without considering the challenges of the modern digital age.
KEYWORDS
Privacy, Digital era, Article 21, hacking, arbitrary interference, Aadhaar Scheme, right to be forgotten.
INTRODUCTION
Gabriel Garcia Marquez once said, “All human beings have three lives: public, private and secret.” Privacy is not an option, it is a right, which we are not getting. No Law for privacy is there in the law, but Article 21 of the Indian Constitution gives rise to right to privacy and Article 12 Universal Declaration of Human Rights states that, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attack upon his honor and reputation.” Still, it does not provide us with full privacy, nor does it provide us with the meaning of privacy.
In this digital age, our privacy is breached in many ways. For example, Google timeline, it tracks your location throughout your day. The Digital Personal Data Protection Bill passed in 2019, its motive was to reinforce “Right to privacy” to Indian Citizens, but in the bill itself there is nowhere mentioned the meaning of privacy. IT rules, 2021 provide for consent before accessing one’s personal data, but many times the government department takes over one’s data without consent.
This research paper indulges into making people aware of their privacy rights in this digital age. History to the privacy rights. It moves on to what they can do when police keep an eye on them without any legal procedure or when their privacy is being violated. Does the Digital Personal Data Protection Bill help the Citizens of India in any way. It will also provide knowledge of the existing rights, framework, and government surveillance practices. A check on privacy and security and people with minimal privacy rights. And lastly it will look over some cases of privacy rights violations from U.K. and India.
RESEARCH METHODOLOGY
The research for this paper was conducted secondarily in a subtle way. Books, journals, and articles were studied and analyzed in a subtle way. These were collected via Jstor, Google Books, Article 14, SCC online, Ted Talks, OHCHR, Dr. Michael Gerrard from Columbia University’s research on privacy and PRS legislative research India, which is quite significant.
REVIEW OF LITERATURE
Contrary to what is commonly believed, scientific sources such as articles, journals, books, and a TED talk gave in-depth information on previously disregarded privacy rights. They made subtle mention to well-known Indian court cases that showed evolution and respect of privacy rights. Contrary to common opinion, this study examines crucial information, difficulties, and prospects of privacy rights in the digital age. The scant examination of other privacy-related rights, such as freedom of expression in defamation proceedings, stands out as a deficiency in these articles. This topic was only covered in one paper, “Balancing Rights in the Digital Age” by Siofra O’Leary. Lack of attention to innovative technologies that threaten privacy rights is another significant issue. This essay seeks to discuss the ignored issues in these sources.
PRIVACY RIGHTS EVOLUTION
Privacy rights is a fundamental right which can be traced back from Dharam shastras where it is said that privacy rights in India were introduced in India via Kharak Singh Case in 1962. The Constitution of India, 1950 provides us nothing with privacy but it provides us with two of such articles which includes rights to privacy somehow, those are, Article 21, right to life and liberty, and Article 19, freedom of speech and expression.
In Kharak Singh case, honorable supreme court of India provided us that the privacy rights are a part of Article 21 of the Indian Constitution, and it also recognized it by acknowledging that the right to privacy is nowhere mentioned in the Indian Constitution. It also said that privacy rights are not absolute, but they can be restricted by law in places where public and private law collide.
This right was recognized as a fundamental right in the case of K.S. Puttaswamy vs. Union of India, 2017[1], where the honorable Supreme court of India clarified and presented privacy as a fundamental right uprising from Article 21 of the Indian Constitution. The honorable judge of the case gave out many sections in the judgement of the case, those were, the references, decisions in M.P. Sharma case, Decision in Kharak Singh case, Gopalan doctrine: fundamental rights as isolated silos, Cooper and Maneka: Interrelationships between rights, Origins of Privacy, Natural and inalienable rights, Evolution of the privacy doctrine in India and The Indian constitution (Subsections: preamble, jurisprudence on dignity, Fundamental rights cases, No waiver of fundamental rights, privacy as intrinsic to freedom and liberty and Discordant Notes (ADM Jabalpur and Suresh Kaushal)). The main question which arose in this judgement was whether the decision in M.P. Sharma v. Satish Chandra Case of Delhi High Court and the decision in Kharak Singh Vs. State of Uttar Pradesh correct in the law? And the second question was that if the privacy right was an intrinsic part of the Article 21 of the Indian Constitution? These questions were answered in a vast manor by the majority opinion of honorable Justice D.Y. Chandrachud on behalf of honorable Chief Justice Khehar.
This case was brought in by the Justice K.S. Puttaswamy (Retd.) to challenge the constitutional validity of the Aadhaar scheme which was introduced by UPA Government. The Aadhaar card contains all our information, it contains all our fingerprints, cornea scans, and many of the documents are linked to it. If one gets access to our Aadhaar card, then we do not have any privacy remaining to us, it is exposed to the person who has access to it. This scheme was brought to decrease corruption, ensure transparency, and bring about financial inclusion. This expansion could breach the privacy of the citizen of India as the Aadhaar card contains all our privacy. The case will be giving its judgement examined the correctness of the decision of both the cases, and the honorable judges stated that we must decide whether we have a fundamental right to privacy. This case was concluded on August 2nd, 2017, recognizing that privacy rights are a part of Article 21 of the Indian Constitution, and it will be protected under it because if Aadhaar will be enabled for more government services, our privacy rights will be breached, that is, Article 21 will be breached. The judgement made in M.P. Sharma case and Kharak Singh case were overruled by this judgment.
This case was also cited as a precedent case in Joseph shine case and Navtej Singh Johar case. Hence, Privacy rights came into light and was given a position as a fundamental right after this case. The Digital personal data protection bill, which was withdrawn in 2011 in Lok Sabha, got light but was not viewed again in this case.
PRIVACY RIGHTS INVOLVING WITH OTHER FUNDAMENTAL RIGHTS
Right to be forgotten, right to life and Liberty, Freedom to speech and expression, right to equality, right to non-discrimination and right to due process, all these fundamental rights are included under the Right to privacy. In other words, all these fundamental rights involve right to privacy in them, as right to privacy is only recognized and not written in the Indian Constitution.
Right to be forgotten, it falls under right to privacy, which helps the citizen of India to make IT of any website or social media remove their data and leave no trace of it anywhere on any platform. This right is provided under right to privacy because if a person’s data or information is on any sort of portal without their permission, it can be misused, and their information can be used by other people or hackers for hacking into their devices or hacking their other data.
Right to life and liberty, Article 21, right to privacy is recognized under this article as keeping things or information or some of the data is person’s right, he has some people who he has a trust and on some he does not. It is his choice to reveal his information to whomever he wants, that is a human life and choice that he must make, to reveal whatever he wants and to whom. As if anything confidential is leaked that can put the person leaking the information into a defamation case if it causes any sort of defamation to the person, who is the owner of the information or data.
The right to equality and non-discrimination are connected to privacy rights as people tend to hide things for their benefit and to achieve equality. In Indian institutions or schools, we make friends without knowing anyone’s caste, gender, or religion, because that type of information is not supposed to be disclosed for equal treatment of them and not face discrimination, like previous era.
Freedom to speech and expression, Article 19(1), it comes with privacy, because citizen of the country would like to have their privacy when they are talking to anyone. They are supposed to have freedom of speech and they should have freedom to express their emotions and speech in any way they want, without any fear of it being leaked. Now, if you record your calls, when starting the recording the other gets to know that you are recording them. The best example of the breach of privacy connected to freedom of speech and expression is, WhatsApp privacy policy case, where people had a problem in excepting the new privacy policy of the WhatsApp, which was updated in 2022, because it had, that they will be monitoring the chats and all the calls made. This was a breach of the privacy rights of the individuals accepting it. The case is still going on.
In accordance with article 21, the right to due process requires governments and other organizations to keep the data they collect on an individual confidential by keeping it confidential and will not disclose it to the public or anyone else. It is important that there is a reasonable explanation behind every limitation of an individual’s privacy that is placed upon them.
CHALLENGES AND AWARENESS ON THE PRIVACY RIGHTS
The challenges on privacy rights include phone tapping, leaking information, credentials, being viewed and navigated without your knowledge. Many times, we say something about buying and our social media handles start showing us advertisements according on the same. It feels like they are hearing us and watching over us all the time. The advertisements we come across on the web while reading an article often leads us to some surveys, by which we can be tracked, and our information is released easily.
Hackers are on the second number of tracings you, the one who comes first is the Police or FBI, if they find anything fishy, they tap your devices and surrounds you by drones and keeps a check on you and follow your every step and collects of the information. Though a certain provision in IT rules states that, Police cannot touch your data without your consent. Still there are many cases in the courts all over the world where people have sued the government for tapping them. Some examples of these types of cases are WhatsApp Privacy policy case, Katz vs. US. The US Court cases which lead to the formation of privacy rights there are Olmstead Vs. Us, 1926, where Honorable. Justice Taft concluded, there is no right to have a private conversation in the US Constitution. After almost 40 years of this case, another case in the court came in, which was, Griswold vs. Connecticut, in this case the privacy produced the phrase, “penumbra” or privacy zones, which created a legal fiction of rights. After 3 years in 1967, Katz Vs. US was fought in the US court, which was a case about being arrested right after the call was made. And when it was found out the call was being recorded in the government system. The honorable court, using the term privacy zone created the right to privacy to the citizen of the country. It also, created two-part test, first part was a subjective test, where the question, “do you want privacy?” came up and the second part was an objective test, where the court stated, “what would society except to be kept private in the said scenario?” These tests were found reasonable and easy to follow.
The most recent case which is coming up is of Telegram’s bot, Deepfake AI, by which hackers or any person make someone’s pic which was uploaded on their social media handles, this ai turns that person in the photo naked and by that photo the victim or the person whose photo that is being threatened and are breaching their privacy and security and causing them mental issues. Earlier this used to happen but it was done via editing and then the victim was threatened, but now a days, so threaten someone, people have started using this ai, which leaves no proof behind that it has done the editing on the pic. To conquer this privacy and security breach is the biggest challenge currently.
WHY MINIMAL PRIVACY RIGHTS FOR PEOPLE LIKE JAIL PRISONERS
A study states that people with minimal privacy are more diagnosed with depression, anxiety and it is often manifested in the physical pain of the person.
People with minimal privacy rights include, the beggars, roadside people, prisoners, etc., this is because some of the limited legal frameworks, in some country’s privacy rights is still considered as outdated, thus they only provide people to have protection on their very personal information and data. The people in countries like North Korea, which is an authoritarian regime, has minimal privacy rights, people there have almost zero privacy and are always monitored and tapped, to maintain the country rules, people who breach them and indulges in activities or gets dissenting views are considered as threaten to the regime. The beggars or the people who do not have any houses, they have maximum struggle in keeping their privacy rights, even after their country provides them with rights to privacy but because of some certain reason, for example, monetary crisis, lack to access of internet connections, etc. makes them suffer to keep their privacy. As a result, their personal information is easily and frequently leaked, and is misused.
WHAT DOES FUTURE HOLDS FOR OUR DATA PRIVACY?
The future is unpredictable and with every update and technological development, there are and there will be surveys asking for your information and data. This data collection is done to get an insight on what consumer/customer wants from them. But this data is sent to other people, in other words the companies/government/other organizations they sell our data to them. As India adopts proactive measures to secure personal information, the country has enormous promise for the future of data privacy. India is demonstrating its commitment to establishing a thorough framework for data privacy with the adoption of the Personal Data Protection Bill and the proposed creation of a Data Protection Authority. India seeks to achieve a balance between privacy and technological progress by include clauses for data localization, guaranteeing individual data rights, and addressing developing technologies. Also helping to shape a future where people have more control over their personal data is the growing public awareness of and campaigning for data privacy. Although there are still obstacles, India’s commitment to protecting data privacy sets the country on a promising course for a future where citizens’ privacy rights are protected in this digital age. But it still needs to have an awareness program on it, like, informing students on what to see, which forms can be filled, what to information can be given, etc.
CONCLUSION
Concluding with, “Its innate in us to want to take certain facts and certain details about our lives and keep them to ourselves and only release them to people that we trust, people that we value and people that understand us.” Privacy rights recognized as fundamental rights in the K.S. Puttaswamy vs. Union of India case in 2017 and marked a significant milestone, when the Indian Constitution did not recognize it as a fundamental right rather it was mentioned as an intrinsic part of article 21 in M.P. Sharma case.
Despite these court rulings, however, privacy challenges remain in the digital age. Technological advances have created new opportunities for data breaches and surveillance. Platforms such as social media, search engines and smart devices collect vast amounts of personal data, often without fully understanding the consequences. The problem becomes even more complex when government agencies access personal data without due legal process or without the consent of individuals. While laws and regulations such as the Digital Personal Data Protection Act and IT Regulations aim to address these issues, there remains a need for clearer and stronger enforcement mechanisms.
In addition, those with minimal privacy rights, such as prisoners and marginalized groups, face other challenges. Their lack of access to resources, technology, and legal support leaves them vulnerable to invasions of privacy. It is important to address these differences and ensure that privacy is protected for everyone, regardless of their social, economic or legal status. Looking to the future, the data privacy landscape remains uncertain. Rapid technological advances, such as artificial intelligence, machine learning, and big data, are posing new challenges and concerns. As individuals, we need to navigate this complex terrain by being alert to the privacy policies of the platforms we use, understanding the risks and impacts of sharing personal data employees, while actively advocating stronger privacy protections. At the societal level, efforts should continue to raise privacy awareness, educate individuals about their rights and responsibilities, and promote digital literacy. Governments, technology companies, and civil society must work together to develop comprehensive frameworks that strike a balance between innovation and privacy. Proactive measures, such as conducting privacy impact assessments, implementing strong encryption standards, and ensuring transparency of data collection practices, are needed to protect rights privacy in this rapidly changing digital landscape. Privacy is fundamental and indispensable in the digital age. Maintaining and protecting these rights requires the collective efforts of individuals, governments and organizations. By adopting privacy-conscious practices, advocating stronger legal protections, and fostering a culture that respects and values privacy, we can move toward a future where the privacy of individuals is protected and where they can navigate the digital world with confidence and autonomy.
REFERENCES
Nuala Connor, Privacy in the digital Age 17–28 (2015).
France Belanger, Privacy in the Digital Age: A Review of Information Privacy Research in Information Systems 1017-1041 (2011).
Siofra O’Leary, Balancing Rights in the Digital Age, 59-92 (2018).
OHCHR, The right to privacy in the digital age
Tehilla Shwartz Altshuler, Privacy in a digital world (2019)
BY: Soumya Agarwal
O.P. Jindal Global Law University
[1] Justice K.S. Puttaswamy vs. Union of India – South Asian Translaw Database – Privacy (2021) South Asian Translaw Database. Available at: https://translaw.clpr.org.in/case-law/justice-k-s-puttaswamy-anr-vs-union-of-india-ors-privacy/ (Accessed: 11 July 2023).