“Every man’s house is his castle: Right to privacy and Information Technology (Amendment) Bill, 2006
NEERAJ AARORA, AICWA, LLB, PGD (Cyber Law), CFE (USA)
Privacy is a fundamental human right that has become one of the most important rights of the modern age. The right to privacy and the power of the State to encroach upon such right have been the subject of debate in almost every democratic country where fundamental, freedoms are guaranteed. History takes us back to Semayne’s case ((1603) 5 Coke’s Rep. 91a: 77 ER 194 (KB)) decided in 1603 where it was laid down that “Every man’s house is his castle.” One of the most forceful expressions of the above maxim was that of William Pitt in the British Parliament in 1763. He said: “The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter, the rain may enter – but the King of England cannot enter – all his force dare not cross the threshold of the ruined tenement.”
Privacy protected by various world-wide organizations:
Universal Declaration of Human Rights: Article 12 of the Universal Declaration of Human Rights (1948) refers to privacy and it states as “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
International Covenant on Civil and Political Rights: Article 17 of the International Covenant of Civil and Political Rights (to which India is a party), refers to privacy and states as “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation.”
The European Convention on Human Rights: The European Convention on Human Rights, which came into effect on 3-9-1953, also states in Article 8 as “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others.”
“Right to Privacy” an implied right under Fundamental Rights: The Constitution of India does not expressly recognize the right to privacy. There is no specific legislation pertaining to privacy in India. Though the right to privacy by itself has not been identified under the Constitution, but at the same time the right to privacy has been spelt out by our Supreme Court from the provisions of Article 19(1)(a) dealing with freedom of speech and expression, Article 19(1)(d) dealing with right to freedom of movement and from Article 21 which deals with right to life and liberty. The Supreme Court of India has reiterated the “Right to privacy” in many cases. Some of the important cases dwelling upon the “Right to privacy” are:
1.Kharak Singh v State of UP [AIR 1963 SC 1295]: In this case the foundation for the “Right to privacy” was laid down. In this case the regulations regarding domiciliary visits by police were challenged and the majority referred to Munn v. Illinois (94 US 113 : 24 L. Ed. 77 (1877)) and held that though our Constitution did not refer to the right to privacy expressly, still it can be traced from the right to “life” in Article 21.
2.Gobind v State of M.P. [(1975) 2 SCC 148]: It was stated in the case of Gobind v. State of M.P. reported in (1975) 2 SCC 148 that Right to Privacy is a ‘right to be let alone’ and a citizen has a right ‘to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters’
3.R. Rajagopal v State of Tamil Nadu [AIR 1995 SC 264]: A two-Judge Bench in R. Rajagopal v. State of T.N. ((1994) 6 SCC 632) held the right of privacy to be implicit in the right to life and liberty guaranteed to the citizens of India by Article 21. “It is the right to be let alone.” Every citizen has a right to safeguard the privacy of his own.
4.People’s Union for Civil Liberties (Pucl), Petitioner; V. Union of India And Another, Respondents [1997-(084)-AIR -0568 -SC]: It was held in this case that “Right to Privacy” as a concept may be too broad and moralistic to define judicially and whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case.
Thus, our Supreme Court articulates ‘protection of privacy’ as one of the features of the Fundamental Rights [Article 21 – Life and Liberty] to “protection of life and personal liberty”.
Privacy and IT Act, 2000: The IT Act, 2000 is a central legislation does not expressly define “Privacy” as a concept either under the definitional clause or elsewhere in the said act. However, the IT Act, 2000 contains some provisions which recognizes privacy protection and at the same time contains some provision which encroach upon the privacy rights. It would be interesting to note that the IT Act uses the word “Privacy” in two sections, i.e. Section 30 and Section 72. The various sections which recognize the privacy issues are discussed as under:
Section 30: This section requires certifying authority to adhere to security procedures to ensure that the secrecy and privacy of the digital signatures are assured.
Section 43: This section makes adequate provision for the aggrieved party to seek compensation (which may be upto Rs. 1 Crore) for unauthorized access to his personal/private data.
Section 66: This section also protects sensitive private information residing in ones computer resource as it inter-alia makes punishable “diminution in value of information residing inside a computer resource” with imprisonment upto 3 years. Thus, when an intruder hacks into the computer system and copies & transfers the sensitive personal information” to say competitor which may be of very high utility or of very private nature or commercial value for the owner, the said act results in diminution in value of information residing inside a computer resource” and thus violation of privacy.
Section 72: This Section talks about Breach of Confidentiality and Privacy, i.e., a Government official can be punished if he passes on electronic information/ data that he has received about an individual in his official capacity. The section has a limited application only. It confines itself to the acts and omissions of those persons, who have been conferred powers under this Act, rules or regulations made there under i.e. Police, Certifying Authorities and officers authorized by specific notification. The idea behind the aforesaid section is that the person who has secured access to any such information shall not unfair advantage of it by disclosing it to the third party without obtaining the consent of the disclosing party.
Further, besides recognizing the right to privacy, the IT Act also encroaches upon the right to privacy vide Section 69 of the said Act. Section 69 of the Information Technology Act, 2000 gives ample power to the law enforcement agencies when so authorized by the Controller inter-alia in the interest of security of the state to intercept any information transmitted through any computer resource which includes computer, computer system, computer network, data, computer data base or software. Further, it shall be incumbent on the person incharge of the computer resource to extend all facilities and technical assistance to decrypt the information. It may be argued that the aforesaid provision hits Article 19 of the constitution which guarantees right to freedom of speech and expression and Article 21 of the Constitution which guarantees “right to privacy” . Thus, when the electronic communication (lets say by mobile phone or internet) is sent by the user, they have the right to its privacy which is an extension of right to “life and personal liberty” as enshrined in the Constitution of India. Thus, any attempt to intercept the data traffic would hit Article 21 unless it is permitted under the procedure established by law. The Section 69 IT Act clearly points out that the Controller for reasons to be recorded in writing , by order, direct any agency of the Government to intercept any information transmitted through any computer resource. The legislature by the use of expression “for reasons to be recorded in writing” intent that the Controller must be satisfied that there exists compelling reasons in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, Public order, for preventing incitement to the commission of any cognizable offence which justify his order to intercept the information transmitted through any computer resource. Thus, the right to privacy can be encroached upon for compelling reasons as aforesaid.
Privacy under the proposed amendment to the IT Act:
The Personal Data Protection Bill is still not passed, we would continue to be under regime where there would be no special act pertaining to “Privacy”. Thus, for the protection of privacy, we have to look at the proposed amendment to the IT Act which addresses or touches upon the privacy issues. Under the proposed amendments, the privacy has been classified into two kinds, i.e. ‘Personal Privacy’ and ‘Data Privacy’.
While Section 43A and Section 72A address the Data Privacy whereas Section 66E directly addresses violation of ones personal privacy.
Data Privacy issues
Section 43A: Under this section the body corporate shall be liable to pay compensation if it is negligent in implementing “reasonable security precautions” with respect to “sensitive personal data”. The liability would arise if the negligence leads to a wrongful loss or wrongful gain to a person (43A).
Section 72A: A person including an intermediary is held liable if he discloses “personal information” which he accessed while providing services under a contract. The liability arises if the disclosure was made with an intention to cause or knowing that he is likely to cause wrongful loss or wrongful gain to a person(72A)
Personal Privacy issues:
The aforesaid section 43A and Section 72A to some extent also touches upon personal privacy issues besides data privacy. However, Section 66E directly addresses the personal privacy.
Section 66E: A new phenomenon of video voyeurism has emerged in recent times where images of private area of an individual are captured without his knowledge and then transmitted electronically widely without his consent thus violating privacy rights. This has been specifically addressed in newly proposed Section 66E.
However, it would be interesting to note that Section 69A protects right to privacy indirectly for example if any one’s objectionable nude photo is published on the website, the website may be blocked on making of complaint by the aggrieved party.
However Section 69 and 69B encroach upon the right to privacy, while Sections 69 of the amended Act empower the state to issue directions for interception, monitoring, decryption of any information through any computer resource, Section 69B empowers the government to authorize to monitor, collect traffic data or information through any computer resource for cyber security. In addition to the existing circumstances under the IT Act, like in the interest of national security, sovereignty, public order etc., the central government may intercept /monitor any information transmitted through any computer resource also for investigation of any offence. There is wide reasonable apprehension in the mind of legal experts that this provisions giving blanket powers to the government to intercept or monitor any information through any computer resource, would soon become a common practice and would grossly violate one’s personal privacy as it is obvious that one’s computer system contains very personal data and information and by virtue of this section, the government would have unfettered right to intercept or peep into electronic communication of even bonafide persons. This can further be misused by ruling government against their political adversaries, violating their privacy rights. This lacuna has to be addressed before the amendment comes in to force.