Informational Privacy And Non-State Actors

    Without privacy there is no point in being an individual 

    – Jonathan Franzen

    INTRODUCTION

    The right to informational privacy, as a concept, is a branch or extension of the right to privacy. Article 21 of the Constitution protects the right to privacy of an individual and helps in maintaining and promoting the dignity of the individual[1]. The right to privacy provides for the specific rights of any individual to control the collection of his/her personal information and use and disclosure of that information. This information (personal) could be in any form like personal interests, habits, activities, records of the family, records of education, mail and telephonic records, records of medical history and status, financial records, etc. 

    Here, the pertinent question arises as to “Why is there a need to grant the right to privacy or even to protect it?” An individual can be easily harmed by the stored data of his/her privacy which can be inappropriate, inaccurate, and misleading. 

    The Concept has been taken in different ways in different situations. According to Warren and Brandeis “once a civilization has made a distinction between the life of the soul and the life of the body, the idea of a sphere in which men may become and remain himself.” In modern society also the right to privacy has been recognized both in the eyes of law and also in common parlance. But in different legal systems, it varies because they emphasize different aspects. 

    Privacy is a value, a cultural state or condition which is directed towards individuals based on their collective self-realization which varies from society to society.

    INFORMATIONAL PRIVACY

    According to Article 21 of the constitution of India,”no person shall be deprived of his life or personal liberty except according to the procedure established by law “. It is to be noted that the constitution does not specifically recognise the right to privacy as a fundamental right. But the Indian Court holds a more comprehensive view. It has been held several times that right to privacy exists under the right to life as guaranteed under Article 21 [2]. 

    The privacy jurisprudence in India has developed over a long period of time. It has developed following various landmark cases concerning the question of privacy. To name some cases which have helped in shaping this jurisprudence are, Kharak Singh v. State of Uttar Pradesh and Ors [3]. In this particular case, the Supreme Court recognised the right to privacy as a fundamental right though by the minority judges (minority opinion). In the case of R. Rajagopal v. The State of Tamil Nadu, the Supreme Court held that the right to privacy as a fundamental right. They opined that it is a ‘right to be let alone'[4].

    The landmark case of K.S. Puttaswamy(Retd.) vs. Union of India [5]  has further contributed majorly in the development of informational privacy. The court had shown great vigour defending the right, and clarity of its understanding as shown by the court is likely to impact judicial decision-making for a long time. In today’s age where data is a new oil, it has become a cliché, it’s useful to understand how this judgment has bolstered our right to informational privacy. This judgment is also important so far as technology-related issues are concerned. It displays remarkable and applaudable clarity in outlining contemporary threats to privacy and the importance to protect it. 

    In this case, the Aadhar card scheme was challenged. It contested that the collection of demographic and biometric data of the residents of the country for the use of various purposes is in conflict with the fundamental right to privacy as embodied under article 21 of the constitution of India. 

    The Supreme Court analysing the nature of the right to privacy held that the right to privacy is intrinsic to an inseparable from the human element in human beings and is at the core of human dignity. The court also held that privacy has both positive and negative content. While the negative content acts as an embargo on the state from committing an intrusion upon the life and personal liberty of a citizen and its positive content imposes a publication and responsibility on the state to take all necessary measures to protect the privacy of the individual. 

    Hence this gives the constitutional protection of privacy to inter-related protections i.e., 

    1. Against the world at large: Non-state actors, to be respected by all including the state, the right of choosing to share what personal information is to be released into the public space. 
    2. Against the state: as the necessary commitment of democratic values, limited Government, and limitation on the power of the state. 

    This judgment has made the right to privacy more than a mere common law right and developed it into a more robust and sacrosanct one. 

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    Justice D.Y. Chandrachud while discussing the informational privacy in today’s world concluded: 

    Informational privacy is a facet of the right to privacy. The Danger to privacy in an age of information can originate not only from the state but from non-state actors as well.” 

    We are in an information age. With the growth and development of technology, more information is now easily available. While the information explosion has manifold advantages it also has some disadvantages. Access to information which an individual wants to give needs the protection of privacy. The right to privacy is claimed by the state and Non-state actors. Recognition and enforcement of claims qua non-state actors may require legislative intervention by the state”. This judgment has extended the way for right to the non-state actors also. If the non-state actors violate this right then the state may be asked to provide remedy and effective redressal. 

    It is to be noted that this should not be interpreted that informational privacy is absolute. The judgment has carefully stated that. There may be legitimate intrusions of privacy concerning important interests. For example national security or tackling public health epidemics. But it does not impose any limits to these exceptions or narrow down their scope in any way. 

    The informational privacy which is also known as data privacy depends on the fact whether the subject matter contains personal information or non-personal information. 

    The idea of informational privacy evolves from the concept of privacy which is explained above. It is applicable to both personal information as well as group information. There is no legal definition of informational privacy as of yet. 

    There are regulations and Acts which protect and encompass this right.

    1. The Telegraph Act, 1885 – In this Act, unlawful access to information or message is a punishable offence except in public emergency or public safety. The informational privacy has been given protection in some form in this act. 
    2. The Information Technology Act, 2000 – This act provides safety against data privacy breaches by the state as well as third parties. 
    3. Personal Data Protection Bill, 2019 – The right to be forgotten has been included.  Aims to provide the protection of personal data of individuals. 

    IN RELATION WITH NON-STATE ACTORS

    The non-state actors are those organisations and individuals that are not affiliated with the government or directed by the government or funded through the government. These include corporations, financial institutions, and NGOs, paramilitary forces & armed resistance groups, media, private businesses, etc. 

    In today’s world state as well as non-state actors are actively involved in relation to the individual’s privacy. The non-state actors require this information for many purposes. It helps them in curating individual experience and providing them. As in today’s technological age, everything is digital and to access that, information is stored or required from the individual. The non-state actors store these data. There is no problem with that as far as it is not misused. The uncertainty regarding this has been growing day by day. Every now and then there is a breach of privacy by corporations which lead to leaks of their data. There is a greater need to safeguard this. In India, more than 40 percent of the population surf the internet. This is one aspect of it. Many times we are required to provide unnecessary personal data/information while filling forms for jobs or travel, insurance, etc. Non-state actors use this information to manipulate behavioural choice of an individual in the name of better services while this can be true to some extent but not wholly. Also, the privacy policy framed by these corporations and institutions is pretty one-sided, often favouring them. Hence the individuals concerning the use are at disadvantage. 

    There have been demands concerning an act ensuring the privacy and judgment especially by Justice D.Y. Chandrachud and Justice Kaul stress on the need for protection of informational privacy from the non-state actors. 

    Finally, the government introduced the Personal Data Protection Bill, 2019 on December 11, 2019. Some features of the bill are:

    1. Governs the personal data processing, i. By government, ii. By non-state actors, companies incorporated in India,  iii. Foreign companies dealing with personal data,
    2. Gives the right to the data principle (individual) to seek information on the processing of their personal data from the fiduciary,
    3. Correction of their data,
    4. Can have the data transferred to the other fiduciary,
    5. Restrict continuing disclosure of their personal data if the consent is withdrawn. 

    The right to privacy and its facets is an integral right that needs protection and recognition in the modern technological age. Much has been done and lots need to be done. As the world is advancing let’s hope these rights also evolve accordingly. 

    REFERENCES

    1. The Constitution of India, art.21. 
    2. Govind Singh v. State of Madhya Pradesh, AIR 1975 SC 1378; PUCL v. Union of India, AIR 1991 AC 207.
    3. Kharak Singh v. State of Uttar Pradesh, AIR 1964 1 SC 334.
    4. R. Rajagopal and Anr. v. State of Tamil Nadu, 1994 SCC (6) 632.
    5. K. S. Puttaswamy (Retd) v. Union of India, Writ petition no. 494/ 2012.

    BY- Deepak Prakash | Guru Gobind Singh Indraprastha University, New Delhi

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