Introduction

Media has entered almost every sphere of our lives. Digital, social, visual — regardless of the type, but in today’s times, it’s impossible to imagine a life without media. The accessibility of data at almost no cost and therefore the click of a button may be a convenience that seems inseparable from our lives.

This is where the difficulty of the right to privacy slithers in. A fundamental right under the Constitution of India, the right to privacy is guaranteed to every citizen under Article - 21, as interpreted by the Supreme Court. The issue at hand is the clashing opinions of both advocates of the digital age and therefore the people claiming a breach of their privacy, eulogized as the right to freedom of speech and expression.

Scope and Objective

Media features a plethora of positives. But none of them come without the negatives that always sneak in from behind. The convenience of access to information comes with a dire threat of addiction to the web and social media especially. The negative impact of media can’t be neglected. Though it’s a necessity in the times we live in, thanks to the fast-developing world, yet the disadvantages are endless Like health issues, addiction, pornography, trolling, and to feature to the miserable tally, now the breach of the right to privacy.

The objective of this paper is to bring to the spotlight how the constitutional right to privacy has been impacted — both positively and negatively — by the access to the web and media to individuals of all ages. We would also be looking at some leading judgments that specify how media has been somewhat of evil when it comes to the privacy of people.

The Dystopian Times

In the current times, each piece of data is recorded and stored digitally. Gone are the times when jacketed and non-jacketed bunches of papers were the means of keeping our data. As convenient as it sounds, we have unknowingly opened ourselves to surveillance and profiling — sometimes legally. We presume that the authorities would keep the info secure. But in reality, they are the ones who are behaving suspiciously by adding the “Terms and Conditions” within the smallest of texts that we rarely read them.

Data is not just stolen behind our backs. Technological advances have created many applications where we offer our data willingly. Amazon knows our shopping patterns and Dominos is aware of our location. Above all, Google just about knows everything about us. From ordering a meal on Zomato to booking a hotel on bookings.com, from booking a ride on Uber to liking a post on Facebook, we divulge our personal details like location, address, phone numbers, etc. without even thinking twice. We hand over our details — children’s information, healthcare, social security, addresses, license numbers, etc. — only to get robbed, cheated, and watched over, all in the name of government orders and unnecessary legal justifications. The forfeiture of our intimate details is often followed by the acceptance of information in the fine print on every form we sign and every button we press. A data-driven society with ubiquitous stalking has enabled a few individuals to transgress a destitute mass of digital media users. Obsessive paranoia of the government and other authorities has become a reality and we tread on a tight rope to guard our privacy.

Role of Digital Media

Gone are the days when we had to stand in long queues in the bank or at the bill payment counter for electricity. Everything is available right where you are just with a click of a button. The development of new technology has improved our ability to communicate and share information with others, thus enhancing freedom of speech and expression and democratic participation of every individual. However, these technological advancements have also given birth to electronic surveillance and communication interception.

In the expert seminar on “The Right to Privacy in the Digital Age” held in Geneva on 24th and 25th February 2014, the United Nations High Commissioner for Human Rights cautioned in her opening remarks that such practices ‘threaten individual rights – including the right to privacy and freedom of expression and association – and inhibits the free functioning of a vibrant civil society.’[1]

Furthermore, arbitrary surveillance on communications poses a dire threat to anonymity of communications and privacy and in turn human rights defenders, whistleblowers, and investigative journalism – all of which are vital parts of a free and democratic society.

From a teenager to even our grandparents, everyone has access to digital media one way or the other. The easy availability and accessibility to information across the internet have become more of a curse than a boon. Social media allows us to stay connected with our loved ones but also exposes us to the threat of data collection and privacy breaches.

The Right to Privacy

Article 17 of the International Covenant on Civil and Political Rights (ICCPR)[2] explains that no person shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home, or correspondence, nor to unlawful attacks on his honor and reputation, and that everyone has the right to the protection of the law against such interference or attacks.

It was observed that the right to privacy is not just a liberty to be left alone, but rather its essence lies in an individual’s autonomous development in the community, and the choice to interact with other people in order to fulfill his or her personal development. Also, the right to privacy is interlinked with the right to freedom of speech and expression — the two are mutually dependent upon one another and both facilitate the capacity of an individual to participate in democratic and free societies. The right to privacy is a liberty right, protecting an individual’s choice of what to share, how to share it, and with whom.

Indian jurisprudence has also taken considerable steps towards securing a right to privacy for its citizens. Article - 21 of the Indian Constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The Supreme Court ruled on 24 August 2017 that the right to privacy is a fundamental right guaranteed by Part III of the Indian Constitution in Justice K.S. Puttaswamy v. Union of India[3]. New regulations will now be tested on the same parameters on which the laws that violate personal freedom are tested under Article - 21 of the Indian Constitution. The right to privacy is now unambiguously accessible — its contours and boundaries are the issues that remain exceptional. The decision would have far-reaching consequences but it is not the first one with respect to the right to privacy.

The Supreme Court first considered whether the right to privacy is a basic right or not in the case of M.P. Sharma and Ors. v Satish Chandra, District Magistrate, Delhi and Ors.[4], where the warrant granted for search and seizure was questioned under Sections - 94 and 96(1) of the Criminal Procedure Code, 1973. The Supreme Court ruled that the search and seizure authority was not contrary to any constitutional provision. The Court also refused to recognize the right to privacy as a basic right guaranteed by the Indian Constitution.

Later in the case of Kharak Singh v State of Uttar Pradesh and Ors.[5], the Court considered whether monitoring an accused’s home visits at night would be an abuse of the right guaranteed under Article 21 of the Constitution of India, thus asking the question of whether right to privacy is a part of Article 21 of the Constitution. The Supreme Court held that, in reality, such monitoring was against Article 21. Moreover, the majority judgment said that Article 21 did not expressly provide for a provision of privacy, and therefore the right to privacy could not be interpreted as a fundamental right.

Thereafter, in the case of Govind v. State of M.P.[6], the Police’s right to housekeeping was questioned to be incompatible with the right to privacy enshrined in Article 21 of the Indian Constitution. The Supreme Court held that the laws of the police did not comply with the principle of private liberty and also acknowledged the right to privacy as a the basic right guaranteed by the Indian Constitution but supported the development of the right to privacy on a case-by-case basis and denied it as an absolute right.

This issue was raised again before the Supreme Court in Justice K.S. Puttaswamy (Retd.) v Union of India[7]. In this case, the Aadhaar Card Scheme was questioned on the ground that the collection and compilation of population and biometric information of citizens of the nation to be used for different reasons infringed the basic right to privacy enshrined in Article 21 of the Indian Constitution. Considering the ambiguity around the constitutional status of the right to privacy from previous judicial precedents, the Court referred the matter to a constitutional panel with nine judges.

The Supreme Court then ruled that the right to privacy is inherent to the human element and the core of human dignity and is inseparable from it. Accordingly, privacy was kept to have both beneficial and negative content. The adverse content functions as an embargo on the State by intruding into a citizen’s life and private freedom, and its beneficial content imposes a duty on the State to take all necessary steps to safeguard the privacy of an individual.

Therefore, the constitutional protection of privacy may give rise to two inter-related forms of protection:-

 

o   Against the world at large, to be respected by all including the State — the right to choose what personal information is to be released into the public space.

 

o   Against the State — as a necessary concomitant of democratic values, limited government, and limitation on the power of State.

 

As a consequence of this judgment, the right to privacy has become more than just common law and more solid and sacrosanct than any statutory right. Thus, an invasion of privacy is now questioned in the context of Articles - 14, 19, and 21 — the golden triangle of the Constitution — on the grounds of a law stipulating a fair, just, and sensible procedure.

The Violations of the Right to Privacy

The breach of privacy by the authorities is quite common in modern times. Our governments love to peek behind the curtains of every individual in the name of looking for terrorists, security threats, and scammers. Here are some of the common violations to the right to privacy:-

1.     Search and Seizure of Digital Property

Internet censorship and digital media control are techniques used by both the extremist groups — the Government and militant organizations — to alter public belief and misguide them. From the developed to the third-world countries, people with a voice is silenced and harassed just for having an opinion.[8]  

Just like in the recent case of Munawar v. State of Madhya Pradesh[9], where a stand-up comedian was put into jail with no bail for a month just for cracking jokes about Hindu mythology and the current Home Minister, Amit Shah. During protests and rebellions, the governments often cut off the internet services to prevent volatile posts and other statements from influencing others. Such protests are also an opportunity for the government to seize the data of individuals, thus invading their privacy. While laws are in place in most countries to guard the search and seizure of physical property, such laws often do not work for digital property. As a result, even without a search warrant, it becomes permissible to force individuals to forfeit access to their social media accounts for gaining services like a visa to visit another nation.

2.     Online Profiling of Marginalized Groups

It is not a new practice to torture people of a specific religion, caste, ethnicity, or gender. The Chicago Police Department implemented a unique "Strategic Subject List", which predicts potential perpetrators and victims of gun violence.[10] Such profiling allows forces like the police to dive into the digital property of suspicious individuals. But there is no stopping on whom they find suspicious. The disadvantaged groups are pretty easy rubber targets of such investigations.

3.     Biometric Concerns

Biometric data has become a common form of cloud storage for governments, corporates, banks, and other organizations that wish to keep the data of their citizens and employees in one place. Such digital storage is an inventory of information for both the government and the criminals. The discrimination of Nazi Germany reminds us how perilous collecting registries that track minorities can be for all the nations. The Brazilian Federal Police in 2017 making a deal with the Electoral Court for sharing its biometric database without announcing the practice previously is an example of such abuse.[11]

4.     Censorship

In every country, censorship exists to a certain extent. Even in India, the most commonly known form of censorship is the cinema. In Israel a bill was introduced recently that would provide the court with automatic access to remove content from online platforms.[12] The Israel Democracy Institute (IDI) fought the law, as it would create disproportionate censorship in an inappropriate legal process that has no precedent in any other country.

5.     Online Surveillance

Social media platforms, hotel booking sites, food delivery applications, etc. all fall under this category. Enabling billions of users across the globe to connect and interact, such sites often collect data without you knowing it. The unclear consent via third-party applications makes your privacy on the web in general questionable. Not only social media sites, but online agencies and health insurance companies also peep through the keyhole while you are online. The information is then sold to advertisers and insurers of all kinds.

Try making a profile on Naukri.com. You will be surprised to receive calls from places where you didn’t even apply. That is how the selling of information works. The case of Karmanya Singh Sareen v. Union of India[13] revolves around the protection of personal data and the right of privacy guaranteed under the Constitution of India, which is contended to be exploited by WhatsApp under the New Privacy Policy of 2016. The High Court of Delhi held that the contention of the Petitioners that the proposed change in the Privacy Policy of WhatsApp amounts to infringement of the Right to Privacy guaranteed under Article 21 of the Constitution of India cannot be a valid ground to grant the reliefs as prayed for since the legal position regarding the existence of the right to privacy as a fundamental right is yet to be decided. It is quite likely that after the Supreme Court judgment in Justice K.S. Puttaswamy (Retd.) v Union of India[14], this judgment might get overturned. As of now, it is still under processing.

Laws Related to Privacy in India

In India, the laws are not sufficient to protect the privacy of individuals. The Legislature, as well as the Judiciary, have failed in framing the necessary laws in this area. However, there still are a few legislations that aim to protect our privacy.

The Information and Technology Act, 2000 was established with the idea to properly regulate the practices on digital platforms. However, the Act has comprehended the concept of privacy in a primitive sense. Section – 79 of the Act states that if a person uploads or posts anything derogatory for another person, then the medium on which it is posted, that is Twitter, Facebook, etc., is not to be held liable for the acts of such person.

The concept evolved over time with the case of Shreya Singhal v. Union of India[15], with the Court deciding that it is Facebook’s duty to remove any material posted by them which is objectionable. This has to be done by Facebook, applying its discretion, after complaints regarding the same are received. 

Ever since the right to privacy has been recognized as a fundamental right under Article – 21 of the Constitution which is often read with Article – 14 and 19, the digital space has become a bit more secure. However, India is far away from achieving specific stringent laws to protect individual privacy.

Conclusion

The right to privacy is a fundamental right. It is a right that protects the inner sphere of the individual from the interference of both the State and non-State actors and allows the individuals to make autonomous life choices. Neither the right to privacy nor the freedom of the internet can be taken away from the people.

It is rightly expressed that technology has made it possible to enter a citizen’s house without knocking at the person’s door and this is equally possible both by the State and non-State actors. It is a person’s choice as to who he or she wants to let inside the house, how he or she lives, and in what kind of a relationship. Checks and balances are necessary in order to establish a safe and organic relationship between the individuals and the state. Only things like National security must become the reason for someone else to enter your space arbitrarily. The advancement in technology demands advancement in the laws and better implementation of them too.


[1] The Right to Privacy in the Digital Age: Meeting Report, Geneva, https://www.geneva-academy.ch/joomlatools-files/docman-files/ReportThe%20Right%20to%20Privacy%20in%20the%20Digital%20Age.pdf (last visited 2nd June 2021)

[2] Article — 17 of International Covenant on Civil and Political Rights, 1976

[3] Writ Petition (Civil) No 494 of 2012; (2017) 10 SCC 1; AIR 2017 SC 4161

[4] 1954 AIR 300, 1954 SCR 1077

[5] 1963 AIR 1295, 1964 SCR (1) 332

[6] 1975 AIR 1378, 1975 SCR (3) 946

[7] Writ Petition (Civil) No 494 of 2012; (2017) 10 SCC 1; AIR 2017 SC 4161

[8] Flock, Elizabeth, "What Internet censorship looks like around the world". Washington Post. April 5, 2012 — https://www.washingtonpost.com/blogs/blogpost/post/internet-censorship-what-does-it-look-like-around-the-world/2012/01/18/gIQAdvMq8P_blog.html?utm_term=.d0ebce509827 (last visited 2nd June 2021)

[9] Writ Petition(s)(Criminal) No(s). 62/2021 | 05-02-2021 MUNAWAR v. THE STATE OF MADHYA PRADESH & ORS.

[10] Asher, Jeff and Arthur, Rob. “Inside the Algorithm That Tries to Predict Gun Violence in Chicago”. The New York Times. June 13, 2017 - Inside the Algorithm That Tries to Predict Gun Violence in Chicago - The New York Times (nytimes.com)

[11] Tribunal Superior Eleitoral. “Parceria entre TSE e PF visa maior eficiência da gestão pública”. Setor de Administração Federal Sul (SAFS) - Parceria entre TSE e PF visa maior eficiência da gestão pública — Tribunal Superior Eleitoral

[12] A bill to remove content whose publication constitutes a crime on the internet, 2016 - הצעת חוק (knesset.gov.il)

[13] 233 (2016) DLT 436

[14] Writ Petition (Civil) No 494 of 2012; (2017) 10 SCC 1; AIR 2017 SC 4161

[15] (2013) 12 S.C.C. 73

About the Author: This Legal Article is prepared by Ms. Chaitanya, a 4th-year law student at the Vivekanand Institute of Professional Studies, GGSIP University, and is an intern at MyLawman. She can be reached at chaitanya.india1702@gmail.com

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