AMITY UNIVERSITY AMITY LAW LAW SCHOOL, LUCKNOW CAMPUS CAMPUS
SUBJECT
CYBER LAW TOPIC
Right to priva! "#$%r C!&%r La' B(Co) L(L(B *H+ th -%)%-t%r
S"&)itt%$ to.
S"&)itt%$ &!.
Mr. Bhanu Pratap ALS
Malvika Bajpai
PRE/ACE This project added new insights to my personality. It infused in me
a
spirit of analysis, experimentation, curiosity and judgement. It also helped to inculcate the qualities of self-leading and of taking
self-
decisions. To the best of my ability and with my teacher’s guidance moral support, I hae been able to complete this privacy under Cyber Law”.
and
project on !Right to
ACKNOWLE0MENT Typically the education of a project requires the support of many people. In these words I would like to show my gratitude to my Bhanu Pratap who gae me the golden wonderful project on the topic Law ",
opportunity to
do
Mr. their
!Right to privacy under Cyber
which also helped me in
and I came to
teacher
know about so many
doing
a lot of
#esearch
new things. I’m really thankful to
them.
$alika %ajpai
INTRODCTION
WHAT IS PRIVACY IN INTERNET?
&ith the deelopment of the Internet into a 'global market place’, the world has seen a sudden emergence of new, speedy means of communication. (ot only has the internet emerged as a lucratie centre for the commercial transactions, it has also grown into an area where indiiduals from different corners of the world get to communicate freely and cost-effectiely. )ommunication, speech and expression undoubtedly constitute some of the most basic liberties of indiiduals and, to a large extent, can be considered inalienable. In the Indian context these rights are gien statutory recognition in part III of the )onstitution. *s a necessary corollary to the freedom to communicate and speak, is the fact that this must be allowed with as little state interference as possible, i.e., in the absence of state intrusion and interference into the content of the communication. This immediately raises the controersial issue of the 'right to priacy’. The right to priacy, it can be said, is considered a logical corollary to the liberty to speak and express oneself. *n important point to note is that the Indian constitution does not include the 'right to priacy’ as a fundamental right. Its existence, therefore, as a constitutionally guaranteed fundamental right is debatable. (eertheless, the judiciary has, on more than once occasion, opined that the right is implicit in the right under *rticle +, which proides that no person shall be depried of his life and personal liberty without a procedure established by law.
RIGHT TO PRIVACY UNDER CYBER LAW
There is a common misconception that the right to priacy is merely a weapon to ensure confidentiality in human affairs. )onfidentiality is, no doubt, one element in the panorama of rights coered by the right to priacy, but it is just that one element. It must not be forgotten that the right to confidentiality only arises after information regarding human transactions or affairs hae reached third parties. It has to be recognised that the right to priacy extends oer the entire gamut of collection, retention, use and disclosure of information. It stems out the basic human desire for a secure identity of one’s own and, to that extent, cannot be denied. In this context, it may be said that priacy inoles the right to control one’s personal information and the ability to determine if and how that information should be obtained and used. It may be necessary to examine the guidelines along which the extent of the right to priacy may be determined. The guidelines, which may be generally taken as accepted, hae been framed by a uropean organiation, named the /rganisation for conomic )o-operation and 0eelopment, in 123.
The principles are as follows4 •
5irstly, collection of personal data should be done with the
•
consent of the person and lawfully. 6econdly, the data collected should be pertinent to the subject under inestigation. Therefore, for example, a man’s medical problems ought not to be inestigated while data on
•
his tax returns is being collected. Thirdly, the purpose as to collection ought to be clearly
•
specified. 5ourthly, such data should not be further used except without express consent of the subject and under the
•
sanction of the law. 5ifthly, there ought to be adequate security safeguards so as to preent leakage of data into the hands of unauthorised
•
persons or the destruction of classified material. 6ixthly, there ought to be a higher degree of accountability detailing the persons who are in charge of the process of collection and this is linked with the next point, which deals with the indiidual’s participation in the process of data
•
collection. 6eenthly, the indiidual should hae the right to confirm whether there is any data on him and whether such data is pertinent or releant to the purpose for which it is collected.
•
7e should also hae the right to access any data dealing with him at any time as may be conenient to him and such data should be made completely aailable to him in a reasonable manner and if the data collected is not entirely accurate he
should hae the opportunity to point out the facilities that may exist. These then may be said to be the broad principles goerning the existence of the slightly ambiguous right to confidentiality. The right to priacy has been held by the 7on’ble 6upreme )ourt as an integral part of the fundamental right to life under *rticle + of The )onstitution of India. 8riacy concerns exist whereer uniquely identifiable data relating to a person or persons are collected and stored, in digital form or otherwise. In some cases these concerns refer to how data is collected, stored, and associated. In other cases the issue is who is gien access to information. /ther issues include whether an indiidual has any ownership rights to data about them, and9or the right to iew, erify,
and
challenge
that
information
arious types of personal information often come under priacy concerns. 5or arious reasons, indiiduals may not wish for personal information such as their religion, sexual orientation, political affiliations, or personal actiities to be reealed.+
This may be to aoid discrimination, personal embarrassment, or damage to one’s professional reputation. 1 R. Rajagopal v. State of T.N. [(1994) 6 SCC 632] 2 http://astealegal.!o"/#ght$of$p#va!%$#&$the$l#ght$of$!%'e$la *3/*2/2*14 *6:32 p."
6pamming, sending unsolicited mails and websites collecting information about indiidual surfers and selling it off for monetary considerations lead to iolation of their priacy in cyberspace. Telephone : Tapping is a serious inasion of an indiidual’s priacy. &ith the growth of highly sophisticated communication technology, the right to a telephone conersation, in the priacy of one’s home or office without interference, is increasingly susceptible to abuse.; There is no comprehensie legislation on priacy in our country. *s such it has been left to the
#ules, +3 under the Information Technology *ct, +333. India now has a priacy law, brought into force with immediate effect with wide ramifications on the way companies will do business in India. The firm is competent to deal with cases inoling inasion of priacy een in the absence of a suitable law goerning this issue.
The firm puts all its experience into use in handling cases arising out of4 3 http://astealegal.!o"/#ght$of$p#va!%$#&$the$l#ght$of$!%'e$la *+/*2/2*14 12:4, p."
Insecure electronic transmissions 0ata trails and logs of email messages /nline transactions Tracking of web pages isited 8hone tapping 6pamming ?nauthoried *ccess Identity theft
In this information technology era a special attention must be paid to the priacy rights in India in the information age. &e beliee that data protection requirements are essential part of ciil liberties protection in cyberspace. &ith the growing use of information
and
communication
technology
=I)T>,
data
protection requirement has become ery important. It would not be wrong to assume priacy and data protection rights as integral part of human rights protection in cyberspace.@ 7oweer, despite the importance of these fields, till now we lack legal frameworks in the fields of data security, data protection and priacy protection. &e urgently need to formulate data protection law in India and priacy laws in India.
It is safe to assume that the priacy of indiiduals is certainly a concern of the law. Taking this as a gien, we can go on to examine what the legal and policy response is and what it ought to be. 5undamentally, there are arious approaches that may be taken4 4 http://pe%4la.og/!e!s-#/top#!p#va!%$#ghts$a&-$las$#&$#&-#a *+/*2/2*14 *1:** p."
• • •
Aegislation 6elf-#egulation #eliance on Trustworthy Third 8arties who will set and enforce standards
$ost legal systems will be a mixture of these approaches, something that can easily be seen in the ?6.
THE U.S POSITION
The 5ederal Trade )ommission =5T)> has made a key role in the deelopment of the response of the ?6 5ederal Aegal system to the issue of information and data. In 112, it brought out a report called 8riacy /nline, which was a report to the )ongress which was the result of a three year priacy initiatie. The report recognised of four core principles4 !. Notice Princip"e# )onsumers must be gien notice of an entities information
practices.
$. Choice Princip"e# They must hae a choice with respect to use and
discrimination of information. %. &cce'' Princip"e# 0ata proider should hae access to current data. (. )ecurity Princip"e# )onsumers must hae sufficient security from the data
collector.
0*T* 8#/T)TI/( I( ?B The 0ata 8rotection *ct, 112 came into force recently, on the st of $arch, +333. It lays down rules for processing personal information and applies to paper records as well as those held on computers. The #ules proide that anyone processing personal data must comply with the eight enforceable principles of good practice. That data must be4 • • • • • • • •
5airly C lawfully processed 8rocessed for limited purposes *dequate, releant C not excessie *ccurate (ot kept longer than necessary 8rocessed in accordance with the data subject’s rights 6ecure (ot transferred to countries without adequate protection
8#ID*)E ?(0# I(0I*( IT *)T, +333 Fsection G+H This proision deals only with information collected by a person who secures the information in pursuance of powers that he9she exercises under the act. &hen it comes to protection, T#?6T is an independent (8/ and it was the first online priacy 6*A programme. It proides a monitoring and oersight programme and een a complaint procedure. It includes third party monitoring and periodic reiews of licenses to ensure compliens , The o&l#&e S0 poga""e e#e these l#!e&ses to a'#-e '% !ose of o&l#&e #&fo"at#o& pa!t#!es a&- to s'"#t to va#os t%pes of !o"pla#&ts5 #& o-e to -#spla% a S0 o& the# e's#te.
with programme requirement. T#?6T examines and monitors changes in licenses priacy statement and tracks unique identifiers in their database to determine whether consumers requests to remoe themseles from the database. Aicensee must respond to all the reasonable enquiries within fie days. T#?6T also plays a part in resoling consumer complaints. It also proides for public reporting of complains and inappropriate circumstances it will refer the cases to the commission. In case of breach, imprisonment for a term is sentenced which may extend to +yrs and there is also a proision of fine up to #s. 33,333.
CONCLUSION True, the right to priacy is recognised as inherent in the right to life with dignity in *rticle + and the right to freedom of speech and expression in *rticle 1. (either of these can and should e allowed to stand as an impediment in curbing actiities prejudicial to national security and interests. (ot surprisingly, both these rights contain express conditions when they may be depried.
*t the same time, he balance cannot be allowed to tilt completely to one side, so as to negate the basic liberties, een when not absolutely essential. The only way out is a compromise between the two extremes. The 6upreme )ourt of India must expand priacy rights in India as that is the need of hour. 7oweer, in the ultimate analysis, it is the constitutional duty of Indian 8arliament to do the needful in this direction. Indian 8arliament must enact sound and effectie priacy and data protection laws for India as soon as possible.
BIBLIO*R&P+, •
Aaw #elating to )omputers, Internet C -commerce by (andan
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Bamath #eferred to (otes gien teacher [email protected]acy-rights-and-laws-in-
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india http499cyberlawsinindia.blogspot.in9+393@9draft-right-to-priacy-
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bill-+3-of.html http499astrealegal.com9right-of-priacy-in-the-light-of-cyber-law
