What exactly is the definition of confidentiality, privacy and personal data by Indian laws?
Indian law does not determine what privacy is, but only the situations where privacy will be afforded legal protection. Therefore, it must also be shown that the photograph was disclosed in circumstances importing an obligation of confidence. The meaning of the word ‘confidentiality’ and ‘privacy’ are somewhat synonymous. Confidentiality invokes the equitable principle of confidence. ere ‘privacy’ would be understood as the claim of ‘aggrieved’ celebrities, who have dete determ rmin ined ed for for them themsel selve vess when when,, how and to what what e!te e!tent nt thei theirr nude nude pict pictur ures es are are to be communicated to others. "n argument that may be used by the ‘victims’ is that the photographs have been acquired by some form of hacking #or unlawful access to a computer resource$, therefore, any viewer of such photographs may be assumed to have known the photograph was confidential. Information Technology #%easonable &ecurity 'ractices and 'rocedures and &ensitive 'ersonal (ata or Information$ %ules, )*++ provides protection to personal information. 'rior to these %ules, in India remedies for invasions of privacy e!isted under tort law and the &upreme Court of India accorded limited constitutional recognition to the right to privacy #under "rticle )+$. These %ules provide the only codified provisions protecting the privacy of individuals and their personal information. %ule of the %ules provides an aggregated definition of sensitive personal data as follows&ensitive personal data or information of a person means such personal information which consists of information relating to #i$ password/ #ii$ financial information such as bank account or credit card or debit card or other payment instrument details/ #iii$ physical, physiological and mental health condition/ #iv$ se!ual orientation/ #v$ medical records and history/ #vi$ 0iometric information/ #vii$ any detail relating to the above clauses as provided to body corporate for providing service/ and
#viii$ any of the information received under above clauses by body corporate for processing, stored or processed under lawful contract or otherwise'rovided that, any information that is freely available or accessible in public domain or furnished under the %ight to Information "ct, )**1 or any other law for the time being in force shall not be regarded as sensitive personal data or information for the purposes o f these rules. To apply the above %ules, first we would need to establish whether the nude pictures formed ‘sensitive personal data’. %ule 2 3 %easonable &ecurity 'ractices - %ule 2#+$ of the %ules prescribes reasonable security practices and procedures necessary for protecting personal information and sensitive personal data, rule 2#)$ asserts that the international standard I&45I6C )7**+ fulfils the protection standards required by rule 2#+$- The international &tandard I&5I&45I6C )7**+ on 8Information Technology 3 &ecurity Techniques 3 Information &ecurity 9anagement &ystem 3 %equirements: is one such standard referred to in sub3rule &ection ;7 and ;7" of the IT act prohibit the publication and distribution of obscene and se!ually e!plicit material respectively, while ;70 forbids all publication, distribution, facilitation and consumption in any manner of child pornography. &ection ;;6 of the same act deal with punishment for violation of privacy, and e!plicitly forbids capturing, publishing or transmitting ‘the image of a private area of any person without his or her consent’ In cases where the victim’s nude or obscene photos are uploaded without consent, the accused is booked under different sections of the IT act and the Indian 'enal Code#I'C$. "lso the sub
What happens if a common man’s pictures are leaked?
=ell, it is obvious that, unlike celebrities, the average individual would not have the resources to take action in such a situation. =e must, therefore, rely on the government to protect our rights. The >overnment has provided all citi?ens the %ight to life and personal liberty under "rticle )+ of the Constitution and the same may be invoked to cast a duty on the >overnment. There are criminal offences under The Information Technology "ct, )***, such as unlawful access to computer resources #that is without permission$, disclosure of computer record and altering computer data without permission, which may apply. The penalties for offences are listed later. owever, to ascertain which provisions under the IT "ct would apply first we would need to establish how the hackers gained access to the photographs. =hile the IT "ct does have e!tra3territoriality, I doubt there could be an easy identification of
+. knowingly or intentionally concealing, ). knowingly or intentionally destroying, . knowingly or intentionally altering, A. knowingly or intentionally causing others to conceal, 1. knowingly or intentionally causing another to destroy, ;. knowingly or intentionally causing another to alter.
IT Act, Section , hackin" computer system# #+$ =hoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it in
"gain, before applying this provision to the circumstances, one would need to check the essential ingredients of the section3 +. =hoever with intention or knowledge. ). Causing wrongful loss or damage to the public or any person. . (estroying or altering any information residing in a computer resource. A. 4r diminishes its value or utility or. 1. "ffects it in
The first case here was The &tate of Tamil Badu v5s &uhas atti. This was a case about posting obscene, defamatory and annoying message about a divorcee woman on a Dahoo message group. The accused was found guilty of offences under &ection A;E, 1*E I'C and ;7 of IT "ct )*** and convicted to undergo %I for ) years under A;E I'C and to pay fine of %s.1**53and for the offence u5s 1*E I'C sentenced to undergo + year simple imprisonment and to pay fine of %s.1**53 and for the offence u5s ;7 of IT "ct )*** to undergo %I for ) years and to pay fine of %s.A***53 "ll sentences to run concurrently. The accused has since paid the fine and is lodged at Central 'rison, Chennai. This is considered the first case convicted under IT "ct &ection ;7. In Avnish %a&a& #C64 of ba??ee.com$ case, there were accused, including the service provider #"vnish 0a
place$ of the Indian 'enal Code #I'C$, and &ection ;7 #publishing information which is obscene in electronic form$ of the IT "ct. In addition, the schoolboy faces a charge under &ection )*+ of the I'C #destruction of evidence$, for there is apprehension that he had destroyed the mobile phone that he used in the episode. These offences invite a penalty of imprisonment ranging from ) to 1 years, in the case of a first time conviction, and5or fines. Section $', penalty for breach of confidentiality and privacy# "ny person who, in pursuance of any of the powers conferred under the IT "ct, rules or regulation made there under, has secured assess to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such material to any other person may be punished with imprisonment for a term which may e!tend to ) years, or with fine which may e!tend to %s. + @akh, or with both.
Sajai Singh is a Bangalore-based partner with law firm J.Sagar Associate. His sectors of expertise include media, entertainment, retail and franchising, knowledge based industries !"#!"$S#%ife Sciences& and telecom.
