Author: Sanskar Dubey, BBA.,LL.B(Hons) from CHRIST (Deemed to be) University, Delhi NCR.
INTRODUCTION
“In a world where everyone shows and tells everything, I value discretion and privacy”
In recent year there was a huge evolution and exposure of internet in India which also created a blast in Social media usage and made the social media industry one of the biggest industry. This is still growing at a faster rate, now more content creators are joining social media platform like YouTube, Facebook and Instagram are a great way for the brands for Advertising and reaching out to customer as a huge number of customer of different ages are available on Social media.
Personal Data in today’s time is the fuel for the IT sector and for various brands. Internet Industry has now generated various possibilities for the remote access of personalised information, virtual environment, social media etc. and their distribution. The main question is this data available on social media is protected in a way? This data is to be protected and anyone using this without the prior information of the person concerned is determine as a violated of right to privacy, which is not at all accepted under constitution of India.
THE STATUS QUO AS TO THE DATA PRIVACY LAWS IN INDIA
In India the condition of Data protection laws are not too strong, only a few statutes ranging from Information Technology Act to its corresponding Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules concern about data privacy.
In 2000, Indian legislature made effort to embrace and improve social media privacy issues and currently India’s most comprehensive legal provisions that speaks of privacy on the Internet is the Information Technology Act, 2000. Even though it cannot completely safeguard the privacy, but can be great initiative to a certain extent. Provisions that clearly protect user privacy include Section 43, 66, 66F and 67 of the Information Technology Act, 2000 and also the rules of the Act.
The laws made by the law makers which include government for legislation are mostly because of the data protection laws are failing to emphasize adequately in India and a common is not aware of these laws. This led them to a trap of online hackers and agencies which take all the personalised information and use them by selling them to different companies and corporation. Lack of awareness and understanding lead to misuse of their data.
RIGHT TO PRIVACY
Privacy has been well elaborated “as the condition or the state of being free from public attention to intrusion into or interference with one’s acts or decisions.” However, in India always a debatable topic arises when we talk about Right to privacy as a fundamental right under Constitution of India.
In the case of Kharak Singh vs state of U.P, it was held by the apex court that “privacy was not a guaranteed constitutional right” Also, In the case of M.P Sharma vs Satish Chandra that right to privacy is not a fundamental right under the constitution. It was however, held that Article 21 (right to life) was the repository of residuary personal rights and recognized the common law right to privacy.
In case of Maneka Gandhi v. UOI and R.C. Cooper case it was held that freedom and liberty is null and void without right to privacy and it is part of Right to life with dignity. Thus, these case laws highlighted an advanced degree of judicial activism acting as Marshall in a new era of expanding dimension of right to life and personal liberty.
In the landmark judgement of Justice K.S Puttaswami & another v. Union of India, the Honorable Supreme Court of India changed the landscape and outlook of people towards data privacy. The Judgment pronounced Right to Privacy a fundamental right under the ambit of Article 21 of the Indian Constitution.
This judgement, in particular, raised awareness and made the common public realise that their data is truly important and therefore it is purely worthy of protection. But despite such attempts by the Judiciary, no concrete law specifically for data privacy exists in India.
RIGHT TO PRIVACY ON SOCIAL MEDIA
Right to Privacy is one of the major issues in Social Media. Many other forms of social media like wikis social networking sites, blogs, micro-blogs, Twitter, WhatsApp, widgets, virtual worlds also exist. But social networking sites such as Facebook, Orkut and Myspace have become voguish in the time being.
The main purpose of these social networking sites is to establish a kinship in the virtual world. But common unaware public didn’t know that this boon was accompanied by an origin of Cyber-crime too. The concept of cybercrime come into existence during 1990’s and has climbed the ladder of success by reaching to a whole new level of crime and today is one of the most dangerous and uncontrollable crime. But it is us who have signed the deal with the devil and now our privacy has been compromised.
We as a general public doesn’t care about reading the terms and condition and click the dangerous button of Acceptance and this is how are consent has been taken by these big corporations and social media companies. This information is then misused by IP address, key words used in searches, websites visited which seem harmless, from information that we share on social media, to online transactions, to cookies collecting user browser history, to mobile registration- personal details about an individual is engendered by each use of internet.
They do these activities so that the more personal information they provide, and the more attractive they are to potential advertisers. As a result, cases of identity thefts, sexual predators, unintentional fame, cyber staking and defamation have started to gain focus. Scams such as koobface, who stole personal information of Facebook users and stole it wrongful people, have also been reported. Version 5 of HTML code is reported to provide advertising companies access to users online activities such as texts, photographs, emails and many more. People have also been reported of committing suicide5 after their humiliating videos had been uploaded on YouTube.
This lack of lucency of the social networking sites and the day to day crimes taking place in the cyberspace have forced us to critically think what we really want to share and how our information is being handled. Therefore, the privacy policies should be read very carefully before giving our consent. However, Facebook has helped by introducing options of blocking, reporting, protect etc. Twitter has the option of sharing information only with followers.
THE EXPLOITATION OF PERSONAL DATA BY SOCIAL MEDIA PLATFORMS IN THE GARB OF CONSENT
In one of the Judgment by the Apex court it was held by the Honorable Chief Justice of India, S. A. Bobde that
"Consent is essential for distribution of inherently personal data."
After certain important and serious action by the legislation and Indian Judiciary system they are been pressured that to continue their work, Social media Platform require the consent of the user
In pursuance to this, but then also while receiving consent they created a scenario like this for the users that they can’t use the platform without accepting all the conditions and giving their consent, which in the other way is unfair in the part of unaware common person. These exploitative terms and conditions are so surreptitiously camouflaged with the general terms that a layman agrees to all these conditions
These kind of contracts are qualified to be called as 'Standard form Contracts.'9A Standard form Contract is a contract between two parties, where the terms of the contract are set by one of the parties, and the other party has practically zero ability to negotiate more favourable terms and is consequently placed in a 'take it or leave it' position. While these sorts of contracts are not illegal per se, there exists a potential for unconscionability, unfair terms and inequality of bargaining powers between the parties.
In Life Insurance Corporation of India v. Consumer Education and Research Centre and others, the Hon'ble Supreme Court has observed that
"If a contract or a clause in a contract is found unreasonable or unfair or irrational one must look to the relative bargaining power of the contracting parties. In dotted line contracts there would be no occasion for a weaker party to bargain or to assume to have equal bargaining power. He has either to accept or leave the services or goods in terms of the dotted line contract. His option would be either to accept the unreasonable or unfair terms or forego the service forever. With a view to have the services of the goods, the party enters into a contract with unreasonable or unfair terms contained therein and he would be left with no option but to sign the contract."
CONCLUSION AND SUGGESTION
Violation of right to privacy in India legal system is increasing at an emerging rate. It is high time India should give its attention to prioritize privacy and recognize it as important factor. However, there are certain flaws which should be eradicated first. Like:-
The application developers should shift to a consumer-trust centric approach from data-centric approach. So that the privacy laws are able differentiates as to what they will protect and who they will regulate to. After the Apex courts important judgment in the WhatsApp case, it has become very important for the general public that the subscribers should be given an option as to whether they want to share their data or not. They should have the right to accept or to deny if they want.
The principle of “Datensparsamkeit” (data minimization) from the German privacy legislation, should be adopted. Indian users should be given the option to opt out of specific features instead of a singular ‘I Agree’ button (as introduced by EU Legislation).