INFROMATIONAL PRIVACY- AN INVATION OF MORAL AUTONOMY AND HUMAN DIGNITY
Author: Simran Sharma, IV year of B.B.A.,LL.B(Hons.) From law College Dehradun.
This article gives account of the flow of research on informational privacy, moral autonomy and human dignity and also talks about the right to privacy which is intrinsic to every individual as it not only protects the private sphere of an individual but also provide sense of individualism. Privacy has also moral value because it shields us in 3 context by providing scrutiny, prejudice and pressure to conform.
Informational privacy is an emerging phenomenon. This article also study about the right to life and liberty guaranteed under Article 21 of Indian constitution which protects an individual against state and non state which can accommodate informational privacy.
“If the right to privacy means anything, it’s the right of an individual to be free from unwarranted intrusion of government.” – William J. Brennan
Privacy is the personal domain of an individual which is without any intervention or free from outside interference. This personal domain can be of online and offline that is, a private domain on a cyber platform and a private domain on spatial privacy within demographic zone. The right to enjoy one’s private space is related to an individuality or individualism which further relates to dignity or personal liberty.
Informational Privacy is an individual’s claim to control the terms under which personal information that is information identifiable to the individual is acquired, disclosed and used. It can also be understood as proposed by Westin, “the right to control the way others use the information concerning us becomes part and parcel of right to privacy.”
CONCEPT OF PRIVACY RELATED TO MORAL AUTONOMY AND HUMAN DIGNITY
Right to privacy is intrinsic to every individual as it not only protects the private sphere of an individual but provide the sense of individualism that is an individual is an independent unit and hence they can avail right to privacy. As the life to an individual is natural similarly the right to privacy for an individual is naturally attained by oneself. The right to privacy as a judicial right is interpreted first time by the judiciary in the case of M.P. Sharma v. Satish Chandra, where the court observed that, “if the Constituent Assembly thought it fit to not recognize the right to privacy as a fundamental right as analogous to the 4th Amendment to US Constitution, then we have no justification to import it.” Later on, SC in the case of Kharak Singh v. State of Uttar Pradesh, held that the right to privacy with respect to homes, comes within the ambit of article 21 of the constitution, but with respect to public places there exists no such right. Privacy primarily concerns itself with individuals. And therefore, privacy relates to and overlaps with the concept of liberty.
Therefore it is rightly to said that right to privacy is covered under article 21, 19 as well as 25, as observed in the case of Gobind v. State of MP. Also, in Ram Jethmalani v. Union Of India, the court held that Right to privacy is an integral part of right to life which is a cherished constitutional value and it is important for human beings to be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner. In the case of Justice K.S. Puttaswamy (Retd) v. Union of India, the court held that right to privacy is protected under article 21 of the constitution and the right to privacy is a fundamental right.
PRIVACY AND MORAL AUTONOMY
Privacy takes moral value because it shields us in all three contexts by providing certain freedom and independence — freedom from scrutiny, prejudice, pressure to conform, exploitation, and the judgment of others. Moral Autonomy is nothing but capacity to give oneself the moral authority or a law which is morally bound to follow.
The right to privacy comes from the concept of individualism that is the individuality of one being; here it is the moral attribute of every individual to encompass oneself with the moral laws of not interfering into the private sphere of others as well as maintain its own private sphere to enjoy the right to privacy.
PRIVACY AND HUMAN DIGNITY
Privacy is a fundamental human right that has been provided for in numerous international treaties and conventions. It is an important pre-requisite for protection of human dignity and is an essential pillar of a democratic nation. It supports one’s own rights along with others’ rights as well. Privacy is vital to a life with dignity. Human dignity, in result, provides the basis for the right to privacy. There could be no stronger foundation conceivable, because personal life, liberty, and all the freedoms guaranteed under Article 19, combine to form a comprehensive code that, in turn, is recognized as a part of the basic structure of the Constitution. As Justice Chandrachud observes, “to live is to live with dignity”, and “dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual, the dignity of existence.”
INFORMATIONAL PRIVACY; ISSUES AND CONCERNS
Informational privacy is an emerging phenomenon. With the advent of technology and internet, new dimensions are being added to the traditional notion of right to privacy like informational privacy or data privacy. Technology allows an individual to generate both personal and non-personal information about him in the cyberspace knowingly or unknowingly. The informational privacy (also referred as data privacy) does have the essence of privacy law which lies in the claim of an individual to control disclosures, use, or access to information pertaining to that person.
Apart from the primary concern about individuals having no control over information about them and their information is used for trade related purposes there are some other additional concerns which are discussed below:
No control over information. The RTI query on UIDAI revealed that the terms of contract of UIDAI with US-Based biometric service providers like L-1 Identity Solutions Operating Company Private Ltd, Morpho and Accenture Services Private Ltd used the aadhar data. The burning question here is ‘Do individuals have control over the manner in which information pertaining to them is accessed and processed by others?
Absence of the right to be deleted. According to Justice Kaul, “the right to be forgotten refers to the ability of individuals to limit, de-link, delete, or correct the disclosure of personal information on the internet that is misleading, embarrassing, irrelevant, or anachronistic”. The right to forgotten is abrogated.
Lack of Cross border protection. So far the protection of right to privacy within domestic jurisdiction against state and non-state actors is thoroughly discussed and regulated by the Indian judiciary and law making bodies. But cross border protection of informational privacy is still unregulated.
Absence of informed consent. The absolute nature of acceptance or denial and the indispensable nature of most digital services raises pertinent challenges to the traditional understanding of “informed consent”, in so far as whether people who are unaware of usage and repercussions can give consent to use of the same.
LEGAL INTROSPECTION IN INDIA
The Aadhaar Act, 2016
After the execution of Aadhaar Act, one of the major uncertainties is whether collecting and compiling the demographic and biometric data of the residents of the country to be used for various purposes is in breach of the fundamental right to privacy? The response to this question is conferred below:
The Government of India through The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 has recently mandated the use of the biometric database known as aadhaar card to deliver targeted subsidies, benefits and services. The biometric information of every individual is unique and this uniqueness makes the individual “only one in the world”. Thus the biometric information is extremely sensitive and personal in nature and attract right to privacy which needs to be protected.
The Information Technology Act, 2000
To counter the challenge of data privacy, another significant reference can be taken from the Information Technology Act, 2000. An amendment was made in the IT Act in 2008 by adding section 43A and section 72A for dealing with sensitive personal data. Section 43A is creates a private right of action in civil law by which any person can sue a body corporate for negligent handling of its sensitive personal data or information.
Although Article 21 provides for right to life and personal liberty but the right is not absolute but subject to ‘procedure established by law’, therefore legislature by statutes or laws can abrogate the Right to privacy for benefit of the society at large.
This IT Act 2000 was amended by IT rules, 2021 which provides various sanctions and authorities for spreading fake news or prohibited content. The IT Rules 2021 provides for Rule 4(2) covers the "identification of the first originator of the information".
Rule 4 (1)(a),(b), & (c) of the guidelines require the appointment of a Chief Compliance Officer, a nodal contact person and a Resident Grievance Officer for additional due diligence.
After introspecting the above discussion about informational privacy, it appears that the right to life and liberty guaranteed under article 21 of Indian Constitution which protects an individual against both state and non-state actors can very well accommodate informational privacy. The advancement in technology helps in generating databases related to individuals, wherein ideally it is the individual who should be in-charge of it, but unfortunately he is not. The presence of technology helps to make information about an individual’s private life available to others and tends to influence and even to injure the very core of an individual’s personality i.e., his informational privacy.
The current Indian regulatory framework on informational privacy and data protection is not sufficiently adequate to address the growing concerns arising on account of collection, leaking and linking of data. Definitely there is a need for inclusive legislation which can deal with informational privacy and its related issues. Once the Data Protection bill, 2019 gets enacted, we can expect that the informational privacy will be regulated carefully in the coming future. As the technology raises at an unimaginable speed, further research on concerns connected to protection and regulation of informational privacy is certainly the need of an hour.
¹ (1954) SCR 1077
² (1964) SCR (1) 332
³ (1975) 3 SCR 946
⁴ (2011) 8 SCR 725
⁵ (2017) 10 SCC 1
⁶ Raymond T. Nimmer, Information Law (West Law, Minnesota, 1stedn. 2002).
⁷ R.Venkata Rao, Subha Rao (eds), “A Public Disclosure on Privacy – An Analysis of Justice K.S. Puttaswamy v. UOI” (NLSIU, Bangalore, 1/2018).
⁸ Government of India, Report: Committee on A Free and Fair Digital Economy Protecting Privacy, Empowering Indians (Union Ministry of Electronics & Information Technology, 2017).