THE RIGHT TO PRIVACY IN THE DIGITAL AGE

I. INTRODUCTION

Right to privacy is an important human right and serves as the basis for many other human rights. The right to privacy allows us to decide how much we share with the world. Privacy helps in providing a zone of privacy for an individual, from intrusion from the world. It allows each person to have a separate life which enables him to lead life with his will. 

The right to privacy is about making our life comfortable, from the outside world. We have the autonomy to control who enters our body, spaces, belongings, communications, etc. The right to privacy ensures that the individual has complete control over who will have access to personal information (like a name, location, contact details and habits of a person, both online and off the internet), when they have access and the extent to which they can access it. “Privacy is the right to be left alone” says Oxford dictionary of law.[1] 

Hence it implies the freedom to protect our information (both electronic communications, sex orientation, our professional work, our thoughts and intellect from the public eye). 

We can all understand a person wanting to avoid external interference when sending personal mails and chats, Similarly, as online users we would all wish to have control over who uses our information and when and how. 

II. EVOLUTION OF RIGHT TO PRIVACY

Privacy has always been around in literature. Hitopadesh, a collection of Indian fables in Hindu literature refers to “Things that should not be told publicly include religion, sex and personal family life”.  

In the 1954 case of M.P Sharma v Satish Chandra,[2] an 8-judge bench of the Supreme Court discussed about the searches conducted on documents of the Dalmia Group. The Supreme Court declined that there existed right to privacy in India. According to the Supreme Court, “no specific article of the Constitution deals with right to privacy and therefore the Indian Constitution did not grant the right to privacy.”  

Almost ten years later the quest for privacy arose again in the case of Kharak Singh v. State of Uttar Pradesh,[3] but it again got dismissed. Supreme Court stated that although there is no fundamental right to privacy, there existed a right against unreasonable search but then there was a partial violation on the right by the nighttime visit to the homes of accused for surveillance which violated “personal liberty.” Justice Subba Rao expressed his dissent in this case and wrote that even though India did not recognize right to privacy as a fundamental right, the absence of it made it very difficult for individual to lead life. This dissent helped paving a new path to the existence of the right to privacy. 

Nearly 11 years after the above-mentioned cases, in Gobind v. State of Madhya Pradesh,[4] a 3-judge bench of the Supreme Court of India recognized that a fundamental right to privacy exists under Article 21.[5] Gobind lost the case, but privacy still was able to come under the umbrella of the constitution with its presence under personal liberty. In this case Supreme Court, although acknowledging the privacy of individuals also stated that at times the state might want to infringe it for the greater good.  

At this point in time our fundamental rights gave us a legal ground for the protection of our right to privacy. K.S Puttaswamy v Union of India[6] in 2017 posed a challenge and ultimately in 2018, nine judges of the Supreme Court passed the judgment recognising the right to privacy under Article 21.[7] The bench in K.S Puttaswamy v. Union of India[8] observed:  

1. The recognition of the right to privacy under the constitution doesn’t need a new amendment it just needs proper interpretation. 
2. Privacy must encompass protection of marital life, family life, procreation, sexual orientation, and other aspects of a person’s personal life
3. The privacy of a person includes being left alone.  
4. It doesn’t matter if you’re on public ground because it doesn’t imply surrender of the right to privacy. 
5. The constitution must be interpreted loosely in order to keep up with the ever changing technological innovations for progress.  
6. The right to privacy is not an absolute right, just like many other fundamental rights.  
7. The constitution recognizes that having the right to privacy protect an individuals private sphere from any unwarranted intrusion or government and private interference.  

III. CONCERNS OF PRIVACY IN THE DIGITAL AGE  

In today’s world where we are completely dependent on technology, the importance of privacy has gained a higher significance. Everything that once remained offline now has to become online, be it currency, entertainment, communication, or data exchange. This transfer of personal information happens through the internet and is stored on our electronic devices.  

In the modern day the use of smart phones and social media platforms leads us to generating gigabytes of personal data every single minute.  

As per the reports submitted by the United Nations High Commissioner for Human Rights, technologies are a threat to “human dignity, autonomy and privacy.” However, numerous international human rights instruments have recognized and safeguarded this right. Such as the Universal Declaration of Human Rights, 1948 (Article 12)[9] and International Covenant on civil and Political rights, 1966 (Article 17),[10] among many others. After K.S Puttaswamy, India is now under great need of data privacy laws.  

IV. SOCIAL MEDIA AND PRIVACY  

A lot has changed over the last few years in terms of our online behavior, specifically our interaction on social media. People tend to share personal information online with people all over the globe.  

This blurring between personal and public has only increased our visibility in terms of personal space.  

However most users don’t realise the magnitude of privacy breach they are inviting in their life by over sharing their personal lives on social media platforms such as Facebook, Instagram, Twitter, etc. Such platforms often collect analyze and use personal data for their business models. Moreover, we often use apps with additional features such as Facial Recognition or Location Tracking without knowing much about them.  

V. DPDP ACT (DIGITAL PERSONAL DATA PROTECTION ACT), 2023 

The 21st century is an era where we are extremely dependent on technology, and our country India’s developing data privacy laws have showcased its strong stand in providing better privacy to the digital space. India’s Data Protection Bill aims to provide a framework on how digital personal information can be handled, whether it’s collected online or offline.  

This law will be applied to all such personal data whether collected in India or outside of the country if that data pertains to an individual located in India. The Data Protection Bill prioritises individual control over personal data. For instance, all consents collected for using personal data must be explicit, freely given, informed, specific, conditional, and unambiguous, giving individuals clear control over who can use their data, for what purpose, and how.  

In India all such collection of data occurs with the consent of the individual, where the individuals agree to have their information stored. According to Section 7(3)[11] of the DPDP Act, individuals have the right to withdraw their consent at any given point. For minors or disabled individuals, there are specific provisions for their data.  

If an individual is under the age of 18, it is their legal guardian or parent who is the equivalent of data principal, while if an individual is physically or mentally disabled, then the corresponding data principal will be acting in their stead.  

Certain conditions need to be fulfilled, such as consent for specific data. This bill puts restrictions on “data fiduciaries” (the persons that collect, control and process the data) to manage personal data responsibly, for the benefit of “data principals” (the persons related to the data).  

VI. CONCLUSION  

We live in a digital age where our private information is always at risk and thus there is a necessity of a proper legislative mechanism to ensure our right to privacy. It is necessary for the government to create and enforce proper legal structures for the purpose of safeguarding an individual’s private information.  We cannot overlook that due to the fast pace of technology our lives are more interlinked 

VII. REFERENCES

[1] ELIZABETH A. MARTIN & JONATHAN LAW, A DICTIONARY OF LAW (Oxford Univ. Press, 9th ed. 2018).

[2] M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.

[3] Kharak Singh v. State of U.P., AIR 1963 SC 1295.

[4] Gobind v. State of M.P., (1975) 2 SCC 148.

[5] INDIA CONST. art. 21.

[6] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

[7] Ibid.

[8] Ibid.

[9] Universal Declaration of Human Rights art. 12, G.A. Res. 217A (III), U.N. Doc. A/810 (Dec. 10, 1948).

[10] International Covenant on Civil and Political Rights art. 17, Dec. 16, 1966, 999 U.N.T.S. 171.

[11] Digital Personal Data Protection Act, No. 22 of 2023, § 7(3), INDIA CODE (2023).