Privacy Rights: Juggling Freedom of Expression and Individual Privacy

Introduction

Individual privacy rights and media practices are in a complex conflict as a result of today’s quickly changing communication and technological landscape. As a critical observer as well as an open forum for debate, the media still plays an important role in protecting freedom of speech. But it’s important to protect both rights and privacy. These two rights must peacefully coexist if a just and democratic society is to be developed. Maintaining the privacy and security of personal and financial information in the digital age is one of the most urgent legal issues of our time. Think about the risks that contemporary technologies pose to our security and privacy. Democracies must strike a balance between the right to privacy of individuals and the freedom of the press to express itself. For educating the public, holding institutions accountable, and promoting free and open debate, a free and vibrant media is essential.

Media entities carry the responsibility to unearth corruption, challenge established norms, and present a diverse range of perspectives. This freedom fosters the exchange of ideas, a critical driver of societal advancement.

An overview of the 2019 Personal Data Protection Bill (“PDP Bill”)

This legislation establishes a Data Protection Authority and outlines the regulations governing the protection of personal data, and it was proposed in the Rajya Sabha by Ravi Shankar Prasad. All Indian corporations, whether public or private, must abide by this law. The bill also calls for stricter regulation and mentions “sensitive personal data”.Specific data protection laws must be followed by data fiduciaries and processors. This bill contains a few exceptions. The bill was divisive from the start because it contained a data localization policy that required foreign companies to collect personal data to do so.

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PDPA

Intermediaries on social media

Provisions in this bill are also made for middlemen who facilitate user interaction, data processing, and information sharing online. The actions of all intermediaries who interact with users, however, have the potential to affect democracy, elections, and public order. All intermediaries have a notification threshold. One of the obligations is the requirement for a voluntary user verification mechanism for Indian users to confirm that no wrongful loss or gain has occurred.

Data Security Impact Analysis

Before processing any data that contains significant or sensitive personal data, a data fiduciary must conduct a Data Protection Impact Assessment. Certain data fiduciaries appointed by the authority must follow the law. The data auditor in charge of auditing the DPIA will also be named. The Data Protection Impact Assessment must include the following items:

  • A listing of processing activities, including their nature and purpose.
  • Evaluation of the potential harm caused by data processing
  • Preventative measures.

Lawyers anticipate an increase in Privacy-related litigation

The report claims that “every government action could now be contested in court if it is thought to violate a person’s privacy.” The state and the government arm may both be sued if a person receives a call or a WhatsApp message from a state-owned company that is believed to violate that person’s privacy. This was not possible before the fundamental right to privacy was protected by the Constitution. It will be challenging and time-consuming to separate the rights to privacy and information. However, the choice marks a sizable advance in the direction of greater government transparency.

The court emphasized several guiding principles, including those put forth by an expert group of the previous Planning Commission, while praising the government’s efforts to enact a strong data privacy law. These principles include giving individuals access to corrections, allowing choice and consent, restricting data collection to a specific purpose, avoiding unnecessary disclosures, and maintaining security openness, and accountability. Jaising asserts that when it comes to data protection, the government now holds the initiative. Lawyers argue that the decision does not address the specific entitlements and interests that comprise the fundamental privacy rights, which must be considered on a case-by-case basis.

Potential Solutions

In the current law, numerous gaps exist that must be filled, which requires an immediate update. Their names are as follows:

  1. The Information Technology Act’s clause only applies to corporate data gathering and handling. It lacks additional information as a result.
  2. Even if the information is sensitive, it cannot be considered secure if it is publicly available. There are no privacy protections in the Income Tax Act for your AADHAR cards, despite being linked to them.
  3. The Personal Data Protection Act allows for detention, arrest, and other measures as necessary.
  4. The PDPB bill does not mention a deadline for reporting a data breach. Furthermore, it does not stop data breaches because a complaint can only be made if harm has occurred. Data about citizens could be made available to the government even though the bill has not yet been passed.

Recommendations

  1. Ensure that the Personal Data Protection Bill includes reasonable and equitable rules.
  2. It is necessary to define the vague term “incidental purposes” in Section 5(2) of the PDPB bill. Data fiduciaries should be required to publish information about data breaches on their websites to ensure transparency.
  3. The General Data Protection Regulation (GDPR) should allow people access to their data. The data authority should release data protection impact estimation and data audits to the public in the event of a data breach. This is to maintain transparency. There is still much work to be done although the bill mentions all the broad principles.

Conclusion

India’s data privacy and security laws still have some gaps. We must therefore proceed with the implementation and advancement of this developing area of law. India would gain from strict adherence to and application of Indian data protection laws to reduce data protection issues.

Tarun Khurana, Founding Partner at KnK a renowned lawyer is also of the opinion that privacy rights will eventually increase accordingly the scope and thus, will increase litigation.

Author: Aratrika Manhas, A Student at Bharati Vidyapeeth New Law College, Pune, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

References

  • https://www.legalserviceindia.com/articles/fre_pre_v.htm
  • http://elplaw.in/wp-content/uploads/2018/08/Data-Protection-26-Privacy-Issues-in-India.pdf
  • https://blog.ipleaders.in/the-right-to-privacy/
  • https://blog.ipleaders.in/data-protection-laws-in-india/
  • https://www.jstor.org/stable/44782800;
  • https://scroll.in/article/921709/any-regulation-of-online-speech-in-India-must-safeguard-the-rights-to-free-speech-and-privacy;
  • https://www.slideshare.net/AdvPrashantMaliBscPh/privacy-and-privacy-law-in-India

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