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Advocating Tech Neutral Privacy Laws
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Privacy has rarely been discussed in India. Even in media, privacy features in headlines when some industrialist’s recorded conversations are published in newspapers and he chooses to approach the court to protect his right. For the common people, privacy weighs a tad lower than all other issues.
In terms of civil society discussing privacy we have been moving at snail’s pace. In 1890, Samuel D Warren and Louis D Brandeis wrote a pathbraking article on right to privacy in the Harvard Law Review. The article paved the way for the legislations which we see today protecting the right to privacy of individuals. Clearly, America initiated its discourse way before us. On the other hand we have not much to boast on this, apart from the contributions made by the Supreme Court which recognised the right to privacy as a part of right to life under Article 21 of the Constitution.
Around 14 years ago India legislated the Information Technology act, 2000 which codified the right to privacy. However, the said legislation glued the right to privacy with the use of technology. Further, the bills like the Right to Privacy Bill, 2010 have also not moved away from the fixation with technology. In spite of the Supreme Court constantly reminding us, one critical issue which we have missed is that the right to privacy is a basic right and not related to technology. A learned man once said India lives in different ages at the same time. And rightly so, we have satellites tracing the celestial path on the other hand we also have bullock carts managing the muddy roads. Therefore,it will be relevant to know as to why the government has not opted for technology neutral privacy law which guarantees privacy whether one uses technology or not? One of the reasons may be the use of technology has widely impacted the people’s right to privacy. However, this does not justify that a person who does not use computers should not have codified laws to protec his privacy.
Please note that notwithstanding the advent of technology the privacy concerns remain same. Even if somebody writes something personal on a piece of paper or orally communicates to another person, he or she has the legitimate right to expect that his/ her information will be protected. Tech neutral right to privacy may take into consideration the ages India lives in. Even with reasonable approximation it cannot be concluded that all Indians use computers to provide their private information. Considering the scenario of an illiterate person in a remote village who provides oral details for account opening form. Shouldn’t that villager expect that whatever he has provided should be protected? Equity demands the answer to be in affirmative.
Tech neutral privacy laws do not change the principles evolved to protect the privacy of individuals. The keyword in such legislations is consent. Consent should be accorded for (a) collecting the information; (b) transferring the information to a third party; and (c) using the said information. Apart from the above, the person collecting the information should ensure that the collected data is protected. These requirements and the mechanism concerning these requirements are patently tech neutral. Consent may well be obtained in non – electronic form i.e. on a piece of paper. Further, the file or documents (even in paper form) containing private information may be secured. Therefore, whether technology is used or not the obligation to protect the information remains same and the principles remain same.
Another counter argument is whether the said tech neutral laws would take into technological evolutions. The answer is in affirmative. As an example when the Information Technology Act, 2000 was enacted it took into account the impact made to other legislations. The other legislations like the IPC were suitably amended to ensure that the provisions of the Information Technology Act, 2000 remain relevant when the issue of interpreting them with other legislations arise. Therefore, it is very much possible for the legislature to resolve the inconsistencies with the tech neutral privacy laws.
Right to privacy is a fundamental right and should be guaranteed to all persons. Such law will provide the basic framework and the government will only need to factor in technological evolutions as and when such evolutions happen. It will also reflect a focused approach on a sensitive issue like privacy. Unfortunately, what we have today is a legislation dealing with technology, in which the government has graciously devoted a section to guarantee the right to privacy. Ask the illiterate villager who has not used a computer system and you will get your answer on the efficacy of that section.
Prashant Kumar, the author is a Senior Associate at J. Sagar Associate. Views expressed are personal.
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