Understanding Privacy
The right to privacy is one of those many concepts of law whose abstract nature makes implementation of the same a complex task. The common saying “your liberty ends where my nose begins” is reflective of the layman’s interpretation of their right to privacy. Although simplistic and devout of any reasonable restrictions, for the layman, it is a reasonable presumption.
A more comprehensive definition of privacy may be found in the Black’s Law Dictionary, which calls privacy the “right to be let alone; the right of a person to be free from unwarranted publicity; and the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.”1
To elaborate, if a person ‘A’ does not want the results of his medical test, which was positive for a fatal disease to be read by anyone except the concerned doctors and himself or herself, he or she has the right to the same. But this is not a generalizing statement, it has, and rightly so, reasonable restrictions. If the disease of person ‘A’ is contagious, unprecedented and can spread like the Bubonic Plague, then, as per the dictionary definition, the citizens have a right to know about it, as the public is “necessarily concerned”. That is where the subjectivity arises and is the cause of most debates about the right to privacy.
In the Indian legal context, right to privacy can be interpreted from Article 21 of the Constitution, which defines the Right to Life. The Supreme Court has taken a very liberal approach to the same and has construed a vast multitude of rights under right to life and personal liberty.
In contemporary times, with the advent of social media, the discussion on right to privacy is on the forefront again. Due to the subtle ways in which our privacy is violated or can be violated, issues are often left unaddressed, or are addressed at a very late stage. Unlike, say, the Emergency of 1975, the violations of the right to privacy have been due to the very thing that gives us a dopamine rush; the internet.
Right to Life (Article 21) and Privacy
Article 21 of the Constitution of India has been the source of a lot of judicial activism and may be called the main reason for the activist approach employed by our Appellate courts from the late 20th century. Previous judgments of Kharak Singh2 and MP Sharma3 had not employed such a holistic approach for interpretation and restricted the interpretation of the term “personal liberty”. But in the Maneka Gandhi case4 the Supreme Court included right to live with personal dignity under the purview of Article 21. After this landmark judgment, the apex court has continued on the path of a liberal interpretation of this Article.
In the case of PUCL v Union of India5, the Supreme Court held that tapping of telephone lines causes a breach of privacy of a person, unless it is by procedure established by law, under Article 21. This essentially brings right to privacy under the purview of the right to life.
In August, 2017, the Supreme Court has further had to deliberate over the right to privacy for the WhatsApp – Facebook and Aadhaar privacy cases, which are sub judice.
Social Media Related Laws in India
The laws related to social media in India are not sufficient. There are almost no judgments by our honourable courts regarding social media content, and those few which exist are mostly related to defamation.
The PUCL case6 can be interpreted further in the context of social media7. A contemporary interpretation of the 1997 judgment is required in the context of the 21st century. If a person has a right to privacy of not being tapped on the phone, then it can be reasonably construed that the conversations through social networking applications like WhatsApp are also protected. Hence, WhatsApp sending the data to Facebook after its new update is violating this principle (elaborated in Part IV of the blog).
The Information Technology Act, 2000 (hereinafter referred to as the “IT Act”) understands privacy by a very literal interpretation and does not capture the essence of privacy as a concept. Section 66E of the IT Act refers to privacy as only physical privacy as per the traditional concepts of modesty. If any person knowingly transmits any image through the electronic medium of the private parts of a human being without their consent, then it is considered to be violating this Section. The closest reference to social media contained in this Act is under Section 798, which says that the medium on which any data is hosted, like Facebook, Twitter etc., is not liable for any content on it by a third party. In simple terms, if person ‘A’ posts something which is contravening any existing law on Facebook, then Facebook is not liable for it.
The guidelines put forth in the Shreya Singhal case say that intermediaries like Facebook, Google etc. have to remove objectionable content hosted on their platform after employing their discretion upon the complaints received to remove the same. In theory, proper implementation of these guidelines can lead to protection of privacy of individuals. But the catch is that these intermediaries already have such options available. The real issue to be addressed is the usage of data and access to it provided to these very intermediaries.
The recent trend on social media of memes has been invasive of the privacy of many a person. The meme of Scumbag Steve originated from a picture of a certain Blake Boston posted on MySpace, a social media platform, circulated without his consent. This caused a lot of mental trauma for Blake Boston, and his mother, both.9 This is one such incident which gained prominence on mainstream media.
WhatsApp – Facebook Privacy Case
Constitutional rights deal with the relationship between the state and the individual, but due to the policy of privatization, a literal interpretation of this view can be considered restrictive due to the increasing number of large private entities conducting acts which warrant a constitutional scrutiny for proper maintenance of law and order. Hence, private actions are often scrutinized constitutionally, like in the case of Vishaka10 guidelines. This is also being done in the WhatsApp – Facebook case. Here, the actions of a private party, WhatsApp, entering into a contract with another private party, the end user, were constitutionally challenged.
WhatsApp’s latest privacy update says that analytics and data will be sent to its parent company, Facebook. The data includes phone numbers, names, user connections, usage and log data, transactions, status, device and location etc. This data has potential to be used for a lot of tasks which the users aren’t warned about in the EULA.11 This may include surveillance which is a blatant breach of the users’ privacy. Further, it was contended that a vast number of WhatsApp users are not capable of comprehending the implications of the changes, and hence, the update is deceptive.
Although, users have the option of deleting their account, which would automatically erase all data from WhatsApp’s servers, it is still a last resort. The case is currently sub judice before the Supreme Court.
Since the case requires a deep interpretation of the Constitution, the question of right to privacy being a fundamental right was referred to a constitutional bench. The bench decided that there are three “zones” of privacy. The first is the intimate zone, then the private zone, followed by the public zone of privacy. Intimate zone includes your sexuality, physical privacy etc. Private zone consists of information about PAN card number, ATM number and so on. Public zone includes big data analytics etc. The Supreme Court ruled that the first two zones are out of bounds for the purposes of the WhatsApp – Facebook privacy case, while the public zone requires discretion and deliberation on a case by case basis.
V. Conclusion and Proposed Changes to the Status Quo
1. A comprehensive statute needs to be passed by the Parliament which should cover various aspects including social media, where, as elaborated, statutory law is essential.
2. Information Technology Act, 2000 needs a major revamp with respect to social media to widen the definition of privacy as per the definition in Black’s Law Dictionary as the current definition does not capture the essence of privacy.
3. Proper implementation of the judgment of the constitutional bench in the right to privacy case is important.
By Suprateek Neogi, Rajiv Gandhi National University of Law, Punjab