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The Privacy Bill 2011

The Privacy Bill 2011

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Published by: apargupta on Jun 27, 2011
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1
The Privacy Bill, 2011
This briefing note contains a summary of the third working draft of the Privacy Bill, 2011dated 19
th
April, 2011 which aims to create a statutory right to privacy in India. This notealso contains an analysis and comments on the significant features of the enactment. It isimportant to note that the Privacy Bill, 2011 which as per media reports is to be introduced by the government in the next session of parliament has not been formally made public or aconsultation process has been followed in its drafting. In case of any questions or comments please contact me at mail@apargupta.com.I would like to acknowledge the work put in by an Akansha Nehra, an intern at my office in making this note.
1.
 
The Privacy Bill, 2010 : a broad level view
a)
 
It creates a statutory Right to Privacy by means of a broad definition and then createsspecific of protections for it. Recognising the Right to Privacy not to be absolute, theBill identifies various privacy breaches that are permitted. In the Bill, certainprohibited acts are also identified for which civil remedies as well as criminalsanctions are created.b)
 
The government interception and telephone tapping mechanism is changedmoderately from the existing system. The modification is with respect to severalprocedural safeguards which are put into place to avoid unauthorised and unnecessarytap orders.c)
 
A regulatory mechanism is created through the Data Protection Authority of India. Itwill exercise supervision over private parties which will engage in the collection andstorage of personal data.d)
 
Further, in the system suggested, the Bill identifies specific officers/position holdersin various entities (that may be involved in various breach of the right) who shall beheld responsible, in case of any wrong act or any default.e)
 
Disputes under the Bill will be referred to the Cyber Appellate Tribunal which hasbeen set up under the Information Technology Act. These disputes are primarily in thenature of claims by individuals against private data controllers.
2.
 
INDEX: CONSTITUENTS OF THE BILL
The Bill contains fifteen chapters and ninety four sections and has been divided in thefollowing mannerChapterSectionNumberNameI 1, 2 PreliminaryII 3 Right to Privacy
 
2III 4-13Privacy of Communication and Prohibition from itsInterceptionIV 14-23 Procedure for Interception of CommunicationV 24 Prohibition of Surveillance and its RegulationVI 25-26Use of Photographs, Fingerprints, Body samples of persons,DNA samples, and other samples taken at Police StationVII 27-28 Health Information PrivacyVIII 29-31 Privacy relating to DataIX 32-42Obligation and Procedure for collecting or processing or usingor disclosing dataX 43-48 ResiduaryXI 49-62 The Data Protection Authority of IndiaXII 63-66 Grants, Funds, Accounts and Audit and Annual ReportXIII 67 Settlement of DisputesXIV 68-84 Offences and PenaltiesXV 85-94 Miscellaneous
3.
 
SCOPE OF RIGHT TO PRIVACY
1.
 
Section 3(1) provides for the Right to Privacy and stipulates that everyindividual has a right to privacy and the same is subject to any law for the timebeing in force or an order of the Court. It is important to bear that this acts asan carve out since any the privacy right under the Privacy Bill which is createdis subject to existing laws. The privacy rights are in addition to existing lawsand not in derogation to them. Hence any existing law which is in conflictwith any of the mandates of the Privacy right under Section 3 enjoyspreference and legal validity.2.
 
Interestingly though, several laws have been made exempt from the privacyright under Section 90. Though ordinarily these laws would have been exemptas per Sec. 3(1), the draftsman seems to be leaving nothing to chance byexcluding statutes such as the Right to Information Act; The Prevention of Corruption Act; from the ambit of the privacy right. It is also important tocomment on a saving provision under Section 89, which makes space for anynature of right to be also included in the scope of the statutory right of privacy,which may be subsisting already.3.
 
Section 3(2) provides for an inclusive definition by providing for 12 kinds of manifestations of privacy, which are listed below:
 
3a)
 
Confidentiality of communicationb)
 
Confidentiality of private/ family lifec)
 
Protection of honor and good named)
 
Protection from search, detention, or exposure of lawful communicationbetween and among individualse)
 
Privacy from surveillancef)
 
Confidentiality of banking and financial transactionsg)
 
Confidentiality of medical and legal informationh)
 
Protection from identity theft (criminal, financial, identity cloning,medical)i)
 
Protection from use of photographs, fingerprints, DNA samples, and othersamples taken at police stations or other places j)
 
Privacy of health informationk)
 
Protection of data relating to an individual.
4.
 
PRIVACY OF COMMUNICATION AND INTERCEPTION
1.
 
After creating the right to privacy under Sec. 3(2), the Bill provides prescriptions forthe confidentiality of communication and safeguards for their interception underChapters III and IV of the Bill. It is important to bear that the privacy right in India isessentially a set of procedural safeguards. The more safeguards the stronger theprivacy right. The expanse of the legal provisions recognises that the most prevalentprivacy breach is with respect to the interception of communications.2.
 
The terms, “
confidentiality
” has been defined as, “
a process of sharing facts, ideas,opinions, thoughts, and information through speech, writing, gestures, sound, images,signals or pictures, graphs, symbols, diagrams between two or more individualsthrough telephonic conversations, radio messages, electronic mode (including
internet or satellite) or postal letter or any other mode”.
Interception further has beend
efined as, “
undertaking the stopping of transmission of any communication, or interception or detention thereof (including tapping of the telephone conversation or copying of data)
”. The interception
safeguards are explained in a tabular form below:Feature Provision
Rule of Privacy
Privacy isnotAbsoluteSection 4 stipulates the right of any citizen of India, to have his communication protected frominterception. But, the same is not an absolute rightand is limited by the provisions of the Bill underdiscussion.

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