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Comments on Privacy Bill, 2011

Comments on Privacy Bill, 2011

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Published by AparGupta

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Published by: AparGupta on Jul 07, 2011
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some comments on the privacy bill, 2011
April, 2011 which aims to create a statutory right of  privacy in Indiadownload here
 ). This post contains certain comments onthe key features of the Privacy Bill. Also to gather what forms of privacy arebeing created by the Bill, two popular privacy taxonomies ( 
solove and  prosser 
 ) are utilized to contrast the privacy rights created by the Bill. A lot of the suggestions here make reference to the analysis  posted before as well  as to various provisions of the bill without extracting them. Hence it issuggested that readers may keep both of them handy to gather context. In case of any questions or comments please contact me at mail@apargupta.com.I would like to acknowledge the work put in by Akansha Nehra, an intern at my office in helping me with this note.
Broad Comments
For a law of its ambit, the Bill seems to be short on definitions. This willcertainly cause problems when the law is put into operation. For eg. severalkey terms such as
good name
which have been included underSec. 3 as forming the right to privacy have been left undefined.
Considering the evolution in the modes of communication and fast evolutionof the IT sector, the law has to be such as to be able to cater to all futuretechnologies. Rather than covering the modes of interception, the definitionof,
is still stuck to physical formats of performing theinterception.
The definition of 
as provided in the Bill is said to refer only to acitizen of India. Here, it seems to be that the Privacy right under the Bill will be available only to citizens. Further confirmation is provided by the Preambleto the Bill which also states the same. Though, this does not seem in line withrecent press reports.
 Due to the wording, the privacy right under Sec. 3 does not cover the classes of persons who enjoy the right to privacy as identified under Article 21. Atpresent the right to privacy under Article 21 is available to all personsirrespective of them being citizens or not.
The definition will also have implications in interplay with a the UIDAI project which (as per the last draft of the UIDAI bill) extends to
and not
The coverage of the Privacy Bill may circumvented with respect tothe UIDAI, as it may be reasoned that the UIDAI is on the basis of residenceand there is no way it can be ascertained who is a citizen in the UIDAIdatabase.
Personal Information
The Bill defines the subject of the
personal information
as an
. However, the exact yardstick of defining an
identifiable person
hasnot been provided. This seems to have been inspired in part from the EUDirectives on Data Protection. A concern with respect to the definition is with respect to individual bits of data which are gathered without being linked to a singular indentifiableperson. Streams of data may not be captured only with respect to anidentifiable individual. Such data in isolation may not reveal much. However, when such data is aggregated it may lead to privacy harms. Further, thereason for the insertion of a rider on to the identification of the subject data isnot completely clear. Another, important feature of this definition is that it specifically excludes arange of information. These are with respect to employers gather informationof their employees. This may create practical anomalies in todays fluid work environment where organisations engage various individuals beyond a pureemployee-employer relationship. It is questionable whether the collection of data of such people by organisations will be protected by the Bill. There may also be implications for workplace privacy.
The definition provided in the Bill attempts to explain the concept of surveillance consisting of three ingredients, (a) covertly and without a personsknowledge; (b) following; or (c) watching over a person.Further, it specifically provides for listening or filming devices. This is againtechnologically very specific. Interestingly, the question that remains is whether this will include sting operations. I believe that the prohibition onsurveillance would extend to sting operations as there is no exception for it asit is provided for data collection and disclosure.
Right to privacy 
The scope of this right is provided in Section 3. The construct of Section 3 is very interesting, as in the beginning itself it provides for a saving provision.
The features of the definition are:
Citizen as an Individual
The right that is provided for in this Bill is only of a Citizen of India, and doesnot cover any other person.
Limited Right
This right of a citizen as enshrined in this draft section is in fact a limitedright. This is inferred from the fact that carve outs are created in more thanone aspec
t. Unlike, other substantial rights having a „Notwithstanding‟ clause,it is a „Subject to‟ clause and the same is limited by 
Order of a Court b)
 Any law for time being in force. Interestingly, these are not theonly carve outs. Under section 90, the provision of this Act has been excluded from Applicability of this Act:a)
Cases covered under Right to Information Act or any other law relating to disclosure b)
Criminal law relating to corruption, misappropriation, cheating,etc.c)
 Acts illegal under Narcotics Drug and Psychotropic Substances Act, 1985d)
Economic offences or offences under Essential Commodities Act,1955, Food Adulteration Act, Acts dealing with environmente)
Offences under Army Act, and other Terrorists related Actsf)
Offences relating to Defence Forcesg)
Others explicitly excluded.
Inclusive Definition
The definition provided is by method of an inclusive definition, as it includes11 acts that are manifestations of right to privacy under the Bill. Importantly they are not distinguished appropriately, as they stick to various forms of actsthat are prohibited, unless permitted.Thus, in substance privacy has not been defined. Though, protection of thesemanifestations of right to privacy has been discussed in detail in theforthcoming chapters of the Bill.The definition explicitly includes the following manifestation of Right toPrivacy:a)
Confidentiality of Communication b)
Confidentiality of his private/ family lifec)
Protection of his Honor and Good named)
Protection from Search, Detention, or Exposure of lawfulcommunication between and among individualse)
Privacy from his Surveillance

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