• 5.

Right to Privacy and its Legal Framework

• Sonal R.

• Concept of Privacy

• Right of Privacy can be defined as the right of a person to enjoy his own presence by himself
and decide his boundaries.

• Individual has a right to limit sharing his personal information with other individuals or
entities or the media.

• Personal information is a form of personal property to an individual.

• Right of privacy- Different Jurisdictions

• Universal Declaration of Human Rights,1948- Article 12 recognizes right of privacy

• Article 17 of the International Covenant on Civil and Political Rights,1996-Right to privacy

• Article 8 of the European Convention on Human rights- Right to privacy

• India- Right to privacy is embodied in Art. 21 of the Constitution of India.

• Threat to privacy on Internet

• Use of Cookies, web bugs and trojans and other viruses to collect personal information.

- Cookies provide a way for the website to recognize you and keep track of your preferences.

- Advertising companies install cookies to study the preferences.

- Data collected through cookies is sold to third parties.

- A web bug is in the form of graphic that lies on a website that makes it possible for a third party to
check the person who reads a web page or an email message.

- To prevent such harmful effects, reliable antivirus is quite essential.

• INDIA ON PRIVACY

• Constitution of India:

 Art. 19 - Freedom of Speech and Expression

 Art. 21 – Right to Life and Personal Liberty

• IT Act, 2000 (Amnd. 2008):

 Data privacy

 Personal privacy

 Powers of Government
 • 3 Ingredients to prove breach of confidentiality/Privacy:

• The information is confidential.

• The information is communicated in confidence.

• There must be unauthorized use of the information to the detriment of the plaintiff.

• Supreme Court on Right to Privacy:

• Previous decisions of SC on Right to Privacy:

• I. M.P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors. 1950 SCR
1077

• The case related to search and seizure of documents of some Dalmia group companies
following investigations into the affairs of Ms Dalmia Jain Airways Ltd. The DM issued the
warrants, and searches were carried out at 34 places belonging to the group. Voluminous
records were seized. In writ petitions before the Supreme Court, the aggrieved parties
challenged the constitutional validity of the searches saying their private records were taken
away, and claimed that it violated their fundamental rights under Articles 19(1)(f) — right to
acquire, hold and dispose of property — and 20(3) — protection against self incrimination.

• Held: No Right of privacy under Constitution of India.

• Supreme Court on Right to Privacy:

• Justice K.S Puttaswamy (Retd.) v. Union of India and Ors. WP (C) 494 of 2012

 The constitutional validity of the Aadhaar system (a nationwide biometric identification

system) had been challenged before the SC. This issue was before a 5 judge bench of the
Court ("Aadhaar Bench"). One of the key issues is whether the norms for compilation of the
demographic biometric data by the government violates the right to privacy. To answer this
question the SC had to first answer: whether there is a constitutionally mandated
fundamental right to privacy. Due to conflicting judgments of the SC in the past, the Aadhaar
Bench referred this question before a 9 judge bench of the SC ("Privacy Bench") to finally
determine whether there existed a fundamental right to privacy.

• Supreme Court on Right to Privacy:

 Held:

I. The right to privacy is protected as an intrinsic part of the right to life and personal liberty
under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution;
and

II. The earlier judgments of the SC in Kharak Singh and MP Sharma to the extent they held
otherwise, are overruled.

• Supreme Court on Right to Privacy:

• The SC's ruling is rooted, inter alia, in the following reasoning:

 Privacy as an inalienable right: Privacy is a natural right, inherent to a human being. It is

thus a pre- constitutional right which vests in humans by virtue of the fact that they are
human. Privacy is not bestowed upon an individual by the State, nor capable of being taken
away by it. It is thus inalienable.

 Relationship with Dignity: Privacy is an element of human dignity, and ensures that a
human being can lead a life of dignity by, among other things, exercising a right to make
essential choices, to express oneself, dissent, etc. Dignity was, consequently, an intrinsic
aspect of the right to life and liberty enshrined under Article 21 of the Constitution.

 Commitment to International Obligations: The recognition of privacy as fundamental

constitutional value was a part of India's commitment to safeguard human rights under
international law under the International Covenant of Civil and Political Rights ("ICCPR") .
The ICCPR recognizes a right to privacy.

• Breach of privacy under IT Act, 2000- Provisions

• [Section 66E] [Punishment for violation of privacy] (Inserted Vide ITA 2008):

• captures, publishes or transmits the image of a private area of any person without his or her
consent.

• “transmit” means to electronically send a visual image with the intent that it be viewed by a
person or persons;

• “capture”, with respect to an image, means to videotape, photograph, film or record by any
means;

• “publishes” means reproduction in the printed or electronic form and making it available
for public;

• Punishment: Three years or with fine not exceeding two lakh rupees, or with both.

• Breach of privacy under IT Act, 2000- Provisions

• Offence Name – Sec. 72 Penalty for breach of confidentiality and privacy

• Description - Any person who, in pursuance of any of the powers conferred under IT Act,
has secured access to any electronic record, book, register, correspondence, information or
document without the consent of the person concerned discloses such electronic record,
book., register, correspondence, information, document to any other person.

• Penalty - Imprisonment for a term which may extend to 2 years, or with fine up to 1 lakh
Rupees, or with both.

• Breach of privacy under IT Act, 2000- Provisions

• Sec. 72 A- Punishment for disclosure of information in breach of lawful contract:

• “Save as otherwise provided in this Act or any other law for the time being in force, any
person including an intermediary who, while providing services under the terms of lawful
contract, has secured access to any material containing personal information about another
person, with the intent to cause or knowing that he is likely to cause wrongful loss or
wrongful gain discloses, without the consent of the person concerned, or in breach of a
lawful contract, such material to any other person shall be punished with imprisonment for
a term which may extend to three years, or with a fine which may extend to five lakh
rupees, or with both.”

• Right of privacy- Different Jurisdictions

• Universal Declaration of Human Rights, 1948- Article 12:

• No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to
the protection of the law against such interference or attacks.

• Article 17 , International Covenant on Civil and Political Rights,1996-

• No one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour and reputation.

• Everyone has the right to the protection of the law against such interference or attacks.

• Right of privacy- Different Jurisdictions

• Article 8 – European Convention on Human Rights

• Right to respect for private and family life:

 1. Everyone has the right to respect for his private and family life, his home and his
correspondence.

 2. There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for the protection
of the rights and freedoms of others.

• Internet Law & Right of privacy-U.S.A

• The U.S Constitution safeguards the rights of Americans to privacy and personal autonomy.

• Although the Constitution does not explicitly provide for such rights, the U.S. Supreme Court
has interpreted the Constitution protect these rights, specifically in the areas of marriage,
procreation, abortion, private consensual homosexual activity, and medical treatment.

• The Computer Fraud and Abuse Act , 1986.

• The Children Online Privacy Protection Act, 1998.