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SC outlines three-tiered approach to privacy, keeping in mind use of personal data in economy

On Wednesday, the hearing on the issue of right to privacy was concluded, and the judgment has been reserved. Giving an indication of the approach it may take to privacy, the Supreme Court outlined a 3-tiered approach, dividing privacy into intimate, private and public aspects. This approach and the observations of the bench during the hearing, indicate that Supreme Court will take modern uses of personal data into consideration. The right to privacy may be designed so such uses and innovation in this sector are not hindered.

Three tiers of intimate, private and public zone

Representational image. AFP

Representational image. AFP

After the completion of the hearing, the bench gave the following 3-tiered approach to privacy:

Intimate Zone: This is the most intimate zone of privacy, concerning marriage, sexuality and relations with family. The law should frown upon any intrusion. The state may still intrude on this zone in exceptional circumstances, subject to meeting stringent norms.

Private Zone: This involves the parting of personal data, through use of credit cards, on social networking platforms, IT declarations, etc. Here, the data can be used only for the purpose for which it had been shared.

Public Zone: This is where minimum regulation is required for privacy protection. In this zone, personal data shared does not mean that the right to privacy has been surrendered. The individual retains his privacy to body and mind.

Bench to consider use of personal data in service sector

Personal data of users today forms the backbone of the knowledge economy and in big data analytics. The bench has taken the significance of this sector into account, noting that the choices and personal preferences of 1.4 billion people generates demand in the service sector. It was noted that the decision taken will have an impact on the growth of the service sector. Describing this as a ‘critical’ sector, the bench stated that it will keep in mind that this sector depends on the personal data of the Indians using the service.

Privacy should not stifle innovation

Similar observations were also made by the court during the course of the hearing. The counsel for the Centre had, on Tuesday, argued that all technology is life-enhancing, and this must be kept in mind while laying this right down. To this, the bench responded that privacy must not hinder innovation in the IT sector or take away the benefits of the knowledge economy. The bench noted that privacy must develop in a socio-cultural context.

Scope of misuse of big data

The service sector, in fact, forms one of the biggest sources of misuse of data and privacy violations. With the era of big data also came the era of big privacy violations. For example, cookies, ostensibly for targeted advertising and other such purposes, enable constant tracking of a person’s every move online. Tracking on mobile phones through apps collects still more data.
Even in the public sector, even though the State has declared it to be impossible, there is huge potential for collection of data through Aadhaar. The amount of data that can be linked to Aadhaar in future is immense, including data from PAN, IT returns, bank accounts, suits, property deals, to name a few.

Purpose limitation principles to be applied

Given the volume of data and the potential for its abuse, it is essential that its collection and usage be subject to strict safeguards. Applying principles like limitation on purpose, collection, use and disclosure, and effective data anonymisation to data use in these sectors is essential.

The Supreme Court has discussed the adoption of at least one of these principles — the purpose limitation principle. This can be seen in the second tier — the private zone, where the use of data in this zone is to be limited to the purpose for which it was shared.

Life-enhancing nature of technology to be encouraged

This issue also arose again in Wednesday’s arguments, while arguing for the life-enhancing nature of technology and the need for its use to the maximum. To this, the bench again emphasised the importance of limitation of purpose. The State, expectedly, was not happy with the idea of purpose limitation, arguing that such fetters on the use of data will make foreign entities like Google more powerful than the Indian state. Yet another argument made by the State was that privacy as a fundamental right will no longer be waivable by contract.

It must be remembered here that purpose limitation restrictions will not result in making private companies more powerful. A fundamental right to privacy (if granted) which binds the state will also bind private companies in the future, be it as a private company performing a public duty which is bound by fundamental rights, or through a privacy law in future which enshrines a fundamental right to privacy.

Entrusting data to state does not put it in the public domain

When questioned on their apprehensions with purpose limitation restrictions on data use, the counsels for the State responded that privacy as a right does not mean that every law should be struck down on the grounds of privacy. To this, the bench reminded the counsel that entrusting data to the state is different from putting it in the public domain.

Non-existence of privacy in the digital age

Another issue raised was that privacy was practically non-existent in today’s digital age. The bench observed that the fact the privacy is non-existent is not a reason to say that it should not exist. The bench further observed that even if privacy is practically broken down, this doesn’t thereby destroy a constitutional notion of privacy. In fact, it is more necessary now.

Privacy with liberty seen in several fundamental rights

The emphasis of the court on the importance of a constitutional notion of privacy gives hope for a recognised right to privacy. While considering the contours of the right to privacy, the bench also observed that taking a straitjacket interpretation of the constitutional status of the right to privacy will be difficult. This is due to the link between privacy and liberty, which can be seen in several fundamental rights guaranteed in Part III of the Constitution. On the whole, the Supreme Court can be expected to take a wholesome view of the matter, including the constitutional possibility for a right to privacy and the advantages and disadvantages of data use in the digital age.

(Sources of the arguments include written submissions at the Bar and Bench and live coverage of the case on the Twitter handle of Prasanna S.)

Updated Date: Aug 03, 2017 13:58 PM

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