Centre for Internet and Society

The Fundamental Right to Privacy - A Visual Guide

amber — 2018-02-16T05:31:37Z

Privacy is the ability of an individual or group to seclude themselves, or information about themselves, and thereby express themselves selectively. This visual guide to the story of privacy law in India and the recent judgement of the Puttaswamy v. Union of India case is developed by Amber Sinha (research and content) and Pooja Saxena (design and conceptualisation).

The Fundamental Right to Privacy - A Visual Guide: Download (PDF)

For more details visit http://editors.cis-india.org/internet-governance/blog/the-fundamental-right-to-privacy-a-visual-guide

Amber Sinha and Pooja Saxena - The Fundamental Right to Privacy: A Visual Guide

amber — 2018-04-18T05:44:23Z

For more details visit http://editors.cis-india.org/internet-governance/files/amber-sinha-and-pooja-saxena-the-fundamental-right-to-privacy-a-visual-guide

Unpacking Data Protection Law: A Visual Representation

amber — 2018-02-15T13:22:00Z

This visual explainer unpacking data protection law was developed by Amber Sinha (research) and Pooja Saxena (design), and published as part of the Data Privacy Week celebrations on the Privacy International blog. Join the conversation on Twitter using #dataprivacyweek.

Cross-posted from Privacy International blog.

Credits: Flag illustrations, when not created by the authors, are from Ibrandify / Freepik.

For more details visit http://editors.cis-india.org/internet-governance/blog/unpacking-data-protection-law-a-visual-representation

CIS Submission to the Committee of Experts on a Data Protection Framework for India

amber — 2018-04-18T16:39:11Z

This submission presents comments by the Centre for Internet and Society, India (“CIS”) on the ‘White Paper of the Committee of Experts on a Data Protection Framework for India’ (“White Paper”) released by the Ministry of Electronics and Information Technology. The White paper was drafted by a Committee of Expert (“Committee”) constituted by the Ministry. CIS has conducted research on the issues of privacy, data protection and data security since 2010 and is thankful for the opportunity to put forth its views. The submission was made on January 31, 2018.

The submission is divided into four parts — I. Preliminary, II. Scope and Exemption, III. Grounds of Processing, Obligations of Entities and Individual Rights and IV. Regulation and Enforcement. The submission follows the same the order as adopted by the White Paper.

Please access the full submission here.

For more details visit http://editors.cis-india.org/internet-governance/blog/cis-submission-to-the-committee-of-experts-on-a-data-protection-framework-for-india

Submission to the Committee of Experts on a Data Protection Framework for India

amber — 2018-02-05T13:39:00Z

For more details visit http://editors.cis-india.org/internet-governance/submission-to-the-committee-of-experts-on-a-data-protection-framework-for-india

New Recommendations to Regulate Online Hate Speech Could Pose More Problems Than Solutions

amber — 2018-01-02T03:06:18Z

The T.K. Viswanathan committee’s recommendations could prove to be dangerous for free speech if acted upon without resolving its flaws.

The article was published by Wire on October 14, 2017

It was reported last week that an expert committee headed by T.K. Viswanathan, former secretary general of Lok Sabha, recommended that the Indian Penal Code (IPC), the Code of Criminal Procedure and the Information Technology Act be amended to include stringent penal provisions regarding online hate speech. While this report has not been made public, the Indian Express reported that the committee’s recommendations include, among other things, insertion and expansion of penal provisions in the IPC on ‘incitement to hatred’ (Section 153C) and ‘causing fear, alarm or provocation of violence’ (Section 505A) to include online speech, and creation of the offices of state cyber crime coordinator and district cyber crime cell.

Online hate speech has been among the more complex issues with regard to the regulation of technology. The complexity of restricting hate speech has to do with a number of factors, including the ubiquity of strong opinions in online speech, often offensive to certain groups, the interplay between individual and group rights, and the tensions between the values of dignity, liberty and equality. Siddharth Narrain has pointed out in his thesis on hate speech law that the use of law to curb offensive or hurtful speech has been done by religious groups, caste based groups, occupation based groups with strong caste associations, language groups and gender based groups. The range of actions arising from such uses of the law include the banning of books, criminal proceedings for political satire, or even ‘liking’ political posts on social media.

The relationship between speech acts and acts of violence is a complicated issue with little consensus on appropriate ways to regulate it. Scholars such as Jonathan Maynard have advocated greater reliance on non-legal responses such as counter speech, as the use of criminal law to tackle speech often has the effect of chilling forms of dissent. The formulation and application of legal tests in criminal law with respect to hate speech is also hard as hate speech has much to do with the content of speech as it has to do with the context, including factors such as power structures. Speech by a figure in a position of power also has a greater likelihood to result in a call for violence.

Before looking at the specific recommendations made by the T.K. Viswanathan committee, it would be worthwhile to also look at the background of this committee. The committee notes with approval the Law Commission of India’s 267th report on the issue of hate speech. The Law Commission, in turn, was acting at the behest of observations made by the Supreme Court in Pravasi Bhalai Sangathan v. Union of India in 2014. In this case, the Supreme Court exhibited judicial restraint and refused to frame guidelines prohibiting political hate speech, and had instead requested the Law Commission to look into it. However, the court noted with approval international case law on the issues, particularly the observations in the Canadian case Saskatchewan v. Whatcott. Relying on Whatcott, the Supreme Court provides a definition of hate speech that includes the following statements:

“Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members..[and] lays the groundwork for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.”

Thus, it is evident that the Supreme Court itself clearly states that hate speech must be viewed through the lens of the right to equality, and relates to speech not merely offensive or hurtful to specific individuals, but also inciting discrimination or violence on the basis of inclusion of individuals within certain groups. It is important to note that it is the consequence of speech that is the determinative factor in interpreting hate speech, more so than even perhaps the content of the speech. This is also broadly reflected in the Law Commission’s report that identifies the status of the author of the speech, the status of victims of the speech, the potential impact of the speech and whether it amounts to incitement as key identifying criteria of hate speech.

However, in the commission’s recommendations, these principles are not fairly represented in the suggested new Sections 153C and 505A, as per a draft released by the Internet Freedom Foundation. Section 505A, for instance, refers to “highly disparaging, indecent, abusive, inflammatory, false or grossly offensive information” and “derogatory information.” These are extremely broad terms, not having any guiding jurisprudence within Indian or international law, which may be helpful in restrictively interpreting them. It is important to note the similarities between this provision and the repealed Section 66A of the Information Technology Act, which sought to criminalise speech that was “grossly offensive,” having “menacing character,” or “causing annoyance..danger..insult..enmity, hatred or ill will.”

These terms in the recommended Section 505A also run foul of the observations of Justice Nariman in Shreya Singhal v. Union of India, where he took exception to the nature of the terms in Section 66A by stating that, “Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms which take into the net a very large amount of protected and innocent speech.” While these terms are somewhat tempered in this provision with a requirement to show intent to “cause fear of injury or alarm,” they remain exceedingly broad and contrary to the requirement that restrictions on speech must be couched in the narrowest possible terms.

The T.K. Viswanathan committee, in addition, seeks to bring, within the scope of the prospective Sections 153C and 505A, electronic speech. As per its recommendations, ‘means of communication’ would include “any words either spoken or written, signs, visible representations, information, audio, video or combination of both transmitted, retransmitted or sent through any telecommunication service, communication device or computer resource.” This could have the impact of bringing in a provision that has some similar effects as that of the now defunct Section 66A of the Information Technology Act. The lack of regard for the Supreme Court’s observations on hate speech, the need to look at it through the lens of equality and the over-broadness of restrictions on speech are likely to be dangerous for free speech if the recommendations of this committee are acted upon.

For more details visit http://editors.cis-india.org/internet-governance/blog/the-wire-amber-sinha-

Should Aadhaar be mandatory?

amber — 2017-12-18T15:54:39Z

This week, a constitutional bench of the Supreme Court will adjudicate on limited questions of stay orders in the Aadhaar case. After numerous attempts by the petitioners in the Aadhaar case, the court has agreed to hear this matter, just shy of the looming deadline of December 31 for the linking of Aadhaar numbers to avail government services and benefits.

The article was published in Deccan Herald on December 9, 2017.

Getting their day in the court to hear interim matters is but a small victory in what has been a long and frustrating fight for the petitioners. In 2012, Justice K S Puttaswamy, a former Karnataka High Court judge, filed a petition before the Supreme Court questioning the validity of the Aadhaar project due its lack of legislative basis (the Aadhaar Act was passed by Parliament in 2016) and its transgressions on our fundamental rights.

Over time, a number of other petitions also made their way to the apex court challenging different aspects of the Aadhaar project. Since then, five different interim orders of the Supreme Court have stated that no person should suffer because they do not have an Aadhaar number.

Aadhaar, according to the Supreme Court, could not be made mandatory to avail benefits and services from government schemes. Further, the court has limited the use of Aadhaar to only specific schemes, namely LPG, PDS, MNREGA, National Social Assistance Program, the Pradhan Mantri Jan Dhan Yojna and EPFO.

The then Attorney General, Mukul Rohatgi, in a hearing before the court in July 2015 stated that there is no constitutionally guaranteed right to privacy. But the judgement by the nine-judge bench earlier this year was an emphatic endorsement of the constitutional right to privacy.

In the course of a 547-page judgement, the bench affirmed the fundamental nature of the right to privacy, reading it into the values of dignity and liberty.

Yet months after the judgement, the Supreme Court has failed to hear arguments in the Aadhaar matter. The reference to a larger bench and subsequent deferrals have since delayed the entire matter, even as the government has moved to make Aadhaar mandatory for a number of government schemes.

At this point, up to 140 government services have made linking with Aadhaar mandatory to avail these services. Chief Justice of India Dipak Misra has promised a constitution bench this week, likely to look only into interim matters of stay on the deadline of Aadhaar-linking. It is likely that the hearings for the final arguments are still some months away. The refusal of the court to adjudicate on this issue has been extremely disappointing, and a grave disservice to the court's intended role as the champion of individual rights.

It is worth noting that the interim orders by the Supreme Court that no person should suffer because they do not have an Aadhaar number, and limiting its use only to specified schemes, still stand.

However, since the passage of the Aadhaar Act, which allows the use of Aadhaar by both private and public parties, permits making it mandatory for availing any benefits, subsidies and services funded by the Consolidated Fund of India, the spate of services for which Aadhaar has been made mandatory suggests that as per the government, the Aadhaar Act has, in effect, nullified the orders by the Supreme Court.

This was stated in so many words by Union Law Minister Ravi Shankar Prasad in the Rajya Sabha in April. This view is an erroneous one. While acts of Parliament can supersede previous judicial orders, they must do so either through an express statement in the objects of the Act, or implied when the two are mutually incompatible. In this case, the Aadhaar Act, while permitting the government authorities to make Aadhaar mandatory, does not impose a clear duty to do so.

Therefore, reading the orders and the legislation together leads one to the conclusion that all instances of Aadhaar being made mandatory under the Aadhaar Act are void.

The question may be more complicated for cases where Aadhaar has been made mandatory through other legislations, such as Prevention of Money Laundering Act, as they clearly mandate the linking of Aadhaar numbers, rather than merely allowing it. However, despite repeated appeals of the petitioners, the court has so far refused to engage with the question of the legality of such instances.

How may the issues finally be resolved? When the court deigns to hear final arguments, the Aadhaar case will be instructive in how the court defines the contours of the right to privacy. The right to privacy judgement, while instructive in its exposition of the different aspects of privacy, does not delve deeply into the question of what may be legitimate limitations on this right.

In one of the passages of the judgement, "ensuring that scarce public resources are not dissipated by the diversion of resources to persons who do not qualify as recipients" is mentioned as an example of a legitimate incursion into the right to privacy. However, it must be remembered that none of the opinions in the privacy judgement were majority judgements.

Therefore, in future cases, lawyers and judges must parse through the various opinions to arrive at an understanding of the majority opinion, supported by five or more judges. While the privacy judgement was a landmark one, its actual impact on the rights discourse and on matters like Aadhaar will depend extensively on the how the judges choose to interpret it.

For more details visit http://editors.cis-india.org/internet-governance/blog/should-aadhaar-be-mandatory

Breeding misinformation in virtual space

amber — 2017-12-08T02:24:29Z

A well-informed citizenry and institutions that provide good information are fundamental to a functional democracy.

The phenomenon of fake news has rece-ived significant sc-holarly and media attention over the last few years. In March, Sir Tim Berners Lee, inventor of the World Wide Web, has called for a crackdown on fake news, stating in an open letter that “misinformation, or fake news, which is surprising, shocking, or designed to appeal to our biases, can spread like wildfire.”

Gartner, which annually predicts what the next year in technology will look like, highlighted ‘increased fake news’ as one of its predictions.

The report states that by 2022, “majority of individuals in mature economies will consume more false information than true information. Due to its wide popularity and reach, social media has come to play a central role in the fake news debate.”

Researchers have suggested that rumours penetrate deeper within a social network than outside, indicating the susceptibility of this medium. Social networks such as Facebook and communities on messaging services such as Whats-App groups provide the perfect environment for spreading rumours. Information received via friends tends to be trusted, and online networks allow in-dividuals to transmit information to many friends at once.

In order to understand the recent phenomenon of fake news, it is important to recognise that the problem of misinformation and propaganda has existed for a long time. The historical examples of fake news go back centuries where, prior to his coronation as Roman Emperor, Octavian ran a disinformation campaign against Marcus Antonius to turn the Roman populace against him.

The advent of the printing press in the 15th century led to widespread publication; however, there were no standards of verification and journalistic ethics. Andrew Pettigrew wri-tes in his The Invention of News, that news reporting in the 16th and 17th centuries was full of portents about “comets, celestial apparitions, freaks of nature and natural disasters.”

In India, the immediate cause for the 1857 War of Indepen-dence was rumours that the bones of cows and pigs were mixed with flour and used to grease the cartridges used by the sepoys.

Leading up to the Second World War, the radio emerged as a strong medium for dissemination of disinformation, used by the Nazis and other Axis powers. More recently, the milk miracle in the mid-1990s consisting of stories of the idol of Ganesha drinking milk was a popular fake news phenomenon. In 2008, rumours about the popular snack, Kurkure, being made out of plastic became so widespread that Pepsi, its holding company, had to publicly rebut them.

A quick survey by us at the Centre of Internet and Society, for a forthcoming report, of the different kinds of misinformation being circulated in India, suggested four different kinds of fake news.

The first is a case of manufactured primary content. This includes instances where the entire premise on which an argument is based is patently false. In August 2017, a leading TV channel reported that electricity had been cut to the Jama Masjid in New Delhi for non-payment of bills. This was based on a false report carried by a news portal.

The second kind of fake news involves manipulation or editing of primary content so as to misrepresent it as something else. This form of fake news is often seen with respect to multimedia content such as images, pictures, audios and videos. These two forms of fake news tend to originate outside traditional media such as newspapers and television channels, and can be often sourced back to social media and WhatsApp forwards.

However, we see such unverified stories being picked up by traditional media. Further, there are instances where genuine content such as text and pictures are shared with fallacious contexts and descriptions. Earlier this year, several dailies pointed out that an image shared by the ministry of home affairs, purportedly of the floodlit India-Pakistan border, was actually an image of the Spain-Morocco border. In this case, the image was not doctored but the accompanying information was false.

Third, more complicated cases of misinformation involve the primary content itself not being false or manipulated, but the facts when they are reported may be quoted out of context. Most examples of misinformation spread by mainstream media, which has more evolved systems of fact checking and verification, and editorial controls, would tend to fall under this.

Finally, there are instances of lack of diligence in fully understanding the issues before reporting. Such misrepresentations are often encountered while reporting in fields that require specialised knowledge, such as science and technology, law, finance etc. Such forms of misinformation, while not suggestive of malafide intent can still prove to be quite dangerous in shaping erroneous opinions.

While the widespread dissemination of fake news contributes greatly to its effectiveness, it also has a lot to do with the manner in which it is designed to pander to our cognitive biases. Directionally motivated reasoning prompts people confronted with political information to process it with an intention to reach a certain pre-decided conclusion, and not with the intention to assess it in a dispassionate manner. This further results in greater susceptibility to confirmation bias, disconfirmation bias and prior attitude effect.

Fake news is also linked to the idea of “naïve realism,” the belief people have that their perception of reality is the only accurate view, and those in disagreement are necessarily uninformed, irrational, or biased. This also explains why so much fake news simply does not engage with alternative points of view.

A well-informed citizenry and institutions that provide good information are fundamental to a functional democracy. The use of the digital medium for fast, unhindered and unchecked spread of information presents a fertile ground for those seeking to spread misinformation. How we respond to this issue will be vital for democratic societies in our immediate future. Fake news presents a complex regulatory challenge that requires the participation of different stakeholders such as the content disseminators, platforms, norm guardians which include institutional fact checkers, trade organisations, and “name-and-shaming” watchdogs, regulators and consumers.

For more details visit http://editors.cis-india.org/internet-governance/blog/asian-age-amber-sinha-december-3-2017-

India’s Data Protection Regime Must Be Built Through an Inclusive and Truly Co-Regulatory Approach

amber — 2018-01-01T16:18:54Z

We must move India past its existing consultative processes for rule-making, which often prompts stakeholders to take adversarial and extremely one-sided positions.

The article was published in the Wire on December 1, 2017.

Earlier this week, the Ministry of Electronics and Information Technology released a white paper by a “committee of experts” appointed a few months back led by former Supreme Court judge, Justice B.N. Srikrishna, on a data protection framework for India. The other members of the committee are Aruna Sundararajan, Ajay Bhushan Pandey, Ajay Kumar, Rajat Moona, Gulshan Rai, Rishikesha Krishnan, Arghya Sengupta and Rama Vedashree.

With the exception of Justice Srikrishna and Krishnan, the rest of the committee members are either part of the government or part of organisations that have worked closely with the government on separate issues relating to technology, with some of them also having taken positions against the fundamental right to privacy.

Refreshingly, the committee and the ministry has opted for a consultative process outlining the issues they felt relevant to a data protection law, and espousing provisional views on each of the issues and seeking public responses on them. The paper states that on the basis of the response received, the committee will conduct public consultations with citizens and stakeholders. Legitimate concerns were raised earlier about the constitution of the committee and the lack of inclusion of different voices on it. However, if the committee follows an inclusive, transparent and consultative process in the drafting of the data protection legislation, it would go a long way in addressing these concerns.

The paper seeks response to as many as 231 questions covering a broad spectrum of issues relating to data protection – including definitions of terms such as personal data, sensitive personal data, processing, data controller and processor – the purposes for which exemptions should be available, cross border flow of data, data localisation and the right to be forgotten.

While a thorough analysis of all the issues up for discussion would require a more detailed evaluation, at this point, the process of rule-making and the kind of governance model envisaged in this paper are extremely important issues to consider.

In part IV of the paper on ‘Regulation and Enforcement’, there is a discussion on a co-regulatory approach for the governance of data protection in India. The paper goes so far as to provisionally take a view that it may be appropriate to pursue a co-regulatory approach which involves “a spectrum of frameworks involving varying levels of government involvement and industry participation”.

However, the discussion on co-regulation in the white paper is limited to the section on regulation and enforcement. A truly inclusive and co-regulatory approach ought to involve active participation from non-governmental stakeholders in the rule-making process itself. In India, unfortunately, we lack a strong tradition of lawmakers engaging in public consultations and participation of other stakeholders in the process of drafting laws and regulation. One notable exception has been the Telecom Regulatory Authority of India (TRAI), which periodically seeks public responses on consultation papers it releases and also holds open houses occasionally. It is heartening to see the committee of experts and the ministry follow a similar process in this case.

However, these are essentially examples of ‘notice and comment’ rulemaking where the government actors stand as neutral arbiters who must decide on written briefs submitted to it in response to consultation papers or draft regulations that it notifies to the public.

This process is, by its very nature, adversarial, and often means that different stakeholders do not reveal their true priorities but must take extreme one-sided positions, as parties tend to at the beginning of a negotiation.This also prevents the stakeholders from sharing an honest assessment of the actual regulatory challenge they may face, lest it undermine their position.

This often pits industry and public interest proponents against each other, sometimes also leading to different kinds of industry actors in adversarial positions. An excellent example of this kind of posturing, also relevant to this paper, is visible in the responses submitted to the TRAI on the its recent consultation paper on ‘Privacy, Security and Ownership of data in Telecom Sector’. One of the more contentious issue raised by the TRAI was about the adequacy of the existing data protection framework under the license agreement with telecom companies, and if there was a need to bring about greater parity in regulation between telecom companies and over-the-top (OTT) service providers. Rather than facilitating an actual discussion on what is a complex regulatory issues, and the real practical challenges it poses for the stakeholders, this form of consultation simply led to the telecom companies and OTT services providers submitting contrasting extreme positions without much scope for engagement between two polar arguments.

A truly co-regulatory approach which also extends to rulemaking would involve collaborative processes which are far less adversarial in their design and facilitate joint problem solving through multiple face to face meetings. Such processes are also more likely to lead to better rule making by using the more specialised knowledge of the different stakeholders about technology, domain-specific issues, industry realities and low cost solutions. Further, by bringing the regulated parties into the rulemaking process, the ownership of the policy is shared, often leading to better compliance.

Within the domain of data protection law itself, we have a few existing models of robust co-regulation which entail the involvement of stakeholders not just at the level of enforcement but also at the level of drafting. The oldest and most developed form of this kind of privacy governance can be seen in the study of the Dutch privacy statute. It involved a central privacy legislations with broad principles, sectoral industry-drafted “codes of conduct”, government evaluations and certifications of these codes; and a legal safe harbour for those companies that follow the approved code for their sector. Over a period of 20 years, the Dutch experience saw the approval of 20 sectoral codes across a variety of sectors such as banking, insurance, pharmaceuticals, recruitment and medical research.

Other examples of policies espousing this approach include two documents from the US – first, a draft bill titled ‘Commercial Privacy Bill of Rights Act of 2011’ introduced before the Congress by John McCain and John Kerry, and second, a White House Paper titled ‘Consumer Data Privacy In A Networked World: A Framework For Protecting Privacy And Promoting Innovation In The Global Digital Economy’ released by the Obama administration. Neither of these documents have so far led to a concrete policy. Both of these policies envisioned broadly worded privacy requirements to be passed by the Congress, followed by the detailed rules to be drafted. The Obama administration white paper is more inclusive in mandating that ‘multi-stakeholder groups’ draft the codes that include not only industry representatives but also privacy advocates, consumer groups, crime victims, academics, international partners, federal and state civil and criminal law enforcement representatives and other relevant groups.

The principles that emerge out this consultative process are likely to guide the data protection law in India for a long time to come. Among democratic regimes with a significant data-driven market, India is extremely late in arriving at a data protection law. The least that it can do at this point is to learn from the international experience and scholarship which has shown that merits of a co-regulatory approach which entails active participation of the government, industry, civil society and academia in the drafting and enforcement of a robust data protection law.

For more details visit http://editors.cis-india.org/internet-governance/blog/the-wire-amber-sinha-december-1-2017-inclusive-co-regulatory-approach-possible-building-indias-data-protection-regime

Counter Comments on TRAI's Consultation Paper on Privacy, Security and Ownership of Data in Telecom Sector

amber — 2017-11-23T14:29:06Z

The Centre for Internet & Society (CIS) has commented on the Consultation Paper on Privacy, Security and Ownership of Data in Telecom Sector published by the Telecom Regulatory Authority of India on August 9, 2017.

The submission is divided in three main parts. The first part 'Preliminary' introduces the document. The second part 'About CIS' is an overview of the organization. The third part contains the 'Counter Comments' on the Consultation Paper taking into account the submission made by other stakeholders.

Download the full submission here

For more details visit http://editors.cis-india.org/internet-governance/blog/counter-comments-on-trais-consultation-paper-on-privacy-security-and-ownership-of-data-in-telecom-sector

The Fundamental Right to Privacy: Part III SCOPE

amber — 2017-10-02T04:14:00Z

This is the third paper in a series on the recent judgment on the right to privacy by the nine judge constitution bench of the Supreme Court in a reference matter in Puttaswamy and others v. Union of India. The first two papers on the Sources and Structure of the constitutional right to privacy are available here, and here, respectively. While the previous papers dealt with the sources in the Constitution and the interpretive tools used by the bench to locate the right to privacy as a constitutional right, as well as the structure of the right with its various dimensions, this paper will look at the judgment for guidance on principles to determine what the scope of the right of privacy may be.

For more details visit http://editors.cis-india.org/internet-governance/the200b-200bfundamental200b-200bright200b-200bto200b-200bprivacy-200b-200bpart200b-200biii-scope

The Fundamental Right to Privacy: An Analysis

amber — 2017-10-04T11:19:46Z

Last month’s judgment by the nine judge referral bench was an emphatic endorsement of the the constitutional right to privacy. In the course of a 547 page judgment, the bench affirmed the fundamental nature of the right to privacy reading it into the values of dignity and liberty. In the course of a few short papers, we will dissect the various aspects of the right to privacy as put forth by the nine judge constitutional bench in the Puttaswamy matter. The papers will focus on the sources, structure, scope, breadth, and future of privacy. Here are the first three papers, authored by Amber Sinha and edited by Elonnai Hickok.

The Fundamental Right to Privacy - Part I: Sources

Much of the debate and discussion in the hearings before the constitutional bench was regarding where in the Constitution a right to privacy may be located. In this paper, we analyse the different provisions and tools of interpretations use by the bench to read a right to privacy in Part III of the Constitution.

Download: PDF

The Fundamental Right to Privacy - Part II: Structure

In the previous paper, we delved into the sources in the Constitution and the interpretive tools used to locate the right to privacy as a constitutional right. This paper follows it up with an analysis of the structure of the right to privacy as articulated by the bench. We will look at the various facets of privacy which form a part of the fundamental right, the basis for such dimensions and what their implications may be.

Download: PDF

The Fundamental Right to Privacy - Part III: Scope

While the previous papers dealt with the sources in the Constitution and the interpretive tools used by the bench to locate the right to privacy as a constitutional right, as well as the structure of the right with its various dimensions, this paper will look at the judgment for guidance on principles to determine what the scope of the right of privacy may be.

Download: PDF

For more details visit http://editors.cis-india.org/internet-governance/blog/the-fundamental-right-to-privacy-an-analysis

Rethinking National Privacy Principles: Evaluating Principles for India's Proposed Data Protection Law

amber — 2017-09-11T02:22:01Z

This report is intended to be the first part in a series of white papers that CIS will publish which seeks to contribute to the discussions around the enactment of a privacy legislation in India. In subsequent pieces we will focus on subjects such as regulatory framework to implement, supervise and enforce privacy principles, and principles to regulate surveillance in India under a privacy law.

Edited by Elonnai Hickok and Vipul Kharbanda

This analysis intends to build on the substantial work done in the formulation of the National Privacy Principles by the Committee of Experts led by Justice AP Shah.1 This brief, hopes to evaluate the National Privacy Principles and the assertion by the Committee that right to privacy be considered a fundamental right under the Indian Constitution. The national privacy principles have been revisited in light of technological developments such as big data, Internet of Things, algorithmic decision making and artificial intelligence which are increasingly playing a greater role in the collection and processing of personal data of individuals, its analysis and decisions taken on the basis of such analysis. The solutions and principles articulated in this report are intended to provide starting points for a meaningful and nuanced discussion on how we need to rethink the privacy principles that should inform the data protection law in India.

Click to read the full blog post

For more details visit http://editors.cis-india.org/internet-governance/blog/rethinking-national-privacy-principles

CIS Statement on Right to Privacy Judgment

amber — 2017-08-31T18:13:14Z

In an emphatic endorsement of the right to privacy, a nine judge constitutional bench unanimously upheld a fundamental right to privacy. The events leading to this bench began during the hearings in the ongoing Aadhaar case, when in August 2015, Mukul Rohatgi, the then Attorney General stated that there is no constitutionally guaranteed right to privacy.

reliance was on two Supreme Court judgments in MP Sharma v Satish Chandra (1954) and Kharak Singh v State of Uttar Pradesh (1962): both cases, decided by eight- and six-judge benches respectively, denied the existence of a constitutional right to privacy. As the subsequent judgments which upheld the right to privacy were by smaller benches, he claimed that MP Sharma and Kharak Singh still prevailed over them, until they were overruled by a larger bench. This landmark judgment was in response to a referral order to clear the confusion over the status of privacy as a right.

We, at the Centre for Internet and Society (CIS) welcome this judgement and applaud the depth and scope of the Supreme Court’s reasoning. CIS has been producing research on the different aspects of the right to privacy and its implications for the last seven years and had the privilege of serving on the Justice AP Shah Committee and contributing to the Report of the Group of Experts on Privacy.[1] We are honoured that some of our research has also been cited by the judgment.[2] Such judicial recognition is evidence of the impact sound research can have on policymaking.

In the course of a 547 page judgment, the bench affirmed the fundamental nature of the right to privacy reading it into the values of dignity and liberty. The judgment is instructive in its reference to scholarly works and jurisprudence not only in India but other legal systems such as USA, South Africa, EU and UK, while recognising a broad right to privacy with various dimensions across spatial, informational and decisional spheres. We note with special appreciation that women’s bodily integrity and citizens’ sexual orientation are among those aspects of privacy that were clearly recognised in the judgment. For researchers studying privacy and its importance, this judgment is of great value as it provides clear reasoning to reject oft-quoted arguments which are used to deny privacy’s significance. The judgement is also cognizant of the implications of the digital age and emphasise the need for a robust data protection framework.

The right to privacy has been read into into Article 21 (Right to life and liberty), and Part III (Chapter on Fundamental Rights) of the Constitution. This means that any limitation on the right in the form of reasonable restrictions must not only satisfy the tests evolved under Article 21, but where loss of privacy leads to infringement on other rights, such as chilling effects of surveillance on free speech, the tests for constitutionality under those provisions for also be satisfied by the limiting action. This provides a broad protection to citizens’ privacy which may not be easily restricted. We expect that this judgment will have far reaching impacts, not just with respect to the immediate Aadhaar case, but also to in a score of other matters such as protection of sexual choice by decriminalising Section 377 of the Indian Penal Code, oversight of statutory search and seizure provisions such as Section 132 of the Income Tax Act, personal data collection and processing practices by both state and private actors and mass surveillance programmes in the interest of national security.

As this judgment comes in response to a referral order, the judges were not dealing with any questions of fact to ground the legal principles in. Subsequent judgments which deal with privacy will apply these principles and further evolve the contours of this right on a case-by-case basis. For now, we welcome this judgment and look forward to its consistent application in the future.

[1]. http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf

[2]. CIS was quoted in the judgement on footnote 46, page 33 and 34: http://supremecourtofindia.nic.in/pdf/LU/ALL%20WP(C)%20No.494%20of%202012%20Right%20to%20Privacy.pdf The quote is " Illustratively, the Centre for Internet and Society has two interesting articles tracing the origin of privacy within Classical Hindu Law and Islamic Law. See Ashna Ashesh and Bhairav Acharya ,“Locating Constructs of Privacy within Classical Hindu Law”, The Centre for Internet and Society, available at https://cis-india.org/internet-governance/blog/loading-constructs-of-privacy-within-classical-hindu-law. See also Vidushi Marda and Bhairav Acharya, “Identifying Aspects of Privacy in Islamic Law”, The Centre for Internet and Society, available at https://cis-india.org/internet-governance/blog/identifying-aspects-of-privacy-in-islamic-law " Further, research commissioned by CIS cited in the judgment includes a reference in page 201 footnote 319, "Bhairav Acharya, “The Four Parts of Privacy in India”, Economic & Political Weekly (2015), Vol. 50 Issue 22, at page 32."

For more details visit http://editors.cis-india.org/internet-governance/blog/cis-statement-on-right-to-privacy-judgment

Privacy is not a unidimensional concept

amber — 2017-08-07T08:02:20Z

Right to privacy is important not only for our negotiations with the information age but also to counter the transgressions of a welfare state. A robust right to privacy is essential for all citizens in India to defend their individual autonomy in the face of invasive state actions purportedly for the public good. The ruling of this nine-judge bench will have far-reaching impact on the extent and scope of rights available to us all.

This article, written by Amber Sinha was published in the Economic Times on July 23, 2017.

In a disappointing case of judicial evasion by the apex court, it has taken over 600 days since a reference order passed in August 11, 2015, for this bench to be constituted. Over two days of arguments, the counsels for the petitioners have presented before the court why the right to privacy, despite not finding a mention in the Constitution of India, is a fundamental right essential to a person’s dignity and liberty, and must be read into not one but multiple articles of the Constitution. The government will make its arguments in the coming week.

One must wonder why we are debating the contours of the right to privacy, which 40 years of jurisprudence had lulled us into believing we already had. The answer to that can be found in a series of hearings in the Aadhaar case that began in 2012. Justice KS Puttaswamy, a former Karnataka High Court judge, filed a petition before the Supreme Court, questioning the validity of the Aadhaar project due its lack of legislative basis (since then the Aadhaar Act was passed in 2016) and its transgressions on our fundamental rights. Over time, a number of other petitions also made their way to the apex court, challenging different aspects of the Aadhaar project. Since then, five different interim orders by the Supreme Court have stated that no person should suffer because they do not have an Aadhaar number. Aadhaar, according to the court, could not be made mandatory to avail benefits and services from government schemes. Further, the court has limited the use of Aadhaar to specific schemes: LPG, PDS, MGNREGA, National Social Assistance Programme, the Pradhan Mantri Jan Dhan Yojna and EPFO.

The real spanner in the works in the progress of this case was the stand taken by Mukul Rohatgi, then attorney general of India who, in a hearing before the court in July 2015, stated that there is no constitutionally guaranteed right to privacy. His reliance was on two Supreme Court judgments in MP Sharma v Satish Chandra (1954) and Kharak Singh v State of Uttar Pradesh (1962): both cases, decided by eight- and six-judge benches respectively, denied the existence of a constitutional right to privacy. As the subsequent judgments which upheld the right to privacy were by smaller benches, Rohatgi claimed that MP Sharma and Kharak Singh still prevailed over them, until they were overruled by a larger bench.

The reference to a larger bench has since delayed the entire matter, even as a number of government schemes have made Aadhaar mandatory. This reading of privacy as a unidimensional concept by the courts is, with due respect, erroneous. Privacy, as a concept, includes within its scope, spatial, familial, informational and decisional aspects. We all have a legitimate expectation of privacy in our private spaces, such as our homes, and in our personal relationships. Similarly, we must be able to exercise some control over how personal data, like our financial information, are disseminated. Most importantly, privacy gives us the space to make autonomous choices and decisions without external interference. All these dimensions of privacy must stand as distinct rights. In MP Sharma, the court rejected a certain aspect of the right of privacy by refusing to acknowledge a right against search and seizure. This, in no way prevented the court, even in the form of a smaller bench, from ruling on any other aspects of privacy, including those that are relevant to the Aadhaar case.

The limited referral to this bench means that the court will have to rule on the status of privacy and its possible limitations in isolation, without even going into the details of the Aadhaar case (based on the nature of protection that this bench accords to privacy, the petitioners and defendants in the Aadhaar case will have to argue afresh on whether the project does impede on this most fundamental right). There are no facts of the case to ground the legal principles in, and defining the contours of a right can be a difficult exercise. The court must be wary of how any limits they put on the right may be used in future. Equally, it is important to articulate that any limitations on the right to privacy due to competing interests such as national security and public interest must be imposed only when necessary and always be proportionate.

It will not be enough for the court to merely state that we have a constitutional right to privacy. They would be well advised to cut through the muddle of existing privacy jurisprudence, and unequivocally establish the various facets of the right. Without that, we may not be able to withstand the modern dangers of surveillance, denial of bodily integrity and self-determination through forcible collection of information. The nine judges, in their collective wisdom, must not only ensure that we have a right to privacy, but also clearly articulate a robust reading of this right capable of withstanding the growing interferences with our autonomy.

For more details visit http://editors.cis-india.org/internet-governance/privacy-is-not-a-unidimensional-concept

Centre for Internet and Society

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Cross-posted from Privacy International blog.

Credits: Flag illustrations, when not created by the authors, are from Ibrandify / Freepik.

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