Centre for Internet and Society

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

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

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

The Appropriate Use of Digital Identity

amber — 2019-08-08T10:24:40Z

As governments across the globe implement new, foundational, digital identification systems (“Digital ID”), or modernize existing ID programs, there is dire need for greater research and discussion about appropriate uses of Digital ID systems. This significant momentum for creating Digital ID in several parts of the world has been accompanied with concerns about the privacy and exclusion harms of a state issued Digital ID system, resulting in campaigns and litigations in countries such as UK, India, Kenya, and Jamaica. Given the very large range of considerations required to evaluate Digital ID projects, it is necessary to think of evaluation frameworks that can be used for this purpose.

At RightsCon 2019 in Tunis, we presented working drafts on appropriate use of Digital ID by the partner organisations of this three-region research alliance - ITS from Brazil, CIPIT from Kenya, and CIS from India.

In the draft by CIS, we propose a set of principles against which Digital ID may be evaluated. We hope that these draft principles can evolve into a set of best practices that can be used by policymakers when they create and implement Digital ID systems, provide guidance to civil society examinations of Digital ID and highlight questions for further research on the subject. We have drawn from approaches used in documents such as the necessary and proportionate principles, the OECD privacy guidelines and scholarship on harms based approach.

Read and comment on CIS’s Draft framework here.

Download Working drafts by CIPIT, CIS, and ITS here.

For more details visit http://editors.cis-india.org/internet-governance/blog/the-appropriate-use-of-digital-identity

Technical Appendix to 'Use of sentiment analysis by law enforcement: An analysis of scrutability for juridical purposes'

amber — 2020-05-03T12:43:05Z

This file contains the technical appendix to the paper titled 'Use of sentiment analysis by law enforcement: An analysis of scrutability for juridical purposes' by Dr. Hans Varghese Mathews and Amber Sinha

For more details visit http://editors.cis-india.org/internet-governance/technical-appendix-to-use-of-sentiment-analysis-by-law-enforcement-an-analysis-of-scrutability-for-juridical-purposes

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

amber — 2018-02-05T13:39:00Z

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.

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

Social Media Monitoring

amber — 2017-01-16T14:23:13Z

We see a trend of social media and communication monitoring and surveillance initiatives in India which have the potential to create a chilling effect on free speech online and raises question about the privacy of individuals. In this paper, Amber Sinha looks at social media monitoring as a tool for surveillance, the current state of social media surveillance in India, and evaluate how the existing regulatory framework in India may deal with such practices in future.

Social Media Monitoring: Download (PDF)

Introduction

In 2014, the Government of India launched the much lauded and popular citizen outreach website called MyGov.in. A press release by the government announced that they had roped in global consulting firm PwC to assist in the data mining exercise to process and filter key points emerging from debates on Mygov.in. While this was a welcome move, the release also mentioned that the government intended to monitor social media sites in order to gauge popular opinion. Further, earlier this year, the government set up National Media Analytics Centre (NMAC) to monitor blogs, media channels, news outlets and social media platforms. The tracking software used by NMAC will generate tags to classify post and comments on social media into negative, positive and neutral categories, paying special attention to “belligerent” comments, and also look at the past patterns of posts. A project called NETRA has already been reported in the media a few years back which would intercept and analyse internet traffic using pre-defined filters. Alongside, we see other initiatives which intend to use social media data for predictive policing purposes such as CCTNS and Social Media Labs.

Thus, we see a trend of social media and communication monitoring and surveillance initiatives announced by the government which have the potential to create a chilling effect on free speech online and raises question about the privacy of individuals. Various commentators have raised concerns about the legal validity of such programmes and whether they were in violation of the fundamental rights to privacy and free expression, and the existing surveillance laws in India. The lack of legislation governing these programmes often translates into an absence of transparency and due procedure. Further, a lot of personal communication now exists in the public domain which renders traditional principles which govern interception and monitoring of personal communications futile. In the last few years, the blogosphere and social media websites in India have also changed and become platforms for more dissemination of political content, often also accompanied by significant vitriol, ‘trolling’ and abuse. Thus, we see greater policing of public or semi-public spaces online. In this paper, we look at social media monitoring as a tool for surveillance, the current state of social media surveillance in India and evaluate how the existing regulatory framework in India may deal with such practices in future.

For more details visit http://editors.cis-india.org/internet-governance/blog/social-media-monitoring

Should an Inability to Precisely Define Privacy Render It Untenable as a Right?

amber — 2017-08-04T01:49:56Z

The judges may still be able to articulate the manner in which limits for a right to privacy may be arrived at, without explicitly specifying them.

The article was published in the Wire on August 2, 2017.

Ludwig Wittgenstein wrote in his book, Philosophical Investigations, that things which we expect to be connected by one essential common feature, may be connected by a series of overlapping similarities, where no one feature is common. Instead of having one definition that works as a grand unification theory, concepts often draw from a common pool of characteristics. Drawing from overlapping characteristics that exist between family members, Wittgenstein uses the phrase ‘family resemblances’ to refer to such concepts.

In his book, Understanding Privacy, Daniel Solove makes a case for privacy being a family resemblance concept. Responding to the discontent in conceptualising privacy, Solove attempted to ground privacy not in a tightly defined idea, but around a web of diverse yet connected ideas. Some of the diverse human experiences that we instinctively associate with privacy are bodily privacy, relationships and family, home and private spaces, sexual identity, personal communications, ability to make decisions without intrusions and sharing of personal data. While these are widely diverse concepts, intrusions upon or interferences with these experiences are all understood as infringements of our privacy.

Other scholars too have recognised this dynamic, evolving and difficult to pinpoint nature of privacy. Robert Post described privacy as a concept “engorged with various and distinct meanings.” Helen Nissenbaum advocates a dynamic idea of privacy to be understood in terms of contextual norms.

The ongoing arguments in the Supreme Court on the existence of a constitutional right to privacy can also be viewed in the context of the idea of privacy as a family resemblance concept. In their arguments, the counsels for the petitioners have tried to make a case for privacy as a multi-dimensional fundamental right. Senior advocate Gopal Subramanium argued before the court that privacy inheres in the concept of liberty and dignity under Constitution of India, and is presupposed by various other rights such as freedom of speech, good conscience, and freedom to practice religion. He further goes on say that there are four aspects to privacy – spatial, decisional, informational and the right to develop personality. Shyam Divan, also arguing for the petitioners, further added that privacy includes the right to be left alone, freedom of thought, freedom to dissent, bodily integrity and informational self-determination.

When the chief justice brought up the need to define the extent of the right to privacy, the counsels raised concerns about the right being defined too specifically. This reluctance was borne out of the recognition that by its very nature, the right to privacy is a cluster of rights, with multiple dimensions manifesting themselves in different ways depending on the context. Both advocates, Subramaniam and Arvind Datar, argued that court must not engage in an exercise to definitively catalog all the different aspects of the right, foreclosing the future development of the law on point. This reluctance was also a result of the fact that the court has isolated the question of the existence of the right to privacy and how it may apply in the case of the Aadhaar project. Usually judges are able to ground legal principles in the relevant facts of the case while developing precedents. The referral to this bench is only on the limited question of the existence of a constitutional right to privacy. Therefore, any limits that are articulated by the court on the right exist without the benefit of a context.

On the other hand, the Attorney General (AG) argued that this very aspect of privacy was a rationale for not declaring it a fundamental right. At various points during the arguments, he indicated that the ambiguous and vague nature of the concept of privacy made it unsuitable as a fundamental right. Similarly, Tushar Mehta, arguing for Unique Identification Authority of India, also sought to deny privacy’s existence as a fundamental right as it is too subjective and vague.

The above argument assumes that the inability to precisely define privacy renders its untenable as a right. The key question is whether this lack of a common denominator makes privacy too vague a right, liable to expansive misinterpretations. Conceptions that do not have fixed and sharp boundaries, are not boundless. What it means is that the boundaries can often be fuzzy and in a state of constant evolution, but the limits and boundaries always exist.

At one point during the hearings, Justice Rohinton Nariman wanted the counsels to work on the parameters of challenge for state action with respect to privacy. As mentioned earlier, in the absence of facts to work with, such an exercise is fraught with risks. However, the judges may still be able to articulate the manner in which such limits may be arrived at, without specifying them. Justice Nariman himself later agrees that the judicial examination must proceed on a case by case basis, taking into account not only the tests under Article 14,19 and 21 under which petitioners have tried to locate privacy, but also under any other concurrent rights which may be infringed.

The AG also argued that the infringement of privacy in itself does not amount to a violation of the rights under Article 21, rather in some cases the transgressions on privacy may lead to an infringement of a person’s right to liberty and only in such cases should the fundamental rights be invoked. Thus, the argument made was that there was no need to declare privacy as a fundamental right but only to acknowledge that limiting privacy may sometimes lead to violations of the already existing rights. This argument may have been more cogent had he identified specific dimensions of privacy which, according to him, do not qualify as fundamental rights. However, this might have meant conceding that other dimensions of privacy, in fact do amount to fundamental rights.

It must be remembered that the problem of changing or multiple meanings is not limited to privacy. As the bench noted, drawing comparisons to the concepts of ‘liberty’ and ‘dignity’, these are constitutionally recognised values which equally suffer from a multitude of meanings based on context. The government’s position here is in line with critiques of privacy that Solove seeks to bust in his book. The idea of privacy evolves with time and people. And people, whether from a developed or developing polity, have an instinctive appreciation for it. The absence of a precise definition does not necessarily do great disservice to a concept, especially one that is fundamental to our freedoms.

For more details visit http://editors.cis-india.org/internet-governance/blog/the-wire-amber-sinha-august-2-2017-should-an-inability-to-precisely-define-privacy-render-it-untenable-as-a-right

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

Right to be Forgotten: A Tale of Two Judgements

amber — 2017-04-07T02:27:03Z

In the last few months, there have been contrasting judgments from two Indian high courts, Karnataka and Gujarat, on matters relating to the right to be forgotten. The two high courts heard pleas on issues to do the right of individuals to have either personal information redacted from the text of judgments available online or removal of such judgment from publically available sources.

While one High Court (Karnataka) ordered the removal of personal details from the judgment,^[1] the other (Gujarat) dismissed the plea^[2]. In this post, we try to understand the global jurisprudence on the right to be forgotten, and how the contrasting judgments in India may be located within it.

Background

The ‘right to be forgotten’ has gained prominence since a matter was referred to the Court of Justice of European Union (CJEU) in 2014 by a Spanish court.^[3] In this case, Mario Costeja González had disputed the Google search of his name continuing to show results leading to an auction notice of his reposed home. The fact that Google continued to make available in its search results, an event in his past, which had long been resolved, was claimed by González as a breach of his privacy. He filed a complaint with the Spanish Data Protection Agency (AEPD in its Spanish acronym), to have the online newspaper reports about him as well as related search results appearing on Google deleted or altered. While AEPD did not agree to his demand to have newspaper reports altered, it ordered Google Spain and Google, Inc. to remove the links in question from their search results. The case was brought in appeal before the Spanish High Court, which referred the matter to CJEU. In a judgement having far reaching implications, CJEU held that where the information is ‘inaccurate, inadequate, irrelevant or excessive,’ individuals have the right to ask search engines to remove links with personal information about them. The court also ruled that even if the physical servers of the search engine provider are located outside the jurisdiction of the relevant Member State of EU, these rules would apply if they have branch office or subsidiary in the Member State.

The ‘right to be forgotten’ is a misnomer, and essentially when we speak of it in the context of the proposed laws in EU, we refer to the rights of individuals to seek erasure of certain data that concerns them. The basis of what has now evolved into this right is contained in the 1995 EU Data Protection Directive, with Article 12 of the Directive allowing a person to seek deletion of personal data once it is no longer required.

Critical to our understanding of the rationale for how the ‘right to be forgotten’ is being framed in the EU, is an appreciation of how European laws perceive privacy of individuals. Unlike the United States (US), where privacy may be seen as a corollary of personal liberty protecting against unreasonable state intrusions, European laws view privacy as an aspect of personal dignity, and are more concerned with protection from third parties, particularly the media. The most important way in which this manifests itself is in where the burden to protect privacy rights lie. In Europe, privacy policy often dictates intervention from the state, whereas in the US, in many cases it is up to the individuals to protect their privacy.^[4]

Since the advent of the Internet, both the nature and quantity of information existing about individuals has changed dramatically. This personal information is no longer limited to newspaper reports and official or government records either. Our use of social media, micro-discussions on Twitter, photographs and videos uploaded by us or others tagging us, every page or event we like, favourite or share—all contribute to our digital footprint. Add to this the information created not by us but about us by both public and private bodies storing data about individuals in databases, our digital shadows begin to far exceed the data we create ourselves. It is abundantly clear that we exist in a world of Big Data, which relies on algorithms tracking repeated behaviour by our digital selves. It is in this context that a mechanism which enables the purging of some of this digital shadow makes sense.

Further, it is not only the nature and quantity of information that has changed, but also the means through which this information can be accessed. In the pre-internet era, access to records was often made difficult by procedural hurdles. Permissions or valid justifications were required to access certain kinds of data. Even for the information available in the public domain, often the process of gaining access were far too cumbersome. Now digital information not only continues to exist indefinitely, but can also be easily accessed readily through search engines. It is in this context that in a 2007 paper, Viktor Mayer-Schöenberger pioneered the idea of memory and forgetting for the digital age.^[5] He proposed that all forms of personal data should have an additional meta data of expiration date to switch the default from information existing endlessly to having a temporal limit after which it is deleted. While this may be a radical suggestion, we have since seen proposals to allow individuals some control over information about them.

In 2016, the EU released the final version of the General Data Protection Regulation. The regulation provides for a right to erasure under Article 17, which would enable a data-subject to seek deletion of data.^[6] Notably, except in the heading of the provision, Article 17 makes no reference to the word ‘forgetting.’ Rather the right made available in this regulation is in the form of making possible ‘erasure’ and ‘abstention from further dissemination.’ This is significant because what the proposed regulations provide for is not an overarching framework to enable or allow ‘forgetting’ but a limited right which may be used to delete certain data or search results. Providing a true right to be forgotten would pose issues of interpretation as to what ‘forgetting’ might mean in different contexts and the extent of measures that data controllers would have to employ to ensure it. The proposed regulation attempts to provide a specific remedy which can be exercised in the defined circumstances without having to engage with the question of ‘forgetting’.

The primary arguments made against the ‘right to be forgotten’ have come from its conflict with the right to freedom of speech. Jonathan Zittrain has argued against the rationale that the right to be forgotten merely alters results on search engines without deleting the actual source, thus, not curtailing the freedom of expression.^[7] He has compared this altering of search results to letting a book remain in the library but making the catalogue unavailable. According to Zittrain, a better approach would be to allow data subjects to provide their side of the story and more context to the information about them, rather than allowing any kind of erasure. Unlike in the US, the European approach is to balance free speech against other concerns. So while one of the exceptions in sub-clause (3) of Article 17 provides that information may not be deleted where it is necessary to exercise the right to free speech, free speech does not completely trump privacy as the value that must be protected. On the other hand, US constitutional law would tend to give more credence to the First Amendment rights and allow them to be compromised in very limited circumstances. As per the position of the US Supreme Court in Florida Star v. B.J.F., lawfully obtained information may be restricted from publication only in cases involving a ‘state interest of the highest order’. This position would allow any potential right to be forgotten to be exercised in the most limited of circumstances and privacy and reputational harm would not satisfy the standard. For these reasons the rights to be forgotten as it exists in Article 17 may be unworkable in the US.

Issues in application

Significant technical challenges remain in the effective and consistent application of Article 17 of the EU Directive. One key issue is concerned with how ‘personal data’ is defined and understood, and how its interpretation will impact this right in different contexts. According to Article 17 of the EU directive, the term ‘personal data’ includes any information relating to an individual. Some ambiguity remains about whether information which may not uniquely identify a person, but as a part of small group, could be considered within the scope of personal data. This becomes relevant, for instance, where one seeks the erasure of information which, without referring to an individual, points fingers towards a family. At the same time, often the piece of information sought to be erased by a person may contain personal information about more than one individual. There is no clarity over whether a consensus of all the individuals concerned should be required, and if not, on what parameters should the wishes of one individual prevail over the others. Another important question, which is as yet unanswered, is whether the same standards for removal of content should apply to most individuals and those in public life.

The issue of what is personal data and can therefore be erased gets further complicated in cases of derived data about individuals used in statistics and other forms of aggregated content. While, it would be difficult to argue that the right to be forgotten needs to be extended to such forms of information, not erasing such derived content poses the risk of the primary information being inferred from it. In addition, Article 17(1)(a) provides for deletion in cases where the data is no longer necessary for the purposes for which they were collected or used. The standards for circumstances which satisfy this criteria are, as yet, unclear and may only be fully understood through a consistent application of this law.

Finally, once there are reasonable grounds to seek erasure of information, it is not clear how this erasure will be enforced practically. It may not be prudent to require that all copies of the impugned data are deleted such that they may not be recovered, to the extent technologically possible. A more reasonable solution might be to permit the data to continue to remain available in encrypted forms, much like certain records are sealed and subject to the strictest confidentiality obligations. In most cases, it may be sufficient to ensure that the records of the impugned data is removed from search results and database reports without actually tampering with information as it may exist. These are some of the challenges which the practical application of this right will face, and it is necessary to take them into account in enforcing the proposed regulations.

The two Indian judgments

In the first case, (before the Gujarat High Court), the petitioner entered a plea for “permanent restraint [on] free public exhibition of the judgment and order.” The judgment in question concerned proceeding against the petitioner for a number of offences, including culpable homicide amounting to murder. The petitioner was acquitted, both by the Sessions court and the High Court before which he was pleading. The petitioner’s primary contention was that despite the judgment being classified as ‘unreportable’, it was published by an online repository of judgments and was also indexed by Google search. The decision of the High Court to dismiss the petition, rest of the following factors: a) failure on the part of the petitioner to show any provisions in law which are attracted, or threat to the constitutional right to life and liberty, b) publication on a website does not amount to ‘reporting’, as reporting only refers to that by law reports.

While the second point of reasoning made by the courts is problematic in terms of the function of precedent served by the reported judgments, and the basis for reducing the scope of ‘reporting’ to only law reports, the first point is of direct relevance to our current discussion. The lack of available legal provisions points to the absence of data protection legislation in India. Had there been a privacy legislation which addressed the issues of how personal information may be dealt with, it is possible that it may have had instructive provisions to address situation like these. In the absence of such law, the only recourse that an individual has is to seek constitutional protection under one of the fundamental rights, most notably Article 21, which over the years, has emerged as the infinite repository of unenumerated rights. However, typically rights under Article 21 are of a vertical nature, i.e., available only against the state. Their application in cases where a private party is involved remains questionable, at best.

In contrast, in the second case, the Karnataka High Court ruled in favor of the petitioner. In this case, the petitioner’s daughter instituted both criminal and civil proceedings against a person. However, later they arrived at a compromise and one of the conditions was quashing all the proceedings which had been initiated. The petitioner had raised concerns about the appearance of his daughter’s name in the cause title and was easily searchable. The court, while making vague references to “trend in the Western countries where they follow this as a matter of rule “Right to be forgotten” in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned, held in the petitioner’s favor, and order that the name be redacted from the cause title and the body of the order before releasing to any service provider. The second judgment is all the more problematic for while it makes a reference to jurisprudence in other countries, yet it does not base it on the fundamental right to privacy, but to the idea of modesty and reputation of women, which has no clear legal basis on either Indian or comparative jurisprudence.

Conclusion

The above two cases demonstrate the problem of lack of a clear legal basis being employed by the judiciary in interpreting the right to be forgotten. Not only were no clear legal provisions in Indian law were taken refuge of while ruling on the existence of this right, the court also do not engage in any analysis of comparative jurisprudence such as the GDPR or the Costeja judgment. Such ad-hoc jurisprudence underlines the need for a data protection legislation, as in its absence, it is likely that divergent views are taken upon this issue, without a clear legal direction. It is likely that most matters concerning the right to erasure concern private parties as data controllers. In such cases, the existing jurisprudence on the right to privacy as interpreted under Article 21 may also be of limited value. Further, as has been pointed out above, the right to be forgotten needs to be a right qualified by conditions very clearly, and its conflict with the right to freedom of expression under Article 19. Therefore, it is imperative that a comprehensive data protection law addresses these issues.

^[1] Sri Vasunathan vs The Registrar, available at http://www.iltb.net/2017/02/karnataka-hc-on-the-right-to-be-forgotten/

^[2] Dharmraj Bhanushankar Dave v. State of Gujarat, available at https://drive.google.com/file/d/0BzXilfcxe7yueXFJWG5mZ1pKaTQ/view.

^[3] Google Spain et al v. Mario Costeja González, available at http://curia.europa.eu/juris/document/document_print.jsf?doclang=EN&docid=152065.

^[4] http://www.europarl.europa.eu/RegData/etudes/STUD/2015/536459/IPOL_STU(2015)536459_EN.pdf

^[5] Mayer-Schoenberger, Viktor, Useful Void: The Art of Forgetting in the Age of Ubiquitous Computing (April 2007). KSG Working Paper No. RWP07-022. Available at SSRN: https://ssrn.com/abstract=976541 or http://dx.doi.org/10.2139/ssrn.976541.

^[6] Article 17 (1) states: The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies:

(a) the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;

(b) the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing;

(c) the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2);

(d) the personal data have been unlawfully processed;

(e) the personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject;

(f) the personal data have been collected in relation to the offer of information society services referred to in Article 8(1).

^[7] Zittrain, Jonathan, “Don’t Force Google to ‘Forget’”, The New York Times, May 14, 2014. Available at https://www.nytimes.com/2014/05/15/opinion/dont-force-google-to-forget.html.

For more details visit http://editors.cis-india.org/internet-governance/blog/right-to-be-forgotten-a-tale-of-two-judgments

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

Regulating Sexist Online Harassment: A Model of Online Harassment as a Form of Censorship

amber — 2021-05-31T09:39:14Z

For more details visit http://editors.cis-india.org/internet-governance/files/it-for-change-february-2021-amber-sinha-regulating-sexist-online-harassment.pdf

Regulating Sexist Online Harassment: A Model of Online Harassment as a Form of Censorship

amber — 2021-03-11T04:14:28Z

Amber Sinha wrote a paper on regulating sexist online harassment, and how online harassment serves as a form of censorship, for the “Recognize, Resist, Remedy: Addressing Gender-Based Hate Speech in the Online Public Sphere” project, a collaborative project between IT for Change, India and InternetLab, Brazil.

Read the full paper here.

For more details visit http://editors.cis-india.org/internet-governance/blog/regulating-sexist-online-harassment-a-model-of-online-harassment-as-a-form-of-censorship

Regulating Sexist Online Harassment as a Form of Censorship

amber — 2021-05-31T09:56:31Z

This paper is part of a series under IT for Change’s project, Recognize, Resist, Remedy: Combating Sexist Hate Speech Online. The series, titled Rethinking Legal-Institutional Approaches to Sexist Hate Speech in India, aims to create a space for civil society actors to proactively engage in the remaking of online governance, bringing together inputs from legal scholars, practitioners, and activists. The papers reflect upon the issue of online sexism and misogyny, proposing recommendations for appropriate legal-institutional responses. The series is funded by EdelGive Foundation, India and International Development Research Centre, Canada.

Introduction

The proliferation of internet use was expected to facilitate greater online participation of women and other marginalised groups. However, over the past few years, as more and more people have come online, it is evident that social power in online spaces mirrors offline hierarchies. While identity and security thefts may be universal experiences, women and the LGBTQ+ community continue to face barriers to safety that men often do not, aside from structural barriers to access. Sexist harassment pervades the online experience of women, be it on dating sites, online forums, or social media.

In her book, Twitter and Tear Gas: The Power and Fragility of Networked Protest, Zeynep Tufekci argues that the nature and impact of censorship on social media are very different. Earlier, censorship was enacted by restricting speech. But now, it also works in the form of organised harassment campaigns, which use the qualities of viral outrage to impose a disproportionate cost on the very act of speaking out. Therefore, censorship plays out not merely in the form of the removal of speech but through disinformation and hate speech campaigns.

In most cases, this censorship of content does not necessarily meet the threshold of hate speech, and free speech advocates have traditionally argued for counter speech as the most effective response to such speech acts. However, the structural and organised nature of harassment and extreme speech often renders counter speech ineffective. This paper will explore the nature of online sexist hate and extreme speech as a mode of censorship. Online sexualised harassment takes various forms including doxxing, cyberbullying, stalking, identity theft, incitement to violence, etc. While there are some regulatory mechanisms – either in law, or in the form of community guidelines that address them, this paper argues for the need to evolve a composite framework that looks at the impact of such censorious acts on online speech and regulatory strategies to address them.

Click on to read the full text [PDF; 495 Kb]

For more details visit http://editors.cis-india.org/internet-governance/blog/it-for-change-amber-sinha-regulating-sexist-online-harassment

Centre for Internet and Society

Unpacking Data Protection Law: A Visual Representation

Cross-posted from Privacy International blog.

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

The​ ​Fundamental​ ​Right​ ​to​ ​Privacy:​ ​Part​ ​III SCOPE

The Fundamental Right to Privacy: An Analysis

The​ ​Fundamental​ ​Right​ ​to​ ​Privacy - Part​ ​I:​ ​Sources

Download: PDF

The​ ​Fundamental​ ​Right​ ​to​ ​Privacy - ​Part​ ​II:​ Structure

Download: PDF

The​ ​Fundamental​ ​Right​ ​to​ ​Privacy - Part​ ​III:​ Scope

Download: PDF

The Fundamental Right to Privacy - A Visual Guide

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

The Appropriate Use of Digital Identity

Technical Appendix to 'Use of sentiment analysis by law enforcement: An analysis of scrutability for juridical purposes'

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

Social Media Monitoring

Social Media Monitoring: Download (PDF)

Introduction

Should an Inability to Precisely Define Privacy Render It Untenable as a Right?

Should Aadhaar be mandatory?

Right to be Forgotten: A Tale of Two Judgements

Background

Issues in application

The two Indian judgments

Conclusion

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

Regulating Sexist Online Harassment: A Model of Online Harassment as a Form of Censorship

Regulating Sexist Online Harassment: A Model of Online Harassment as a Form of Censorship

Regulating Sexist Online Harassment as a Form of Censorship

The Fundamental Right to Privacy: Part III SCOPE

The Fundamental Right to Privacy - Part I: Sources

The Fundamental Right to Privacy - Part II: Structure

The Fundamental Right to Privacy - Part III: Scope