Right to privacy

Right to privacy means the right to be let alone. Right to privacy is a fundamental right under the provisions of the Constitution of India. While the right has not been expressly provided, Article 21[1] of the Constitution protects an individual’s privacy. In Kharak Singh v State of Uttar Pradesh[2], the right to privacy was held to be a fundamental right.

In R Rajagopal v State of Tamil Nadu[3], the Apex Court while reconciling the freedom of speech[4] and the right to privacy, observed that the right to privacy has acquired constitutional status. In State of Maharashtra v Madhukar Narayan Mardikar[5], the court upheld the right to privacy of a prostitute. Further in People’s Union for Civil Liberties v Union of India[6], telephone tapping was considered to be a violation of individual’s privacy.

Violation of privacy means an unwanted interference in an individual’s right to the enjoyment of his seclusion, disclosure of his private facts or disclosing information that brings him in negative light.

However, the right to privacy is not absolute but is subject to certain restrictions in public interest[7] especially in respect to national security. The restrictions imposed on the right to privacy are same as those on the freedom of speech and expression[8]. In Mr X v Hospital Z[9], the court observed that the right to privacy can be infringed on the ground of public morality or public interest.

International provisions regarding the right to privacy: Article 12[10] of the Universal Declaration of Human Rights, Article 17[11] of the International Convention on Civil and Political Rights and Article 8 of the European Convention on Human Rights[12] also guarantee an individual’s right to privacy. In Roe v Wade[13], the US Supreme Court upheld the right to privacy subject to certain restrictions on public policy.

Privacy issues in cyber space

Internet is not only a source of information and networking but also a major mode of conducting business. E-commerce and e-governance are slowly forming the backbone of the economy and the community. While online transactions have brought convenience to consumers on the other hand they have also provided platform to companies for gathering information about individual’s preferences.

An individual’s privacy can be infringed by a number of ways:

(1)    Hacking[14]

(2)    Phishing

(3)    E-surveillance[15]

(4)    Emails and websites providing online history

(5)    Voluntarily tendered information

(6)    Loyalty cards and credit cards

(7)    Online shopping

Section 72 of the Information Technology Act, 2000: Penalty for breach of confidentiality and privacy.- Save as otherwise provided in this Act or any other law for the time being in force, any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made thereunder, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

The issues of privacy in cyber space are of major concern but at the same time the right to privacy can be curtailed on public or moral issues, for ensuring national security. Maintaining a proper balance between the individual’s interests and national interests is essential in cyber space.

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[1] No person shall be deprived of his life or personal liberty except according to procedure established by law

[2]AIR 1963 SC 1295

[3] AIR 1995 SC 264

[4] Article 19(1)(a)

[5] AIR 1991 SC 207

[6] AIR 1997 SC 568

[7] Govind v State of Madhya Pradesh AIR 1975 SC 1378- the court upheld the order of surveillance stating that the right emanates from the freedom of speech and expression and must be subject to same restrictions.

[8] Article 19(2)- Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence

[9] AIR 1999 SC 495

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

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

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

 

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

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

[13] Jane Roe v Henry Wade, 410 US 113, the right to privacy emanates from the first, fourth and fifth amendment.

[14] Section 66(1) Information Technology Act, 2000: Whoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means, commits hacking.

[15] Section 69 of the Information Technology Act, 2000 provides that: If the Controller is satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, the security of the State, riendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence, for reasons to be recorded in writing, by order, direct any agency of the Government to intercept any information transmitted through any computer resource.