Open Access Research Article
Fundamental Right To Privacy In Digital Age: An Analysis Of The Impact Of Judgment Of Justice K. S. Puttaswamy In Cyber Crimes (By- Prerana Anand & Dr. Sirish Kulkarni)
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Fundamental
Right To Privacy In Digital Age: An Analysis Of The Impact Of Judgment Of Justice K. S. Puttaswamy In Cyber Crimes
Authored by- Prerana Anand And Dr.
Sirish Kulkarni
Abstract
In India, the judgment of Justice K S
Puttaswamy (Retd.) versus the Union of India
delivered on 24August 2017 by Supreme
Court has made it a historic day as it has crowned Indian Constitution with
another jewel namely: ‘Fundamental Right to Privacy’. This
ruling of Supreme Court is cherished by all the segments of society; however,
it has far-reaching impact in the context of emerging dimensions of cyberspace.
In the new millennium global economy has learnt to live in a new revolution and
the present society has experienced -The Entrance of World from Physical World
to Cyber World. The present universe is surrounded by the power of new mantra namely ‘Information Technology’.
By chanting this mantra the whole world has become a ‘global village’, the
economy has become ‘global-economy’ and
space has become a ‘cyberspace’. In cyberspace,
the modes of the commission of crimes
have been transformed absolutely from traditional to e- modes. On the one hand
side Internet has become part and parcel of our life, however, on the other hand, side, it has become aheaven for the manipulation as well as hacking
of sensitive personal information. This
article focuses on 1.) Emerging
cybercrimes like Cybersquatting,
Cyberstalking, Vishing, Cyber Defacement, Clicking, Downloading pictures
without consent and uploading on Internet, Cyber Trauma among young generation
and Cyber Blackmailing; and 2.) An impact of the
judgment of Hon’ble Supreme Court in Justice K S Puttaswamy (Retd.) on the
regulation of cybercrimes
Key Words: Emerging Cybercrimes,
Fundamental Right to Privacy, The Information Technology Act, 2000 (2008).
1. Introduction:
The ubiquity of information in the
lap of ‘Silicon Revolution’[1]
has tremendously brought the privacy of
individuals into the forefront of the Jurisprudential consciousness. In this
context, Policy makers, academics, legal practitioners and the government continue
to examine old centuries question regarding whether India has a Constitutional
Right to Privacy or not?In India, the judgment
of Justice K S Puttaswamy (Retd.) versus the Union
of India delivered on 24August
2017 by nine-judgeSupreme Court bench
under the chairmanship of Justice Shri Justice Jagdish Singh Khehar, has made it a historic day as it has crowned Indian
Constitution with another jewel namely: ‘Fundamental Right to Privacy’. This ruling of Supreme Court is
cherished by all the segments of society; however, it has far-reaching impact in the context of emerging dimensions of cyberspace.
In the new millennium global economy has learnt to live in a new revolution and
the present society has experienced -The Entrance of World from Physical World
to Cyber World. The present universe is surrounded by the power of new mantra namely ‘Information Technology’.
By chanting this mantra the whole world has become a ‘global village’, the
economy has become ‘global-economy’ and
space has become a ‘cyberspace’. In cyberspace,
the modes of the commission of crimes
have been transformed absolutely from traditional to e- modes. On the one hand
side Internet has become part and parcel of our life, however, on the other handside, it has become aheaven for tarnishing the veil of privacy on theInternet.
In thedigitalworld,Privacy
has long been a matter of significant concern in the minds of every human
being. As India grew, technological advances in the dissemination of knowledge
caused public demands for protection of privacy rights;especially
in cyberspace.[2]It is a
popular saying that:
“After a while, you learn that
privacy is something you can sell, but you cannot buy it back.”
Bob Dylan
Keeping in view various
interpretations of Article 21 by Indian Judiciary, it is observed that there
are variations in the privacy discussions and, the basic tension has always
been among the needs of the government the desire of the public to consume
information through mass media, and the right of an individual to his private
world.[3] In
today’s rapidly advancing technological age, it seems as though privacy has
increasingly fallen by the wayside. From private personal information stolen by
hackers to information lost through
careless transfer online, downloading apicture
of any person through software,
manipulate and upload in an objectionable manner, phishing, pharming and misuse
of sensitive personal information by government and private agencies have
become common trend.
2.
‘Right to be Left Alone’: Meaning of
Right to Privacy
Privacy is a concomitant of the right
of the individual to exercise absolute control over his or her personality. It
finds an origin in the notion that there are certain rights which are ‘natural
to’and ‘inherent’ in a human being. Natural rights are inalienable because they
are inseparable from the human personality. The human element in life is
impossible to conceive without the existence of natural rights. In 1690, John
Locke had in his Second Treatise of Government observed:[4]
“The lives, liberties and estates of
individuals are as a matter of fundamental natural law, a private preserve. The
idea of a private preserve was to create barriers from outside interference.”
In 1765, William Blackstone in his
Commentaries on the Laws of England spoke of a “natural liberty”. According to
William Blackstone:
“Absolute rights were vested in the individual
by the immutable laws of nature. These absolute rights were divided into rights
of personal security, personal liberty and property. The right of personal
security involved a legal and uninterrupted enjoyment of life, limbs, body,
health and reputation by an individual.”[5]
The term ‘inalienable right’ was
incorporated in the Declaration of the Rights of Man and of the Citizen (1789)
adopted by the French National Assembly in the following terms:
“For its drafters, to ignore, to
forget or to depreciate the rights of man are the sole causes of public
misfortune and government corruption. These rights are natural rights,
inalienable and sacred, the National Assembly recognizes and proclaims them-it
does not grant, concede or establish them-and their conservation is the reason
for all political communities; within these rights figures resistance to
oppression”.[6]
According to various philosophers,
Right to Privacy is one of the most esteemed natural right and Natural rights
are not bestowed by the State, however, bestowed by the Creator of this Cosmos.
They inhere in human beings because they are human. They exist equally in the
individual irrespective of class or strata, country, religion, sex, color,
gender or orientation.Distinguishing an inalienable[7]
right to an object from the object itself emphasizes the notion of
inalienability. All human beings retain their inalienable rights (whatever
their situation, whatever their acts, whatever their guilt or innocence). The
concept of natural inalienable rights secures autonomy to human beings. But the
autonomy is not absolute, for the simple reason that, the concept of
inalienable rights postulates that there are some rights which no human being
may alienate. While natural rights protect the right of the individual to
choose and preserve liberty, yet the autonomy of the individual is not absolute
or total.
Privacy, in its simplest sense, allows
each human being ‘To be left Alone’in a core which is inviolable. Yet the
autonomy of the individual is conditioned by the relationships with the rest of
society. Those relationships may and do
often pose questions to autonomy and free choice. The overarching presence of
state and non-state entities regulates aspects of social existence which bear
upon the freedom of the individual. Equally, new challenges have to be dealt
with in terms of a constitutional understanding of where liberty places an individual
in the context of a social order. The emergence of new challenges is
exemplified by this case, where the debate on privacy is being analyzed in the
context of free flow of information on Internet. In an age where information
technology governs virtually every aspect of our lives, the task before the
Court is to impart constitutional meaning to individual liberty in an
interconnected world.
When I revisit the question whether
our constitution protects privacy as an elemental principle, the Supreme Court
has expressed its sensitivity by declaring it a ‘Fundamental Right’.However,
the laws for regulating the Internet and dangers posed in a digital world are
not yet clear.[8]
3. Philosophical Overview On Privacy
In Physical World Vs. Cyber World:
John Stuart Mill in his essay, ‘On
Liberty’ (1859) gave expression to the need to preserve a zone within which the
liberty of the citizen would be free from the authority of the state. According
to Mill, “The only part of the conduct of any one, for which he is amenable to
society, is that which concerns others. In the part which merely concerns
himself, his independence is, of right, absolute. Over himself, over his own
body and mind, the individual is sovereign.”[9]
Austin in his Lectures on
Jurisprudence (1869)[10]
spoke of the distinction between the public and the private realms: jus publicum and jus privatum. He has explained the distinction between the public
and private realms in the context of
‘Dignity’ and with its limitations. If the reason for protecting privacy is the
dignity of the individual, the rationale for its existence does not cease
merely because the individual has to interact with others in the public arena.
The extent to which an individual expects privacy in a public street may be
different from that which she expects in the sanctity of the home. Yet if
dignity is the underlying feature, the basis of recognizing the right to
privacy is not denuded in public spaces. The extent of permissible state
regulation may, however, differ based on the legitimate concerns of
governmental authority.
James Madison, who was the architect
of the American Constitution, indicated the protection of privacy as an
incident of the inalienable property rights of human beings as follows:
“In the former sense, a man’s land,
or merchandize, or money is called his property. In the latter sense, a man has
property in his opinions and the free communication of them. He has an equal
property interest in the free use of his faculties and free choice of the
objects on which to employ
them...[11]
‘Privacy’ interests are as old as the
inception of Jurisprudence in India. As digital technology renders obsolete the
traditional jurisprudential theories on which the traditional laws are based,
the legal protections themselves become at worst. In 21st Century
the information revolutionis occurring so fast and affects so many areas of
privacy law that the old, adaptive process is failing to address digital
privacy problems.Privacy laws are entangled between traditionally developed
lawsand to meet the novice threats embodied in new technology.[12]
This "digital revolution"
has not left privacy untouched. Samuel Warren and Louis Brandeis, the first to
systematically describe a legal right to privacy, defined it as essentially a
right to protect one's "inviolate personality" from intrusion or
unwanted revelation in technological era. In essence, they argued for a
"right to be let alone."[13] Warren
and Brandeis revealed with a sense of perspicacity the impact of technology on
the right to be let alone:
“Recent inventions and business
methods call attention to the next step which must be taken for the protection
of the person, and for securing to the individual what Judge Cooley[14]
calls the right “to be let alone”. Instantaneous photographs and newspaper
enterprise have invaded the sacred precincts of private and domestic life; and
numerous mechanical devices threaten to make good the prediction that “what is
whispered in the closet shall be proclaimed from the house-tops.For years there
has been a feeling that the law must afford some remedy for the unauthorized
circulation of portraits of private persons… ”[15]
Jerry Berman and Deirdre Mulligan highlighted
three major digital developments that deeply affect privacy:
(1) The increase in data creation and
the resulting collection of vast amounts of personal data caused by the
recording of almost every modem interaction;
(2) The globalization of the data
market and the ability of anyone to collate and examine this data; and
(3) Lack of the types of control
mechanisms for digital data that existed to protect analog data.[16]
These three developments have changed
the ability to manipulate informationby digital technology. (1.) The amount of
digital information generated is breathtaking. Every interaction with the
Internet, every credit card transaction, every bank withdrawal, every magazine
subscription is recorded digitally and linked to specific individuals. In the
analog world, these transactions were either not recorded at allor recorded on
paper in a single location. (2.) All this information, once it is collected in
networked databases, can be sent instantly and cheaply around the globe. In
this newly-commoditized information market, buyers anywhere can collate and
manipulate the data for marketing, profiling, or more sinister purposes. (3.)
Individuals have little ability to control this collection or manipulation. Not
only does much of this happen far from the reach of regulators, but most people
are not even aware what information has been collected or how it is being used.
But while all of these changes affect information, not only informational
privacy has been affected. Autonomy, too, faces threats from digital
technology. When almost every activity leaves a digital trail, government and
private monitoring become less about analog surveillance and more a matter of
"data mining”.[17]
4. Emerging Trends Of Cyber Crime In
Digital Age:
The word cyber space was first used
by William Gibson, in his book, Necromancer, written in 1984. Cyberspace can be
defined as a virtual world of computers where internet is involved, where
individuals can interact, conduct business, do transactions, develop graphics.[18]In
1960s Internet was developed for better communication and research. With the
advancement of ‘e’- technology everything becomes effortlessly to access as
well as pathway to commit crimes without any endeavor. Although there exist
firewalls, antivirus software, and other technological solutions for
safeguarding the data and networks, some human minds of criminal nature use
internet as a tool of crime which is now known as cybercrime committed in cyber
space.[19]Cybercrime
is not a new form of crime – it is a description applied to new ways and
means of committing familiar crimes
of various kinds, principally involving dishonesty, principally (but not
exclusively) involving money and often (but also not exclusively) involving
very old forms of crime indeed (such as theft).[20]Cybercrime
mainly consists of unauthorized access to Data and data alteration, data
destruction, theft of funds or intellectual property. Due to these online
criminal activities cyberspace is most unsafe place to do business. Hence there
is need to enhance awareness about the cybercrime. Recent years have seen a
series of “moral panics” regarding information accessible on the Internet and
its use for criminal activity.[21]
4.1 Cyber Stalking:
The Internet is a global medium
regardless of boundaries and frontier that provides pathway to Cyber-Stalker.[22]Cyber
stalkingmeans to stalk someone by various modes like: (1) Following the posts
of concerned persons, (2.) Noting down personal details i.e. contact details
and address, (3) Favorite color, (4) Favorite Food & Restaurant, (5)
Downloading pictures and (6) Friends List. This term is used interchangeably
with online harassment and online abuse.First stalking case registered in
India: The Delhi Police registered India’s First Case of Cyber stalking. One
Mrs. RituKohli complained to the police against a person who was using her
identity to chat over the Internet at the website www.mirc.com, mostly in the
Delhi channel for four consecutive days. Mrs. Kohlifurther complained that the
person was chatting on the Net, using her name and giving her address and was
talking obscene language. The same person was also deliberately giving her
telephone number to other chatters encouraging them to call RituKohli at odd
hours. Consequently, MrsKohli received almost 40 calls in three days mostly at
odd hours from as far away as Kuwait, Cochin, Bombay and Ahmadabad. The said
calls created havoc in the per- sonal life and mental peace of RituKohli who
decided to report the matter.[23]
4.2 Vishing:
As indicated from the word ‘Vishing’-
this has come from “voice,” and “phishing,” Vishing is the act of using the
telephone in an attempt to scam the user. Just like ‘phishing’ is the use of
spoofed
emails designed to trap targets into
clicking malicious links. Instead of email, vishing generally relies on
automated phone calls, which instruct targets to provide account numbers for
the purpose of financial reward. Vishing Scams work: Criminals set up an
automated dialing system to text or call people in a particular region or area
code (or sometimes they use stolen customer phone numbers from banks or credit
unions). The victims receive messages like: “There’s a problem with your
account,” or “Your ATM card needs to be reactivated,” and are directed to a
phone number or website asking for personal information. Sometimes criminal
quote some information about your account before asking you to enter
information, so that anyone could believe it’s an authenticated source.[24]Presently,
many cases of this nature are happening in newspapers.
4.3 Website
Defacement: Website defacement is novice offence against websites with an
intention to cheat innocent visitors of website. It is an attack on a website
that changes the visual appearance of the site or a webpage. These are
typically the work of defacers, who break into a web serverand replace the
hosted website with one of
their own. Defacement is generally meant as a kind of electronic graffiti and, as other
forms of vandalism, is also used to
spread messages by politically motivated
"cyber protesters" or hacktivists. It is more improved concept of Pharming.
4.4 Copyright Infringement:
Copyright is a legal right granted by
the government to the authors or creators of works. Under the copyright law,
the copyright owner is entitled to a number of exclusive rights such as right
to publish the work, control copying, and prepare derivative works and the
right to make the material available online. Copyright protection becomes
applicable immediately upon creation of the manuscript. The Indian Copyright Act, 1957 governs and
regulates the system of copyright in India, however, maximum of the copyright
violations occur on Internet like Clicking, Downloading pictures without
consent and uploading on Internet.[25]
5.
An Analysis of the impact of Justice K. S. PuttaswamyJudgment in Cyber Crimes:
According to the
judgment of Justice K S Puttaswamy (Retd.) versus the Union of India, Supreme Court has made the ‘Right of Privacy’ has been
declared as a fundamental right. This decision has resolved tremendous problems
existing in legal documents related to protection of privacy online.
1.
Clarity on the phrase “None of your
Business’: With this
decision clarity has been laid down on most of the pieces of information that
fall under the phrase “none of your business”. When aninformation is shared
voluntarily on the Internet (Social Networking Websites, Facebook, Twitter,
Instagram, Whats-app and Snapchat) the same may be said to be in confidence and
any breach of confidentiality is a breach of the trust. This is more so in the professional
relationships such as with doctors and lawyers which requires an element of
candor in disclosure of information. An
individual has the right to control one’s life while submitting personal data
for various facilities and services. This decision has made its application on
digital privacy clearly.
2.
Acknowledgment of Control over
Dissemination:Dr.
D.Y. Chandrachud, Justice[26]
in this decision highlighted that: “Recognizing a zone of privacy is an
acknowledgement that each individual must be entitled to chart and pursue the
course of development of their personality. Justice Rohinton F.
Nariman,recognizes informational privacy which recognizes that an individual
may have control over the dissemination of material which is personal to
him.” Recognized thus, from the right
to privacy in this modern age emanate
certain other rights such as the right of individuals to exclusively
commercially exploit their identity and personal information, to control the
information that is available about them on the ‘world wide web’ and to
disseminate certain personal information for limited purposes alone.
3.
Viewing Web-Page does not mean
Strangers’ Entry:
Present day the technology has made
it possible to enter a citizen’s house without knocking at his/her door. It is
an individual’s choice as to who enters his house, how he lives and in what
relationship. The privacy of the home must protect the family, marriage,
procreation and sexual orientation which are all important aspects of dignity.
If the individual permits someone to enter the house (here space on the web) it
does not mean that others can enter the house. The only check and balance is
that it should not harm the other individual or affect his or her rights. This
applies both to the physical form and to technology.
4.
Principle of Proportionality and
Legitimacy:This
decision laid down the tests to maintain balance between the interference of
State and zone of privacy of individual. As laid down in this case, the
possibility of the State infringing the right to privacy can be regulated by
the test suggested for limiting the discretion of the State: “(i) The action
must be sanctioned by law; (ii)
5.
The proposed action must be necessary in a democratic society for a
legitimate aim; (iii) The extent of such interference must be proportionate to
the need for such interference; (iv) There must be procedural guarantees
against abuse of such interference.” The author suggests that these tests need
more elaboration in the context of digital cases.
6.
Relevance of ‘Consent’ in Cyber
World:
For the first time in the history of
India, this decision has laid down the relevance of ‘Concept of Consent’ in
digital world. It has clearly attacked against the offence of Identity Theft
and Cyber Personation that is already punishable under the Information
Technology Act, 2000 as amended in 2008. [27]Every
individual should have a right to be able to exercise control over his/her own
life and image as portrayed to the world and to control commercial use of
his/her identity as he wants. This also means that an individual may be
permitted to prevent others from using his image, name and other aspects of
his/her personal life and identity for commercial purposes without his/her
consent. This is ripe time to spread awareness[28]among
Netizens- Netizens means users of Internet.
7.
Recognition of Cyber Torts
Activities:
Recognizing various activities on the
Internet as cyber tort has opened new ways of seeking remedy. Prosser[29]
categorized the invasion of privacy into four separate torts; which has been
acknowledged: 1) Unreasonable intrusion upon the seclusion of
another; 2) Appropriation of another’s
name or likeness; 3) Unreasonable
publicity given to the other’s private life; and 4)
Publicity that unreasonably places the other in a false light before the
public
8.
Preservation is the Norm and
Forgetting a Struggle:
Acknowledgment of Right to be Forgotten
The European Union Regulation of 2016
has recognized what has been termed as ‘the right to be forgotten’. According
to this decision, “The impact of the digital age is that the information once
published on the Internet remains permanent. Humans forget, but the internet
does not forget and does not let humans forget. Any endeavor to remove
information from the internet does not result in its absolute obliteration.
The foot prints always remain deep inside the
web pages. It is thus, said that in the
digital world preservation is the norm and forgetting a struggle.”People are
not static, they change and grow through their lives. They evolve.
They make mistakes. But they are
entitled to re-invent themselves and reform and correct their mistakes.They
should not be subjected to the consequences of their childish mistakes and
naivety, their entire life.People change and an individual should be able to
determine the path of his life and not be stuck only on a path of which he/she
treaded initially. An individual should have the capacity to change his/her
beliefs and evolve as a person. Individuals should not live in fear that the
views they expressed will forever be associated with them and thus refrain from
expressing themselves.[30]
6. Conclusion
On the basis of analysis of this
judgment, it is submitted that this decision has resolved tremendous problems
existing in legal documents related to protection of privacy online.Each
second,enormous amount of digital information is generated. Every interaction
with the Internet, every credit card transaction, every change of password,
every photo uploaded, every bank withdrawal, every magazine subscription is
recorded digitally and linked to specific individuals. All this information,
once it is collected in networked databases, can be sent instantly and cheaply
around the globe. In this newly-commoditized information ‘e’-market, buyers
anywhere can collate and manipulate the data for marketing, profiling, or more
sinister purposes. Most people are not even aware what information has been
collected or how it is being used. Prior to this decision, the Information
Technology Act 2000 as amended in 2008 has added several provisions for data
protection and imposed responsibility on the body corporate for preservation of
data. However, this decision has provided a fertile platform for the enactment
of new Data Privacy law in India. The systematic incorporation of essential
elements like: Consent, Principle of Proportionality and Legitimacy, right to
be forgotten and interference of others’ has settled several unsettled issues
in cyberspace.
Article Information
Fundamental Right To Privacy In Digital Age: An Analysis Of The Impact Of Judgment Of Justice K. S. Puttaswamy In Cyber Crimes (By- Prerana Anand & Dr. Sirish Kulkarni)
Authors: Prerana Anand, Dr. Sirish Kulkarni
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/08/08
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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