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Privacy under It act

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privacy under IT Act
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  S HARING OF P ETITIONERS I NTERNET A CTIVITY WITH T HIRD P ARTY IS I LLEGAL AND V IOLATION OF R  IGHT TO P RIVACY   Sharing of Manu Sharma‟s  Internet activity by WindTel with a third party, especially one like Wind Entertainment is illegal and it has violated his right of privacy. The respondent in there capacity of being an intermediary has failed to preserve and retain the data of its subscriber and were negligent in implementing and maintaining reasonable security practices and  procedures. They are also liable for the disclosure of the personal information of the  petitioner without his consent and responsible for unauthorized interception of petitioner‟s data. V IOLATION OF R  IGHT TO P RIVACY   The right to privacy has not been expressly guaranteed in the Constitution of India, nevertheless the Supreme Court has recognized this right by construing “right to privacy” as  part of the right to “protection of life and personal liberty”. 1  In the absence of a general law governing privacy, the law of privacy in India has been developed through precedents. The right to privacy was reintroduced in the Indian legal system by this Court in Gobind v.  State of Madhya Pradesh 2 . The constitutional holding that frequent domiciliary visit by police without a reasonable cause infringed upon the petitioners‟ right to privacy firmly established the right for citizens of the country. 3  There are various other incidents where this Court has recognized the right to privacy as the right to be let alone 1  Article 21 of the Constitution of India 2  (1975) 2 SCC 148, see also Ms X v. Mr Z, AIR 2002 Delhi 217; Sharda v. Dharampal, (2003) 4 SCC 493 3  See, e.g., Khushwant Singh v. Maneka Gandhi, A.I.R. 2002 Del. 58 (India) (Per Devinder Gupta & Sanjay Kishan Kaul, JJ.); Elkapalli Latchaiah v. Govt. of Andhra Pradesh, 2001 (5) A.L.D. 679 (India) (Per S. B. Sinha, C.J. & V. V. S. Rao, J.); Tamil Nadu Tamil & English Schools Association v. State of Tamil Nadu, 2000 (2) C.T.C. 344 (Per A. S. Venkatachalamoorthy, J. et al.).  and that a citizen has a right to safeguard his privacy. 4  It has also been held that the right to  privacy is not an absolute right and restriction can be imposed on it for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others. 5  In the historic judgment of  People’s Union for Civil Liberties  v. Union of India 6 , where section 5 of the Indian Telegraph Act, 1885 was challenged which authorizes the Central and the State Government to resort to phone tapping. This Court held that telephone tapping is a serious invasion of an individual‟s right to privacy and it should not be resorted to by the State unless there is a public emergency or interest of public safety requires. And this Court laid down procedural safeguard for the exercise of power of phone tapping. Privacy in the technology driven world is a difficult proposition. Technology has become a kind of double-edged weapon, on one hand it equips the person to safeguard his privacy and on the other it helps in blowing the privacy cover, one may have. 7  A person accessing the internet often does so within the privacy of his own home and expects a reasonable level of  privacy. 8  The communications when not with a human party are for the satisfaction of his or her own desires and curiosities. A person may divulge more information to a computer than to another person. Hence internet communications are inherently intimate and concern the core of the privacy of the person. 9  The right to privacy is a fundamental right. The petitioner has a right to use the internet freely and has the right to maintain his privacy relating to his internet history. The respondent not 4  R. Rajagopal v. State of T.N. (1994) SCC 632 5   Mr. „X‟ v. Hospital ‟Z‟ AIR 1995 SC 495   6  AIR 1997 SC 568 7  Information Technology- Law and Practice, Vakul Sharma, Third Edition, Universal Law Publishing Co. New Delhi, 2011. 8  Cyber Cafe in Gandhinagar, India, http://www.worldembassyinformation.com/india-cyber-cafe/cyber-cafe-in- gandhinagar.html (last visited July 5, 2010)   9   “ The Law of Online Privacy in India ” By Apar Gupta, (2011) PL April S-3  only shared the internet activity of the petitioner with a third party but also disclosed and threatened to disclose the information of the petitioner. The actions of the respondent are in complete violation of the right to privacy and he must be held liable for the same. C ONTRAVENTION OF I NFORMATION T ECHNOLOGY A CT ,   2000   The respondent actions of sharing internet activity of the petitioner was in complete contravention of various IT Act provision and rules, which has attracted several criminal as well as civil liabilities. D UTY TO P RESERVE AND RETAIN INFORMATION AND TO IMPLEMENT AND MAINTAIN REASONABLE SECURITY PRACTICES AND PROCEDURES  WindTel  being an ISP provider is an „intermediary‟  under § 2 (1) (w) the IT Act. The IT Act has made intermediaries responsible for preservation and retention of information. 10  The term ‟information‟ includes data, message, text, images, sound, voice, codes, computer  programmes, software and databases or micro film or computer generated micro fiche. 11  Any activity on the part of intermediaries to preserve and retain any information may also require fulfillment of norms related to information (data) security and privacy, i.e., the onus is on the intermediaries to have “reasonable security practices and procedures”. Moreover intermediaries are “body corporate” as defined under section 43A Explanation (i) 12 . 13  Also section 43A of the Act has made it abundantly clear that where a body corporate,  possessing, dealing or handling any sensitive personal data or information in a computer resource which it owns, controls or operates, is negligent in implementing and maintaining 10  Section 67C 11  Section 2(1)(v) 12   body corporate means any company and includes a firm, sole proprietorship or other association of individuals engaged in commercial or professional activities 13  Information Technology- Law and Practice, Vakul Sharma, Third Edition, Universal Law Publishing Co. New Delhi, 2011. Page- 223-224  reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to an person, such a body corporate shall be liable to pay damages by way of compensation to the person so affected. In  Amit D. Patwardhan  v.  Rud India Chains 14  ,  the Adjudicating Officer, found that the respondent had, by unlawfully obtaining the complainant‟s bank account statements which constit ute sensitive personal data, violated the complainant‟s privacy.  In the connected matter    the adjudicating officer held that   the Respondent, i.e. Bank of Baroda has failed to protect the confidential, private and sensitive data of customers, and is clearly in breach of various sections of IT Act such as 43A and several other rules and ordered the bank to pay compensation. 15  In other words, intermediaries shall have twin responsibilities, i.e. to preserve and retain any information, as well as to implement and maintain reasonable security practices and  procedures. Non-compliance of these provisions may attract criminal as well as civil liabilities under section 67C and 43A respectively. 16  D ISCLOSURE OF I  NFORMATION  Section 72A of the Act provides punishment for disclosure of information in breach of lawful contract. This section creates liabilities for service providers, including an intermediary. It is in fact a kind of data protection measure, wherein a service provider who has secured access to any material containing personal information about a person, discloses such information 14  Complaint No. 1 of 2013 dated 16th January, 2013, before the adjudicating officer Sh. Rajesh Aggarwal, Secretary, (Information Technology), Government of Maharashtra. Decided on 15.4.2013 15    Amit D. Patwardhan  v. Bank of Baroda,  Complaint No. 15 of 2013 dated 28th June 2013, before the adjudicating officer Sh. Rajesh Aggarwal, Secretary, (Information Technology), Government of Maharashtra. Decided on 30.12.2013 16  Information Technology- Law and Practice, Vakul Sharma, Third Edition, Universal Law Publishing Co. New Delhi, 2011. Page-224
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