Privacy Blog

CCTV in Universities

merlin — 2011-09-01T09:50:09Z

Basic Closed Circuit Television (CCTV) Infrastructure is used to observe movements from a central room, and consists of one or more video cameras that transmit video and audio images to a set of monitors or video recorders.

A Brief History of CCTV's

Video surveillance as a means of policing gained prominence in the 1950s when the UK police installed two pan-tilt cameras on traffic lights to monitor traffic near the Parliament. Since then the United Kingdom has become the country with the most number of surveillance cameras.[1]

The proliferation of CCTVs has been attributed to the growing radicalization of human behaviour wherein organized groups terrorized entire nations and threatened their internal security. The 1985 terror attack on the then Prime Minister of Britain by the IRA and many such instances thereafter have led many countries to adopt CCTV as a means of policing. In India, terror attacks on the Mumbai stock market and successive instances have pushed the Indian Government to install CCTVs in prominent public areas so that it is possible to monitor suspicious movements.[2]

CCTVs and Public Perspective

Since the 1950'sCCTVs have become ubiquitous and ever present, monitoring our daily movements, and infringing into our personal space. Though governments believe CCTVs are essential security instruments, the public is less convinced. The early anxiety to be safe from an unseen danger has given way to a new unease amongst the people, that of constantly being watched by an unseen eye.

CCTVs in Educational Institutions

CCTVs are typically used by the government or private agencies for surveillance in areas frequented by the public that need monitoring. Recently though, universities across the length and breadth of the country have resorted to the use of CCTVs for policing campus activities and to keep the students in check and under control. Huge budgets are set to wire campuses with CCTV infrastructure, t causing students to protest as well as laud the initiative by the administration. The debate on CCTVs has gained momentum in recent years with students staging huge rallies both in support of and against it.

Example 1:

The most prominent of the agitations against CCTVs was staged by the students of Jadavpur University in Kolkata on the administration’s decision to install 16 CCTVs on the four main exit points of the campus and other strategic locations.[3] The installation cost Rs.20 lakh. The students protested loudly against the decisions and ‘gheraoed’ the office of the vice chancellor for 52 hours. The students claimed that the administration was curbing their individual freedom and robbing the campus of it’s democratic atmosphere. The administration refused to remove the cameras, and claimed that the move was necessitated for the security of the students and to prevent any unforeseen incident.

Example 2:

The girl’s residing in the Women’s Hostel of The University of Pune protested against the setting up of CCTV cameras’ in the entrances of the hostel to check for unauthorized visits from boyfriends and friends. The girl’s vandalized the camera and claimed that they were an infringement to their privacy. The hostel authorities insisted that the cameras did not infringe on the privacy of the women, and were only installed at the entrance gates to keep a tab on visitors.[4] The authorities claimed that this step was taken in congruence with the hostel’s policy of not allowing visitors to stay the night.

Example 3:

The girls of the Churchgate’s Government Law College succeeded in getting the CCTV camera removed from the Girl’s Common Room, as it was seen as an infringement to their privacy. The MNS stepped up the agitation in favor of the students which led the college administration to finally take notice and remove the camera from the common room.[5]

The Flip Side

The issue of CCTVs in campuses takes an interesting turn when the students support the move to install cameras in campuses.

Example 1:

Delhi University installed CCTV cameras in their campuses after the Delhi Police issued an advisory for the same. They claimed that the advisory issued was to monitor the instances of on campus ragging. The Delhi Police also helped fund the setting up of CCTVs in the college. This move was lauded by the students, and the colleges took instant measures to wire their campuses.[6]

Example 2:

Recently, after the murder of a Delhi University student named Radhika Tanwar in broad day light, many student union groups assembled for a candle light vigil. They demanded CCTV cameras near the Satya Niketan bus stop where Radhika was killed which is an isolated stretch of a road. The massive agitation of almost a week brought the National Commission of Women into the foray who seconded the demand put forth by the student body.[7]

Example 3:

The recent instance of an RTI exposing inflated bills for setting up CCTVs in the Punjab University Campus also throws light on an interesting facet to this debate as the students do not mind the CCTVs in their campus. The student’s union of the university demanded the authorities to look into the discrepancies of the budget, and also expressed anger as the CCTVs installed did not work. The students claimed that the rising violence in the campus is because of disinterested security men and non working CCTV cameras.[8]

Conclusion

The decisions to use CCTVs as a means of surveillance evokes mixed responses. On one side of the debate they are seen as a deterrent to crime while on the other side of the debate they are seen as beinggross infringements on privacy. CCTV surveillance remains as a bone of contention amongst students. If they feel that their personal space is being invaded by these cameras then it needs to be addressed by the administration in a manner which appeases their fear. Universities randomly adopt the policy of CCTV surveillance, disregarding any voice of dissent. Kashmir University put up CCTVs in it’s campus to shoo away lovebirds and the Aligarh Muslim University has installed 57 CCTV cameras in it’s campus to keep a check on students. The rise of the CCTVs in colleges relates to not the actual crime but to the fear of crime. Therefore, CCTVs have become a tool of re-assurance [9]which feeds a notion of safety and security to the authority in charge.

There is no black and white regarding the implementation of CCTVs in universities. A policy can only benefit both sides when decisions are taken with the students, and not on behalf of them. Indian Universities have no guidelines and policies regarding the implementation of CCTVs and students remain unaware of any decisions in this regard. The Universities should clearly spell out their take on CCTVs including:

University policy regarding CCTVs policies
The reasons for introducing CCTVs
The proposed uses of CCTV infrastructure
Which areas in the campus will be kept under surveillance
How will the data collected be stored
How long will the data be retained
How will the data be deleted[10]

The Universities should address all these issues to dispel fear from the minds of the students, and the student unions should be included in the discussions regarding the implementation of CCTVs.

Notes

[1].Webster,William; CCTV policy in the UK: Reconsidering the evidence base; sueveillanceandsociety.org.

[2].Norris, Clive;MC Cahill, Mike;Wood, David; The Growth of CCTV: A Global Perspective on the international diffusion of video surveillance in publically accessible space; surveillance-and-society.org.

[3].Timesnow.tv/jadavpuruniversity, www.haata.com.

[4].http://www.ndtv.com/article/cities/female-hostellers-damage-cctv-cameras-to-protect-privacy-83889, http://toostep.com/debate/is-it-right-to-install-a-cctv-in-girls-hostel-to-stop-unauth.

[5].http://www.mumbaimirror.com/index.aspx?page=article§id=2&contentid=201101212011012104560935753ecb888, http://ibnlive.in.com/news/cctv-cameras-in-hostel-rob-pune-women-of-freedom/142681-3.html.

[6].http://www.expressindia.com/latest-news/after-delhi-police-advisory-du-to-install-cctv-cameras/761421/.

[7].http://www.indianexpress.com/news/women-constables-cctv-cameras-in-girl-stude/766083/.

[8].http://www.punjabcolleges.com/5526999-itemdisplay-Misappropriation-of-funds-on-CCTV,-RTI-exposed-it-Chandigarh.htm.

[9].www.surveillance-and-society.org/ojs/index.php/journal/article/view/prozac/prozac.

[10].www.ucl.ac.uk/estates/security/documents/cctvpolicy.doc, http://www.wustl.edu/policies/cctv-monitoring-and-recording.html.

For more details visit https://cis-india.org/internet-governance/blog/privacy/cctv-in-universities

Re-thinking Key Escrow

natasha — 2011-08-22T11:44:21Z

Would you make duplicates of your house keys and hand them over to the local police authority? And if so, would you feel safe? Naturally, one would protest this invasion of privacy. Similarly, would it be justified for the government to have a copy of the private key to intercept and decrypt communications? This is the idea behind key escrow; it enables government ‘wiretapping’.

The evolution of technology has allowed for increased communication and interconnectedness among people, markets and institutions all over the globe. This has increasingly facilitated the transaction and exchange of all kinds of information. However, this has raised major ethical concerns surrounding the privacy of communication and security of information. Key encryption is an important tool developed to preserve an individual’s privacy. It involves transforming information, so as to ensure that it is unreadable. The need for encryption is irrefutable.

Governments and authorities are concerned with the difficulties associated with accessing and intercepting the encrypted communication. For lawful interception a recovery key is escrowed with a trusted third party. Key escrow is controversial as it is vulnerable to lawful interception and has the potential to threaten the security of sensitive and personal data. In India, key escrow is a requirement under the Indian Internet Service Provider (ISP) license. This means that an ISP, a law enforcement agency, or other party has the potential to partake in covert surveillance and maliciously use the key, thereby compromising the data.

In a short video Jim X. Dempsey, Vice President of Public Policy at the Centre for Democracy and Technology in Washington, DC reviews the public policy battle over key escrow in the United States that took place in the 1990's. At the time the U.S government’s approach to encryption technology involved the use of key escrow in communication devices. One danger of using key escrow in this way was that it allowed for the commercial use of encryption technology, provided that a copy of the private key is held in escrow by the U.S. government. The use of key escrow also permitted the U.S. government to decrypt all data transmitted across communication networks. The risks associated with the use of key escrow led to widespread dissatisfaction from the private sector in the U.S., which ultimately led to the rejection of encryption technology by the President and Congress. In response to the strong negative feedback given by different stakeholders, the US government lifted the controls on encryption technology thereby allowing it to become widely available.

The use of key escrow in India should be seriously reconsidered. Foremost, it subverts basic constitutional practices by violating various freedoms and civil liberties guaranteed in the fundamental rights. Secondly, it threatens the security of personal information. Lastly, it could significantly hinder the growth of e-commerce, transactions, and purchases made over the Internet. The Indian government should take into consideration the failed attempt in implementing the system of key escrow in the United States when deciding on whether or not to implement the use of key escrow in India.

Please see Jim Dempsey’s account on the Short History of Key Escrow.

For more details visit https://cis-india.org/internet-governance/blog/privacy/key-escrow

UID: Nothing to Hide, Nothing to Fear?

shilpa — 2011-09-28T11:44:21Z

Isn’t it interesting that authorities ask you about your identity and you end up showing your proof of existence! Isn’t this breaching into one’s personal life? Why so much transparency only from the public side? Why can’t the government be equally transparent to the public?, asks Shilpa Narani.

Before I get into an argument, I would like to share with you that my research is based on a comparative study of articles published on UID in leading newspapers like the Times of India, the Indian Express, the Hindustan Times, and its supplement LiveMint, Business Standard, Asian Age, DNA India, Bangalore Mirror, Deccan Chronicle and Deccan Herald. My research shows that the government officials and the individuals working for the UIDAI, who are involved in proposing identity system, are in fact hide their own identity from the public.

Background

A pan-India project to “identify” each resident was formally inaugurated in 2009, with the establishment of the Unique Identification Authority of India (UIDAI) as an office attached to the Planning Commission.[1] The goal of the Unique ID project is to issue a unique identity number to every resident in the country. The Unique Identification number (UID) will be linked to every resident’s basic demographic and biometric details, and stored in the UIDAI central database.[2] Now a 12 digit number will henceforth decide whether you exist or not? It will decide whether you remain a known or an unknown person? With this blog I would like to highlight the irony in the UIDAI's attempt to establish if a person is known or is unknown with a 12 digit number.

An identity card virus seems to be spreading across India. Everyone is praising the UID and the social, economic, and political improvements it will bring. “The aim of the UID scheme is to bring transparency in the system,'' says Sonia Gandhi.[3] One has to wonder though — if the aim of the UID is to bring transparency, why it is that government and UIDAI officials are not transparent themselves?

Findings

According to my research, in 55 news articles taken from different newspapers mentioned above, there are 66 persons who shared their views on UID only on the condition of anonymity. Most of these individuals were public servants who themselves did not wish to be identified. For instance, one individual was from the department of information technology, who is working on the UID project and with the UIDAI itself.

Total Anonymous

As one can see from the graph above, the total number of anonymous people sharing their perspectives on the UID are more than the total number of identified people sharing their perspective on the UID. Below is a detailed review of UID articles from each newspaper:

Times of India: Out of 13 articles, Times of India quoted nine anonymous sources in which there were HRD officials, civic sources, sources from census operation department, collectorate sources, senior postal officials, UIDAI officials, and unclassified individuals. Times of India only quoted four identified sources.

Indian Express: Out of 10 articles, the Indian Express quoted twelve anonymous sources including sources from senior officials of the AADHAR office, senior Delhi government officials and some unclassified sources. Again only four identified sources were quoted.

LiveMint: Out of 7 articles, the Live Mint quoted 15 anonymous sources including sources from the Information Regulatory and Development Authority (IRDA), UIDAI, Bank of India, a senior SEBI official, sources from ministry, etc. Only 11 sources revealed their identity.

Hindustan Times: Out of 3 articles, there were 6 anonymous sources, and 5 sources that were identified. Anonymous sources were from UIDAI, finance ministry, and other government officials.

Deccan Herald: Out of 11 articles, there were 14 anonymous sources and only 6 were identified. Anonymous sources included UIDAI officials, banks, senior officials from government, and unclassified sources as well.

Asian Age: Out of 4 articles, there were 5 anonymous sources. Anonymous sources included government officials and some unclassified officials.

Power of Identity: Why is anonymity important?

UID has the potential to threaten an individual’s ability to be anonymous in society. Anonymity results when the personal identity or personally identifiable information of a person is not known. As demonstrated above, a certain amount of anonymity already exists in India today, but with the coming of the UID there is the potential that this will be changed.

Conclusion

As Sonia Gandhi herself said, the UID's aim is to bring transparency in the system. Though the government is eager to make the Indian public transparent in their everyday lives, clearly from the analysis above, individuals working for the government and UIDAI are not comfortable being transparent to the public. It is ironic that the individuals developing and working for this scheme are not willing to voice their opinion and be identified, but private individuals are. Though the UID scheme is being promoted as a way to make the people accountable and visible in the eyes of the government, from the very start of the project the UIDAI and government have kept themselves under a cloud of secrecy. The government’s non-transparent attitude towards this project and the unawareness of its use on the people makes the whole scheme shady and unnecessary.

Notes

[1]http://uidai.gov.in/UID_PDF/Front_Page_Articles/Documents/Strategy_Overveiw-001.pdf

[2]http://uidai.gov.in/UID_PDF/Working_Papers/UID_and_iris_paper_final.pdf

[3]http://articles.timesofindia.indiatimes.com/2010-09-30/india/28243557_1_uid-number-unique-id-numbers-tembhli

Download the UID Summary Grid here [Excel, 19kb]

For the summary of articles in newspapers, click here

For more details visit https://cis-india.org/internet-governance/blog/privacy/uid-nothing-to-hide-fear

An Overview of DNA Labs in India

shilpa — 2016-02-02T13:11:31Z

DNA fingerprinting has become the most precise and technologically advanced method for identifying crimes such as murder, kidnapping, robbery and rape. Police and judicial authorities and in some cases even private parties retain this in their records, writes Shilpa in this blog post.

At present, India does not have a national law that empowers the government to collect and store DNA profiles of convicts but if the Parliament of India passes the DNA Profiling Bill,[1] 2007, India will soon join countries such as the US and UK in creating a national DNA database.[2] Government, CBI and organizations connected with the investigation process argue that data retention is necessary to combat terrorism and crime. According to Google Transparency Report [3] for the first half of 2010, India had 1,430 data requests, which made it one of the top nations in generating government inquiries for information.

In this blog I am citing my interviews with DNA labs, Issues regarding lab samples and data, and DNA Profiling Bill 2007 on lab practices. I am thankful to Anthony Jackson and Dr. Helen Wallace, Executive Director from Gene watch UK who helped me with the questionnaire for survey interview.

Interviews with DNA labs

I interviewed few government as well as private labs to find out how DNA practices are being carried out. This was to highlight ways in which DNA testing raises privacy concerns.

In public labs, DNA testing is used for the forensic purposes only. These labs are funded by the government whereas private labs deal with legal as well as private purposes. DNA Labs India (DLI), Truth Labs and Bio-Axis DNA Research Centre (P) Limited are some leading private firms involved in DNA testing.

Dr. Madhusudan Reddy Nandineni, who is the Scientist and In-charge of the Centre for DNA Fingerprinting and Diagnostics (CDFD) talked about the working of DNA practise and services provided by their laboratory. “CDFD located in Hyderabad is an autonomous institution supported by the Department of Biotechnology and Ministry of Science. CDFD provides services for DNA testing for establishment of parentage, identification of mutilated remains, establishment of biological relationships for immigration, organ transplantation, property inheritance cases, identification of missing children and child swapping in hospitals, identification of rapists in rape cases, and murderers in murder cases. CDFD assists police personnel, forensic scientists, lawyers and the judiciary”, says Dr. Madhusudan Nandineni over a telephonic interview.

The ND Tiwari Case (Published in the Deccan Herald, 24 July 2011)
Eighty-five-year-old leader ND Tiwari was asked to undergo a DNA test in the paternity suit filed by Rohit Shekhar who claims to be his biological son. The high court asked the Centre for DNA Fingerprinting and Diagontics (CDFD) at Hyderabad to conduct a DNA test on Tiwari.[4] Also refusing to grant any relief to Tiwari, the court said that considering the age of the leader, it is necessary to have a DNA test so that the Rohit Shekhar is not left without any remedy if something happens to Tiwari. The court said that it is the right of a child to know his or her biological father.[5]

Dr. BK Mahapatra, Assistant Director, Biology & DNA Finger printing Unit at Central Forensic Science Laboratory, Delhi says “CFSL undertakes cases referred by CBI, Delhi police, judiciary, vigilance department of ministries, public undertakings and state/central government departments. We don’t contract with private laboratory to do a DNA testing. We accept all type of DNA cases submissions like criminal, known, unknown, etc. CFSL saves DNA samples for re-testing, however, for this we do have a privacy policy followed by National Accreditation Board for Testing and Calibration Laboratories (NABL). It is an autonomous body under the aegis of the Department of Science and Technology, Government of India and is registered under the Societies Act”, he clarified.

In a telephonic interview with Ravi Kiran Reddy, DNA expert, DLI a, tells us about the services provided and security supervise by the laboratory. “DLI provides services for paternity testing, forensic testing, prenatal testing, and genetic testing. DLI contracted with a private laboratory to do DNA testing. We accept all DNA cases like suicide attempts, cases from Indian Army, etc. DLI saves DNA samples for re-testing for six months and if necessary for life time and a database is also maintained. He further said that to protect and secure database, bar coding is being prepared and therefore, no identity is revealed.

Some of the labs refused to participate in the research exercise like the truth labs. Truth Labs is a private lab that provides legal services directly, without a court or police order.[6] Another private laboratory which provides DNA testing is Bio-Axis DNA Research Centre. It also provide various DNA Identification services for private purposes, legal purposes, peace of mind, confidential purposes, immigration purposes, crime investigation and human identification purposes.[7]

Issues Regarding Lab Samples and Data

Readers may have heard of rapists being caught because of a match between a suspect's DNA and sperm left behind in a victim. Or, as often the case, an innocent person may be released because the DNA of that person does not match that found in a crime scene.[8]

Possibility of Framing Innocents: Kshitij Urs, an Action Aid said, “There can be some problems if one were to rely too much on DNA databases in the criminal justice system as DNA evidence can be planted in a crime scene intentionally”, in an event organised by CIS.
Insecurity of Centralised Storage: With DNA tests, a patient's medical file will contain information they would prefer to be confidential. But the whole idea of general DNA testing will only be effective if the data is stored in a single electronic database, which makes the confidentiality problem extremely pressing. For example, the results of DNA testing might reveal that a person who is legally a child's father isn't really his biological father.[9]
Other Privacy Concerns: DNA contains information that raises a much broader privacy and other civil liberties concerns. It can tell investigators about ourselves, our family members, diseases we may have inherited our physical attributes and broad ancestry. Genetic information can be used in all sorts of discriminatory ways.[10]

What can be done?
There should be a DNA retention policy to protect an individual. It will identify personal data which has to be maintained and contain guidelines for how long certain documents should be kept and how they should be destroyed.[11] In the situation of DNA collection and testing privacy cannot be protected simply through consent from an individual. Instead the law must permit specific thresholds to be established in order to cover the privacy needs of different situations. DNA profiling Bill 2007 will regulate the use of DNA profiles which is pending in the Parliament.

DNA Profiling Bill 2007 on Lab Practices

According to the DNA Profiling Bill there are certain rules for the DNA laboratories which are followed by these labs.

Prohibition for undertaking DNA procedures: It states that DNA laboratories have to take prior permission from the DNA Profiling Board to undertake any DNA procedures.
Security and minimize contamination: There should be proper facility of security and minimize contamination of DNA samples.
Confidentiality, Access to DNA Profiles, Samples and Records: DNA Profiling Bill states that all DNA profiles, samples and records forwarded to the DNA laboratory or any authority of the lab has to be kept confidential.
Use of DNA profiles, samples and records: All DNA profiles, samples and records should be used only for facilitating identification of the perpetrator(s) of a specified offence and also to identify victims of accidents, disasters or missing persons or for such other purposes.
Authorised Access: It also says that information stored on the DNA database system may be accessed by the authorized persons for the purposes of forensic comparison permitted under this Act, administering the DNA database system, accessing any information contained in it by law enforcement officers or any other persons, as may be prescribed, in accordance with provisions of any law for the time being in force, inquest or inquiry.
Restrictions on use of information on DNA profiles, samples and data identification records: Laboratory cannot use the information for any purpose other than the purpose for which the communication or access is permitted.
Destruction, alterations, contamination, tampering with biological evidence: The Bill states that whoever knowingly or intentionally destroys alters, contaminates or tampers with biological evidence will be punishable with imprisonment for a term which may extend to five years, or with fine not exceeding twenty thousand rupees, or with both.[12]

Conclusion

Currently the Bill allows for the complete storage of DNA of criminals, suspects, victims, offenders and volunteers.
There are no standard practices for data retention across lab. Thereby there is an increased risk that data might fall in wrong hands and information may also be misused. Therefore, DNA databases should be restricted to be stored for not more than a limited time period. Such indefinite retention of the DNA profiles of innocent individuals is a disproportionate and unnecessary interference with an individual’s right to privacy.
DNA labs in India have numerous constraints and operating in different level. Therefore, India has to be having even more carefully designed laws.

List of Laboratories

Central Forensic Science Laboratory, Delhi
Dr. BK Mahapatra
Associate Biology Division
Ph: 9312523536, 24360095
Mail: ssofs_dfs@dfs.gov.in

Centre For Fingerprinting and Diagnostics (CDFD), Hyderabad
Dr. Madhusudan Nandineni
Scientist and In-charge
Ph: 24749331, 24749330
Mail: dsp@cdfd.org.in

DNA Labs India, Hyderabad
Ravi Kiran Reddy
Ph: 9395142800
Mail: info@dnalabsindia.org

Bio-Axis DNA Research Centre
Ph: 9246338983
Mail: drc@dnares.in

Truth Labs, Hyderabad
Ph: 9490690222, 04023390999
Mail: gandhi@truthlabs.org

Notes

[1]http://timesofindia.indiatimes.com/topic/DNA-Profiling-Bill

[2]http://www.gene-watch.org/blog/post/India-May-Soon-Have-a-National-DNA-Database.aspx

[3]Amy Miller, “Google’s new tool shows which countries are censoring the internet” http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202472346375

[4]Paternity case: No relief for N D Tiwari as Supreme Court allows DNA test http://www.indianexpress.com/news/paternity-case-no-relief-for-n-d-tiwari-as/762146/

[5]Paternity case: ND Tiwari to provide blood sample for DNA test http://www.deccanherald.com/content/165408/paternity-case-nd-tiwari-provide.html

[6]http://www.truthlabs.org/

[7]Bio-Axis Research Centre, http://www.dnatestinginindia.ewebsite.com

[8]Sujatha Byravan , A public, private database http://www.indiatogether.org/2009/sep/hrt-dnadb.htm

[9]Vibhor Verdhan, Data Retention Policies- An Emerging Requirement & Various Compliances http://www.legalserviceindia.com/article/l428-Data-Retention-Policies.html

[10]Andrei Kislyakov , DNA testing: pros & cons http://en.rian.ru/analysis/20090104/119294260.html

[11]Vibhor Verdhan, Data Retention Policies- An Emerging Requirement & Various Compliances

[12]DNA Profiling Bill http://dbtindia.nic.in/DNA_Bill.pdf

Click here for the Survey Questions

Deoxyribonucleic acid (DNA) is the main constituent of the chromosomes of all organisms, and is found in the form of a double helix within the nucleus of every somatic cell. Consequently, a small sample of human body cells can be decoded to reveal a pattern that is shared only by a genetically identical twin. The DNA of each individual does not change during his lifetime. This technique is commonly used in police investigations and is termed ‘DNA fingerprinting. For more see the Wikipedia definition of DNA.

For more details visit https://cis-india.org/internet-governance/blog/privacy/dna-overview

Consumer Privacy in e-Commerce

sahana — 2012-03-28T04:53:17Z

Looking at the larger picture of national security versus consumer privacy, Sahana Sarkar says that though consumer privacy is important in the world of digital technology, individuals must put aside some of their civil liberties when it comes to the question of national security, as it is necessary to prevent societal damage.

What is Consumer Privacy?

In today’s digital economy generating consumer information is inevitable. Though some companies use the personal information they obtain to improve and provide more services to consumers, many companies use the information in an irresponsible manner.

In countries that do provide legal protection for consumer privacy, it is never protected as an absolute right. Consumer privacy is not considered an absolute right for three reasons:

What constitutes consumer privacy is culturally, contextually, individually defined
Consumer privacy often conflicts with other market rights
The ownership of a consumer's private information is debated — as consumer's believe they own the information and businesses believe they own the information.

In order to understand consumer privacy it is useful to outline the privacy expectations and strategies of both consumers and businesses, and to also examine the protection measures taken by firms to safeguard consumer information. The major privacy concerns held by consumer's can be broken down into three main domains:

Consumers want to be informed about the type of information that is being collected from them.
Consumers need to know that they a certain degree of control over the personal information that is being collected.
Consumers need to be assured that their personal information will be secure and will not be abused or stolen.

Though privacy has been defined by many as the "right to be let alone", its application in today’s modern world is not that straightforward. We live in a world where our purchasing behavior, both online and offline, is shared and used invisibly. For instance, if an individual uses a social networking site, it is possible for a third party application to access personal information that is shared. Similarly, if an individual uses a warranty card or loyalty card during a purchase, it is possible for third parties, like data brokers, to collect and use the individuals' personal information.

For instance,15 consumer privacy groups have filed a complaint against Facebook for limiting user's ability to browse anonymously. The complaint was regarding the fact that users only had the choice to designate personal information as publicly linkable, or to not provide information at all. Though Facebook claims to ensure users control over their personal data by allowing users to choose their privacy settings, it does not clarify that these setting can change at any given point. Moreover, the latest privacy embarrassment that hit Facebook proves again that Facebook does not protect users’ privacy. A few weeks ago Facebook admitted to passing personal information of its users onto different gaming applications. These gaming applications have in turn passed the information on to advertisers who otherwise could not have accessed the information.[1]

Breach of Privacy in Information Collection

Internet users often fear the loss of personal privacy, because of the ability businesses and their websites have to collect, store, and process personal data. For example, sites extract information from consumers through a form, and then record data about their user’s browsing habit. After collecting user information, the sites match the data with their personal and demographic information to create a profile of the user’s preferences, which is then used to promote targeted advertisements or provide customized services. The sites might also engage in web lining through which they price a consumer according to their profiles.

Online there are two main ways in which sites collect user information:

Sites collect information directly through a server software. Sites often use automatic software logs to do this.
A third party extracts information from the site without the consumer’s knowledge. Sites often place cookies on websites to extract user information.

Automatic software logs and third party cookie placement are two overlooked aspect of information collection. Cookies work by collecting personal information while a user surfs the net, and then feeds the information back to a Web server. Cookies are either used to remember the user, or are used by network advertising agencies to target product advertisements based on long term profiles of user’s buying and surfing habits. An example of a website that uses cookies is 'double click'. Web bugs are used by advertising networks to add information to the personal profiles stored in cookies. Web bugs are also used in junk email campaigns to see how many visits the site gets. Cookies and web bugs are just two out of hundreds of technologies used to collect personal information. [2]

Challenges Posed by Protection of Consumer Privacy

In conclusion, I would like to talk about the difficulty in maintaining a balance between the legal collections of information and protecting privacy of consumers. Above I demonstrated how this conflict arises between businesses and consumers — and is rooted in businesses wanting personal information for commercial reasons, and a user wanting protection and control over their own information. This conflict can also arise between consumers, businesses, and political bodies. An example that demonstrates this is the ongoing conflict between RIM (Research in Motion) and the Government of India. The Government of India has issued a warning against RIM saying that it would suspend its blackberry operations if they do not adhere to the Indian laws and regulations.

The Ministry of Home Affairs is demanding that RIM allow access to encrypted content that flows in and out of India. In other words the Government of India wants RIM to allow the security forces to have access to data sent using Blackberries by reducing encryption levels, or by providing the government with the decryption keys. The demand by the government is somewhat ironic as Blackberry manufacturers have developed the Blackberry encryption key to protect the consumers’ privacy during any business deal, so that information is not compromised. On the other side of the debate, the government is demanding access to Blackberry communications, because their inability to decrypt the codes makes countering the threats to national security difficult. This is especially true for a country like India, which is constantly facing threats from Maoists, and extremist Islamic groups.

This example highlights an important question: what is more important — national security or consumer privacy? In 2010, RIM agreed to negotiate access to consumer messages only where access requests are within local laws. Blackberry also agreed to not make any specific deals with consumers, and to make its enterprise systems security and confidentiality non-negotiable.

Conclusion

Though, consumer privacy is very important especially in a world of digital technology, however, when we speak of national security, I feel that individuals must set aside some of their civil liberties — at least to the extent that it is necessary to prevent societal damage. For a clearer understanding of national security vs consumer privacy look at the case of RIM Vs Indian Government in the following sites:

[1]http://www.ft.com/cms/s/0/198599e6-dc5f-11df-a0b9-00144feabdc0.html#axzz1O00LowtN

[2]http://cyber.law.harvard.edu/olds/ecommerce/privacytext.htmlFor an overview of some of these new data-collection technologies, along with some information on privacy-enhancing technologies such as P3P, see Developing Technologies.

For more details visit https://cis-india.org/internet-governance/blog/privacy/consumer-privacy-e-commerce

Video Surveillance and Its Impact on the Right to Privacy

Vaishnavi Chillakuru — 2011-09-29T05:35:56Z

The need for video surveillance has grown in this technologically driven era as a mode of law enforcement. Video Surveillance is very useful to governments and law enforcement to maintain social control, recognize and monitor threats, and prevent/investigate criminal activity. In this regard it is pertinent to highlight that not only are governments using this system, but residential communities in certain areas are also using this system to create a safer environment.

However, this move is fundamentally opposed by many civil rights and privacy groups across different jurisdictions and have expressed concern that by allowing continual increases in government surveillance of citizens that we will end up in a mass surveillance society, with extremely limited, or non-existent political and/or personal freedoms.

European Union

The Data Protection Directive [1]of 1995, a Directive was issued by the European Union (EU) to regulate the processing and free movement of personal data. In pursuance with this Directive, every country of the EU passed a legislation to govern the protection of personal data. In this regard, the United Kingdom (UK) enacted the Data Protection Act (DPA) in 1998 and the same was brought into force in the year 2001.

The DPA sets forth eight, Data Protection Principles (DPP)[2] to protect personal data in the public sphere. Although video surveillance has not been explicitly referred to in the legislation, the definition given by the DPA is broad enough to encompass it. The application of these principles to video surveillance has been made explicit through the publication of the CCTV Code of Practice (CoP) by the information commissioner. The CoP does not apply to surveillance cameras used for household purposes. Images captured for recreational purposes with a camera, video recorder, etc., are also exempt. The main features of the CoP have been summarized below:

It is important to ascertain who has the responsibility for the control of the images i.e., deciding what is to be recorded, how the images should be used and to whom they may be disclosed. The body which makes these decisions is called the data controller and is responsible for the compliance with the DPA. The body has to notify the information commissioner as to who the data controller is.
An impact assessment should be done to evaluate the scheme’s impact on the privacy rights of the public. While conducting such an assessment, the data controller should take into account what benefits can be gained, whether better solutions exist, and what effect it may have on individuals. The results of the assessment should be used to determine whether video surveillance is justified and if so, how it should be operated.
The camera equipment should be chosen so as to fulfill the purposes for which the surveillance is being carried out. They should have the necessary technical specification so that the images are of appropriate quality. The camera should be positioned in such a way that only those areas which are intended to be the subject of surveillance are covered.
Viewing of live feed must be restricted to authorized personnel only. The data controller should try and protect the images from public view. Disclosure of recorded images should also be controlled and limited to the purpose for which the surveillance was set up. All other requests for viewing images should be considered carefully and balanced against the privacy rights of other individuals who may be affected by the disclosure of the images.
The DPA does not prescribe any minimum or maximum period of retention. It should be ascertained keeping in mind the purpose for which the surveillance system was set up. However, the images should not be kept for longer than is strictly necessary.
There should be prominently placed signs to let people know that they are in an area which is under video surveillance. This can be supplemented by an audio announcement in places where public announcements are already being used, such as in stations. Systems in public spaces and shopping centres should have signs giving the name and contact details of the company, organisation or authority responsible.
Staff operating the system needs to be aware of the rights of the individual under the DPA.

Canada

Canada has two federal laws which deal with privacy — the Privacy Act, 1985 and the Personal Information Protection and Electronic Documents Act, 2000 (PIPEDA). The former protects privacy rights by limiting the collection, use and disclosure of personal information by the federal government departments and agencies whereas the latter deals with the collection, use and disclosure of personal information by private sector organizations. In addition to these two legislations, every province or territory has their own privacy legislations.

A privacy commissioner is appointed to receive and investigate complaints filed by Canadian citizens pertaining to allegations of violation of the Acts. They also conduct research into privacy issues and promote awareness. The privacy commissioner reports directly to the House of Commons and the Senate. Every province or territory may also have its own commissioner or ombudsman authorized to investigate complaints. The Office of the Privacy Commissioner of Canada (OPC) published two sets of guidelines in order to define and circumscribe the use of video surveillance and ensure that the impact on privacy is minimized.

The first set of guidelines is meant to guide the regulation of video surveillance (by law enforcement agencies) in public spaces i.e., in places where there is free and unrestricted access to everyone. These guidelines were drawn up after extensive discussions between the OPC and the Royal Canadian Mount Police (RCMP). However, these guidelines are to be considered merely as an aid and notwithstanding anything stated in the guidelines, the RCMP has the right to carry out its functions as it deems fit. Some of the important pointers are[3]

Video surveillance should only be used to address a "real and pressing problem" which is of sufficient in magnitude so as to warrant the overriding of the privacy rights of citizens. Hence, there should be "real and verifiable" instances of crime or concern for public safety.
Video surveillance should be conducted only as a last resort i.e., in circumstances where there in no other less privacy-intrusive alternative.
A "privacy impact assessment" should be conducted beforehand to assess the degree of interference that will result due to the video surveillance.
Relevant stakeholders (for example, members of the communities that will be affected by the surveillance systems) should be considered before arriving at a decision.
Video surveillance must comply with all applicable laws including over arching laws such as the Canadian Charter of Rights and Freedoms.
The video surveillance should be conducted in such a way that impact on the privacy rights of citizens is minimized. For example, limited use of video surveillance (e.g., for limited periods of day, public festivals, peak periods) should be preferred to be always on surveillance if it will achieve substantially the same result.
The public should be informed that they are under surveillance. Clear signs should be put up mentioning the perimeter of the surveillance areas, the person responsible for surveillance and his contact details in case of any queries.
Security of the equipment and images should be assured.
People whose images are recorded should be able to request access to their recorded personal information.

The second set of guidelines is with respect to video surveillance in private sector organizations. These guidelines apply to overt video surveillance of the public by private sector organizations in publicly accessible areas. They do not apply to covert video surveillance nor do they apply to the surveillance of employees.

"Determine whether a less privacy-invasive alternative to video surveillance would meet your needs.
Establish the business reason for conducting video surveillance and use video surveillance only for that reason.
Develop a policy on the use of video surveillance.
Limit the use and viewing range of cameras as much as possible.
Inform the public that video surveillance is taking place.
Store any recorded images in a secure location, with limited access, and destroy them when they are no longer required for business purposes.
Be ready to answer questions from the public. Individuals have the right to know who is watching them and why, what information is being captured, and what is being done with recorded images.
Give individuals access to information about themselves. This includes video images.
Educate camera operators on the obligation to protect the privacy of individuals.
Periodically evaluate the need for video surveillance."

United States of America

Statutory laws governing the regulation of video surveillance in America are scarce. While there are some state laws which regulate aspects of public video surveillance, there are virtually no federal laws which directly deal with it. However, video surveillance implicates certain constitutional doctrines — especially the first and the fourth amendments. Although it cannot be denied that the liberties enshrined by these amendments can be severely affected by continuous surveillance, so far, the American courts and jurisprudence on the subject have been very permissive.

Another important directive is the "Fair Information Practices" (FIP) originating from the recommendations written by the United States Government which provide certain rights to individuals with respect to the use and dissemination of personal information. Although these guidelines do not have the force of law, they can prove to be a valuable guide for the treatment of any government-held record containing personally identifiable information. The rights of individuals listed by the FIP, in their most basic form, have been given below:[4]

"Notice and awareness of the purpose of data collection, and how such information is used;
Consent to the collection of personal information, and choice concerning how it is used;
Access to and participation in the process of data collection and use, including the right to correct errors;
Integrity and security adequate to protect the information against loss or misuse; and
Redress and accountability for injury resulting from loss or misuse of personal information."

Also, the American Bar Association, in 1999, published standards for technologically-assisted physical surveillance, including video surveillance. Some of the key points of these guidelines are given below:

While regulating the use of video surveillance for law enforcement purposes, certain factors should be kept in mind. For example, the nature of the law enforcement objective or objectives sought to be achieved, the extent to which the surveillance will achieve the law enforcement objectives, the nature and extent of the crime involved, etc.
The extent to which the surveillance invades privacy should be assessed. While conducting such an assessment, care should be taken to enhance the privacy of the location under surveillance by taking into consideration the nature of the place, activity, condition, or location.
Alternate measures should be preferred over video surveillance in order to maintain a balance between the right to privacy and the need for surveillance.
Notice of the surveillance should be given when appropriate.
The scope of the surveillance should be limited to its authorized objectives and be terminated when those objectives are achieved.

Australia

Neither the Australian Federal Constitution nor the Constitutions of the six states and two territories contain any express provisions relating to privacy. However, there are several state and federal privacy laws governing specific sectors and aspects. The primary federal statute is the Privacy Act of 1988 (PA). This statute was enacted in a bid to give effect to Australia's commitment to the International Covenant on Civil and Political Rights and the Organization for Economic Cooperation and Development (OECD). There are four key areas of application of the Act out of which only two are relevant in the context of video surveillance. The first is the eleven Information Privacy Principles (IPPs), based on the OECD Guidelines. These principles are applicable to federal government agencies. The second is the National Privacy Principles (NPP) which regulates private sector organizations. However, private organizations can set forth their own "code of practice" and get it approved by the privacy commissioner as long as it does not go against the broad framework laid down by the NPPs.

Apart from the PA, each state or territory may have its own laws or practices regarding video surveillance. For instance, covert video surveillance in New South Wales is governed by the Workplace Video Surveillance Act, 1998. The Government of New South Wales also published a report on CCTV in public places. Similarly, Victoria is governed by the Surveillance Devices Act, 1999 and Western Australia by the Surveillance Devices Act, 1998. However, South Australia, Tasmania, Northern Territory and Australian Capital Region have no legislation dealing with the use of video surveillance.

Japan

The Constitution of Japan does not contain any express provisions guaranteeing the right to privacy. Till 2003, even statutory law in the field of data protection was non-existent and the government followed a policy of self regulation. It was only in 2003 that the Japanese Parliament enacted the Protection of Personal Information Act. The law underlying privacy in Japan[6] protects only personal information that is obtained and held by administrative agencies, private agencies. It seeks to set forth penal provisions in order to curb leakage of personal information by the government. The subsequent amendments to this Act have widened its scope to cover data that is paper based as well as computerized. Therefore, it can be said that the instant legislation is broad enough to encompass video surveillance data as well.

In this regard it is set forth that there exists no consolidated law to govern video-surveillance systems. Nevertheless, Japan uses video surveillance systems in order to assist the law enforcement agencies. The National Police Agency uses a video surveillance system called the "N system"[7] in order to record license plate numbers of vehicles on roads, highways, etc. This facilitates effective and efficacious law enforcement in Japan. Furthermore, Tokyo police have been operating surveillance cameras on utility poles and buildings to monitor pedestrians in the several densely populated districts of the city.[8] However, this mechanism has been challenged severely by litigants and many privacy groups in the court of law.

Conclusion

We have now moved into an age where security seems to be the primary issue for most countries and their citizens. Video surveillance is increasingly being used to assuage the fears of the citizens and bring perpetrators to justice. In such a scenario, the issue of privacy rights of individuals seems to have taken a backseat. While some countries such as Canada and Britain have attempted to strike a balance between the need for surveillance and the privacy rights of the people, other countries such as the United States of America and Japan do not seem to have made much progress in terms of creating video surveillance norms or regulations to protect the privacy rights of citizens.

Considering the pressing need for video surveillance to address national security issues, India surprisingly has no laws on the same. In this regard, India needs to draw from the experience of the United Kingdom and Canada. The first step is to enact laws permitting video surveillance.

These laws should be tightly worded and strictly connoted, considering the encroachment on civil liberties. Further, in order to balance security with privacy, the next step is to create an office for the information commissioner. It should be created and powers should be conferred to ensure that the privacy related disputes are handled efficiently and expeditiously. Furthermore, the misuse of the powers conferred upon surveillance authorities should be deterred by giving further powers to the commissioner to impose pecuniary liability.

Bibliography

European Union

Canada

United States of America:

Australia:

Japan

https://www.privacyinternational.org/article/phr2006-japan#[45]

Notes

[1]Directive 95/46/EC.

[2]See http://www.ico.gov.uk/for_organisations/data_protection/the_guide/the_principles.aspx (eight data protection principles)

[3]Full guidelines: http://www.priv.gc.ca/information/guide/vs_060301_e.cfm.

[4]Full guidelines: http://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_standards_taps_blk.html#9.

[5]http://www.proactivestrategies.com.au/library/Loss%20Prevention/Video%20Surveillance%20National%20article.PDF.

[6]This law extends to private businesses, government organizations and independent administrative agencies.

[7]540 locations on expressways and major highways throughout the country; it automatically records the license plate number of every passing car.

[8]This regime has also been litigated upon thoroughly with lawyers claiming the same to be unconstitutional.

For more details visit https://cis-india.org/internet-governance/blog/privacy/video-surveillance-privacy

Privacy Matters, Guwahati — Event Report

praskrishna — 2011-08-26T10:31:08Z

On June 23, a public seminar on “Privacy Matters” was held at the Don Bosco Institute in Karhulli, Guwahati. It was organised by IDRC, Society in Action Group, IDEA Chirang, an NGO initiative working with grassroots initiatives in Assam, Privacy India and CIS and was attended by RTI activists and grass roots NGO representatives from across the North Eastern region: Manipur, Arunachal Pradesh, Tripura, Nagaland, Assam and Sikkim. The event focused on the challenges and concerns of privacy in India.

Unfortunately many of the scheduled invitees had to drop out owing to developments on the Lokpal issue at the Centre, and simultaneously Guwahati was witnessing unrest following an agitation over land rights that left three persons dead.

Welcoming the participants, Prashant Iyengar, lead researcher for Privacy India, gave an introduction to the objectives of Privacy India, and briefed the gathering about the thematic “Privacy Matters” consultations previously held across the country in Kolkata, Bangalore and Ahmedabad. Mr. Iyengar also gave a background to issues that India is facing in concern with privacy, explaining the many contexts that privacy can be found in, and raising questions such as: Why is privacy important? How can it be maintained with the way technology is encroaching upon our lives? And how can we make privacy laws functional?

"Privacy objectives are to raise awareness, spark civil action and promote democratic dialogue around privacy challenges and violations in India. One of Privacy India’s goals is to build consensus towards the promulgation of a comprehensive privacy legislation in India through consultation with the public, legislators and the legal and academic community."

Prashant Iyengar, Privacy India.

Event Sessions

The structure of the event was one of open discussion, with presentations made by those who wanted to share. Throughout the day, the conversation fell into three main topics including: privacy and the RTI, privacy and the UID, and privacy and surveillance in the context of North East India.

Privacy and the RTI

Prashant Iyengar opened the discussion on privacy and the RTI by highlighting the tension between the need for transparency of the State, and the need to protect the privacy of public figures. For many participants privacy and transparency was a new concept that they had just started thinking about. Participant Rakesh (HRLN, Manipur) spoke on the shortcomings that he saw in the RTI Act noting that though the RTI brings some transparency to society, many citizens still do not understand the extent of their Right to Information as it is protected under the Act. Furthermore, the RTI Act is still not applied equally across the country, and the transparency that the RTI tries to achieve is still in very nascent stages. Lowang, a participant from Aru nachal Pradesh, shared the importance of drawing a line between privacy and transparency when it comes to information related to education and health. Anjuman Azra Begum, a research scholar working on indigenous people rights, noted the irony of the RTI as it is meant to bring transparency to the state, yet all ministers and MLA’s take an oath of secrecy, not transparency. Anjuman also spoke on the fact that the RTI often fails to protect the privacy of sensitive issues, such as sexual balance. She echoed Rakesh’s comment on the inaccessibility of the RTI, sharing that for a common person to exercise his/her rights is a very daunting task. Anthony Debbarmun, a human rights activist from Tripura noted that he felt that the North Eastern states are by and large seen as resource (land) by the centre and has shown no concern for citizens and their well-being. Government is seen as a dictator in this region, hence the question — Transparency for whom?, Privacy for Whom? The distinction between the transparency brought about by the RTI and individual privacy was also made. It was pointed out that the RTI is concerned with transparency of the State, but individual privacy is separate from this concept.

Personal Experiences Shared

Anjuman Azra Begum shared her sister’s experience with the RTI. Her sister had applied for a job in 2008. Their family filed an RTI for details of the procedure, but was denied details by the RTI officer, who said that furnishing details would violate the privacy of other candidates. This example raises questions about when it is appropriate for RTI officers to withhold information in the name of privacy, and what mechanisms can be put in place to ensure that the RTI does not use privacy as a way to deny information. Lowang also shared his experience with the RTI. He had filed an RTI asking for answer sheets because he doubted the appointment of police personnel. He was told that the cost in total would be Rs.2000, when in reality each sheet costs Rs.2 — the misconstruing of facts was another example of how RTI officials restrict access information indirectly. From these examples the concern about RTI officials using privacy as an excuse to deny information was brought to the surface. To highlight the problems with the current implementation of the RTI and the lack of basic knowledge of how to use the RTI Mhao Lotha from the DICE Foundation shared a personal experience of his friend who had filed an RTI against the fishery department, and the RTI official simply shouted at her. L. Rima told a similar story as Mhao Lotha. In her experience the RTI is good in theory, but in practice it has become a commercial platform, where officers pay money to applicants for RTI cases to be taken off.

From the discussion and the shared experiences it was clear that the RTI, although a strong law on paper, still faces many challenges in implementation that a privacy law could also face, and that the fact that if more privacy is brought into the RTI, it will become yet another way for the State to avoid disclosing information.

Questions to Consider

Can a privacy law be made to be functional in the same way that the RTI is functional?
In terms of the RTI who should have more privacy? Who should be more transparent? Can NGOs be held accountable under the RTI?
What mechanism should be established to enforce the balance between privacy and transparency?

Privacy and Security/Law Enforcement in the North East of India

Another important discussion held during the conference was the practices of law enforcement in the North East, security, and privacy. Because the North East is in a state of armed conflict several laws such as the Armed Forces Special Powers Act, Sedition Act and provisions in the IPC give immunity to security forces. This has led to gross violation of citizens’ privacy by law enforcement agencies — as the acts give large amounts

of power to law enforcement agencies with little or no accountability, and the acts are often misused. Furthermore, the security laws that exist in the North East explicitly prohibit access to individual personal information. For example, in the Assam Police Manual, which is followed by police in the North East — no papers can be given out to the public except to the investigation officer — this includes personal information such as medical records and post-mortem reports. Anjuman shared an example of how this rule violates individual privacy. In her example, a victim was not allowed access her own medical report, but her medical records were being circulated among police, doctors, and media. This example highlights how privacy and the right to information can go hand in hand as it was the victim’s right to access her own medical file, and at the same time getting access to her own medical file is an act of personal privacy protection.

Personal Experiences Shared

Participants shared how individual privacy is often violated by the army, as it is allowed to enter and search any space without warrant, if there is any type of “suspicion”. They also shared how phone tapping and random monitoring is a common practice by both the army and civil police. For example, one day the police recorded a conversation by Director of the Police, Wireless who was giving a lecture on how to lead an effective agitation. The transcript was handed to the high court and the director punished. Other examples include policemen frisking women in public, newspapers publishing police frisking women in public, and law enforcement agencies compelling pregnant women to give birth in open in front of people. The discussion surrounding privacy and security/law enforcement highlighted an important way in which privacy is violated in the North East. The unregulated action of law enforcement acts as a very real and dangerous way in which individual privacy is violated on a daily basis.

Questions to Consider

Can privacy legislation regulate the acts of law enforcement agencies?
Will privacy legislation be implemented differently in the North East because of the armed conflict?
Will a privacy law supersede other laws such as the AFSPA?

Privacy and the UID

During the conference the discussion also briefly focused on the UID and privacy. It was shared that there had yet to be UID consultations in the North East of India. The only information individuals had about the UID was that it was going to allow individuals to access BPL benefits more easily.

Questions around the UID included: why is the UID needed for citizens living within their own country? How will the UID impact and help families who send their children to gather rations from the ration shops? What is the connection between the UID and the expected privacy law? What is the connection between the UID and intelligence agencies? What would UID mean to people living in border areas?

Conclusion

Privacy as a Fundamental Right

In the closing discussion Prashant Iyengar shared different examples of privacy in Indian case law, and the various ways in which the Supreme Court has defined privacy as a right that is implicit in the right to life. The participants discussed what privacy means to them, and what they thought a right to privacy should entail. Among the points raised, it was brought up that privacy should be a right that is legally protected for sovereign individuals. The law should also include parameters and limitations in order to protect an individual’s autonomy. Furthermore, privacy should be understood and linked to the concept of human rights and individual rights. From the closing session, and the above sessions many themes and questions pertaining to privacy came out that will need to be addressed when considering the way forward for a privacy legislation including:

Property rights and privacy
Privacy rights of minorities
Privacy and the UID
Privacy and law enforcement agencies
Privacy as a fundamental right
The interplay of privacy law and traditional law

Download the Event Report here [PDF, 178 kb]

For more details visit https://cis-india.org/internet-governance/blog/privacy/privacy-guwahati-report

Right to Privacy Bill 2010 — A Few Comments

elonnai — 2012-03-22T06:26:14Z

Earlier this year, in February 2011, Rajeev Chandrasekhar introduced the Right to Privacy Bill, 2010 in the Rajya Sabha. The Bill is meant to “provide protection to the privacy of persons including those who are in public life”. Though the Bill states that its objective is to protect individuals’ fundamental right to privacy, the focus of the Bill is on the protection against the use of electronic/digital recording devices in public spaces without consent and for the purpose of blackmail or commercial use.

Specific Recommendations

The use of electronic recording devices in public is an important and expansive aspect of privacy, which is yet to be directly covered by Indian law. Though the Bill addresses the basic usage of electronic devices with built-in cameras, it frames the violation as a personal violation. In doing so, the Bill has taken a punitive approach, making it criminal to take photographs in situations outside of the laid-out regulations, rather than protective in nature, i.e., working to protect individuals from harassment and blackmail, and offer forms of redress to those damaged.

The Bill fails to address scenarios such as Google street view, satellite photographs, news channels, and live feeds at events and conferences. In these situations live data is being transmitted and posted on the Web for public to view by the media. When looking at the dilemma of photographs being taken in public by the media, the privacy interests are different to those that are based on control of personal information alone. They are substantive, as opposed to informational, and engage directly with individual dignity, autonomy, and the freedom of expression. For example, the interest in freedom of expression encompasses both those of the photographers and journalists producing material for his/her journal. Can a journalist print a photograph taken in a public space — of a public figure, which the public figure did not consent to, and which that person considers defamatory?

Interestingly, Europe has strong laws regulating the taking of photographs in public spaces, but these rules are covered by the Protection from Harassment Act, 1997 (UK), which speaks specifically to the media’s behaviour towards public figures — or they fall under a tort of misuse. In the US taking photographs only becomes an issue in the use of the photograph. Essentially anyone can be photographed without consent except when they have secluded themselves in places where they have a reasonable expectation of privacy such as dressing rooms, restrooms, medical facilities, or inside a private residence. This legal standard applies regardless of the age, sex, or other attributes of the individual. Once a photograph is taken, and if that photograph is used for commercial gain without consent or publicizes an otherwise private person inappropriately, then that person can be held liable under the tort of misappropriation.

Specific Comments to the Bill

Misguiding Title

The title of the Bill is, the Personal Data Protection Bill, 2006," but the scope of the Bill is focused on regulating the use of electronic recording devices, and it does not include many aspects of privacy. So we recommend that the title of the Bill be modified to "The Electronic Recording Devices Bill, 2010".

Inappropriate Blanket Use of Privacy

The introduction to the Bill states that its purpose is "for the protection of the right to privacy of persons including those who are in public life so as to protect them from being blackmailed or harassed or their image and reputation being tarnished in order to spoil their public life and for the prevention of misuse of digital technology for such purposes and for matters connected therewith and incidental thereto."

Comment: Notwithstanding the fact that violations of privacy extend beyond blackmail, harassment, and defamation, and that digital technologies are not the only vehicles for privacy violations, it is important to qualify that privacy is not a blanket right, and that for public persons, the privacy that they are afforded is determined by balancing their interest against the public interest.

Narrow Definition of Public Figures

Section 2 (b) of the Bill states: "persons in public life" includes the representatives of the people in Parliament, state legislatures, local self government bodies, and office bearers of recognized political parties

Comment: Persons in public life include persons beyond the political sphere, specifically those in higher positions that influence the behaviour, lifestyles, and culture of the general population. Thus, we recommend that this definition be extended to include actors, actresses, athletes, artists, and musicians, CEOs, and authors.

Insufficient Limits to the Right to Privacy

Section 3 (1) states: “Notwithstanding anything contained in any other law for the time being in force every person, including persons in public life, shall have the right to privacy which shall be exclusive, unhindered and there shall be no unwarranted infringement thereof by any other person, agency, media or anyone:

Provided that sub-section (1) of section 3 shall not apply in cases of corruption, and misuse of official positions by persons in public life.

Comment: We recommend that the right to privacy, as any right, need not be identified as exclusive or unhindered. The right to privacy must be determined on a case by case basis relative to the public interest, and, while cases of corruption and misuse of official position by persons in public life certainly qualify, they do not encompass the wider variety of situations in which an individual’s right to privacy should be limited. For instance, if a public figure speaks out on an issue in a way that contradicts an earlier position that was captured on video, shouldn’t that be allowed to be made public? If a public figure is photographed in a morally questionable position, shouldn’t that be allowed to be made public? Indeed, even for private individuals, privacy is a matter of context. In airports and other sensitive public places it is commonly accepted that an individual’s right to privacy can be limited. If an individual has a disease such as HIV, under what circumstances should some or all of the greater public should be informed and their right to privacy may be limited?

Limited Scope of Technology

Section 4 of the Bill states: "No person shall use a cellular phone with an inbuilt camera, if it does not produce a sound of at least 65 decibels and flash a light when used to take a picture of any object or person, as the case may be.

Comment: We recommend that this clause clarifies if only cellular phones, and not cameras, computers, or other devices with built-in cameras are required to produce the sound of at least 65 decibels.

Overly Complicated Clauses

Section 5 of the Bill states: Notwithstanding anything contained in any other law for the time being in force, no person shall make digital recording or take photographs or make videography in any manner whatsoever of:

Section 5(a): any part or whole of a human body which is unclothed or partially clothed without the consent of the person concerned.

Section 5 (b): any part or whole of a human body at any public place without the consent of the person concerned and

Section 5 (c): the personal and intimate relationship of any couple in a home, hotel, resort, or any place within the four walls by hidden digital or other cameras and such other instruments, or any place within the four walls by hidden digital cameras and such other instruments…with the intent of blackmail or of making commercial gains from it or otherwise.

Comment: Section 5 currently lists certain circumstances in which photographs are not allowed to be taken of individuals in public without consent if they are to be used for the purpose of commercial gain or blackmail. Blackmail or commercial gains are not the only ways in which digital recordings of people can be misused. Certainly, taking such pictures to post for purposes of hurting one’s reputation or causing humiliation is as reprehensible as taking pictures for commercial gain, so the provision is too narrow. It may also be overboard, because a person may be captured in an artistic or political photograph but have, for example, bare arms or legs. That would be a picture of a part of a human body at a public place. We recommend that the list of offences include misappropriation and false light, and that the manner of the picture-taking not be limited to clauses (a) to (c) above.

Section 5 is the first instance in which the use of digital recordings for commercial gain has been mentioned as a violation in the Bill. We recommend that commercial gain as a violation should be added to the introduction of the Bill.

For more details visit https://cis-india.org/internet-governance/blog/privacy/privacy-bill-2010

Privacy & Media Law

Sonal Makhija — 2012-12-14T10:26:51Z

In her research, Sonal Makhija, a Bangalore-based lawyer, tries to delineate the emerging privacy concerns in India and the existing media norms and guidelines on the right to privacy. The research examines the existing media norms (governed by Press Council of India, the Cable Television Networks (Regulation) Act, 1995 and the Code of Ethics drafted by the News Broadcasting Standard Authority), the constitutional protection guaranteed to an individual’s right to privacy upheld by the courts, and the reasons the State employs to justify the invasion of privacy. The paper further records, both domestic and international, inclusions and exceptions with respect to the infringement of privacy.

Introduction

Last year’s satirical release, Peepli [Live], accurately captured what takes place in media news rooms. The film revolves around a debt-ridden farmer whose announcement to commit suicide ensue a media circus. Ironically, in the case of the Radia tapes, the same journalists found themselves in the centre of the media’s frenzy-hungry, often intrusive and unverified style of reporting.[1] Exposés, such as, the Radia tapes and Wikileaks have thrown open the conflict between the right to information, or what has come to be called ‘informational activism’, and the right to privacy. Right to information and the right to communicate the information via media is guaranteed under Article 19(1) (a) of the Constitution of India. In State of Uttar Pradesh v Raj Narain,[2] the Supreme Court of India held that Article 19(1) (a), in addition, to guaranteeing freedom of speech and expression, guarantees the right to receive information on matters concerning public interest. However, more recently concerns over balancing the right to information with the right to privacy have been raised, especially, by controversies like the Radia-tapes.

For instance, last year Ratan Tata filed a writ petition before the Supreme Court of India alleging that the unauthorised publication of his private conversations with Nira Radia was in violation of his right to privacy. The writ, filed by the industrialist, did not challenge the action of the Directorate-General of Income Tax to record the private conversations for the purpose of investigations. Instead, it was challenging the publication of the private conversations that took place between the industrialist and Nira Radia by the media. Whether the publication of those private conversations was in the interest of the public has been widely debated. What the Tata episode brought into focus was the need for a law protecting the right to privacy in India.

India, at present, does not have an independent statute protecting privacy; the right to privacy is a deemed right under the Constitution. The right to privacy has to be understood in the context of two fundamental rights: the right to freedom under Article 19 and the right to life under Article 21 of the Constitution.

The higher judiciary of the country has recognised the right to privacy as a right “implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21”. The Indian law has made some exceptions to the rule of privacy in the interest of the public, especially, subsequent to the enactment of the Right to Information Act, 2005 (RTI). The RTI Act, makes an exception under section 8 (1) (j), which exempts disclosure of any personal information which is not connected to any public activity or of public interest or which would cause an unwarranted invasion of privacy of an individual. What constitutes an unwarranted invasion of privacy is not defined. However, courts have taken a positive stand on what constitutes privacy in different circumstances.

The purpose of this paper is to delineate the emerging privacy concerns in India and the existing media norms and guidelines on the right to privacy. At present, the media is governed by disparate norms outlined by self-governing media bodies, like the Press Council of India, the Cable Television Networks (Regulation) Act, 1995 and the Code of Ethics drafted by the News Broadcasting Standard Authority (NBSA). The paper examines the existing media norms, constitutional protection guaranteed to an individual’s right to privacy and upheld by courts, and the reasons the State employs to justify the invasion of privacy. The paper records, both domestic and international, inclusions and exceptions with respect to the infringement of privacy.

The paper traces the implementation of media guidelines and the meanings accorded to commonly used exceptions in reporting by the media, like, ‘public interest’ and ‘public person’. This paper is not an exhaustive attempt to capture all privacy and media related debates. It does, however, capture debates within the media when incursion on the right to privacy is considered justifiable. The questions that the paper seeks to respond to are: When is the invasion on the right to privacy defensible? How the media balances the right to privacy with the right to information? How is ‘public interest’ construed in day-to-day reporting? The questions raised are seen in the light of case studies on the invasion of privacy in the media, the interviews conducted with print journalists, the definition of the right to privacy under the Constitution of India and media’s code of ethics.

Constitutional Framework of Privacy

The right to privacy is recognised as a fundamental right under the Constitution of India. It is guaranteed under the right to freedom (Article 19) and the right to life (Article 21) of the Constitution. Article 19(1) (a) guarantees all citizens the right to freedom of speech and expression. It is the right to freedom of speech and expression that gives the media the right to publish any information. Reasonable restrictions on the exercise of the right can be imposed by the State in the interests of sovereignty and integrity of the State, 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. Article 21 of the Constitution provides, "No person shall be deprived of his life or personal liberty except according to procedure established by law." Courts have interpreted the right to privacy as implicit in the right to life. In R.Rajagopal v. State of T.N.[3]; and PUCL v. UOI[4], the courts observed that the right to privacy is an essential ingredient of the right to life.

For instance, in R. Rajagopal v State of Tamil Nadu, Auto Shankar — who was sentenced to death for committing six murders — in his autobiography divulged his relations with a few police officials. The Supreme Court in dealing with the question on the right to privacy, observed, that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of the country by Article 21. It is a ‘right to be left alone.’ "A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters.” The publication of any of the aforesaid personal information without the consent of the person, whether accurate or inaccurate and ‘whether laudatory or critical’ would be in violation of the right to privacy of the person and liable for damages. The exception being, when a person voluntarily invites controversy or such publication is based on public records, then there is no violation of privacy.

In PUCL v. UOI,[5]which is popularly known as the wire-tapping case, the question before the court was whether wire-tapping was an infringement of a citizen’s right to privacy. The court held that an infringement on the right to privacy would depend on the facts and circumstances of a case. It observed that, "telephone conversation is an important facet of a man's private life. Right to privacy would certainly include telephone-conversation in the privacy of one's home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law." It further observed that the right to privacy also derives from Article 19 for "when a person is talking on telephone, he is exercising his right to freedom of speech and expression."

In Kharak Singh v. State of U.P,[6] where police surveillance was being challenged on account of violation of the right to privacy, the Supreme Court held that domiciliary night visits were violative of Article 21 of the Constitution and the personal liberty of an individual.

The court, therefore, has interpreted the right to privacy not as an absolute right, but as a limited right to be considered on a case to case basis. It is the exceptions to the right to privacy, like ‘public interest’, that are of particular interest to this paper.

International Conventions

Internationally the right to privacy has been protected in a number of conventions. For instance, the Universal Declaration of Human Rights, 1948 (UDHR) under Article 12 provides that:

"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."

The UDHR protects any arbitrary interference from the State to a person’s right to privacy. Similarly, International Covenant on Civil and Political Rights, 1976 (ICCPR) under Article 17 imposes the State to ensure that individuals are protected by law against “arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. [7]

Thus, ensuring that States enact laws to protect individual’s right to privacy. India has ratified the above conventions. The ratification of the Conventions mandates the State to take steps to enact laws to protect its citizens. Although, human right activists have periodically demanded that the State take adequate measures to protect human rights of the vulnerable in society, the right to privacy has received little attention.

Similarly, Article 16 of the Convention on the Rights of the Child (CRC) provides protection to a minor from any unlawful interference to his/her right to privacy and imposes a positive obligation on States who have ratified the convention to enact a law protecting the same. India does have safeguards in place to protect identity of minors, especially, juveniles and victims of abuse. However, there are exceptions when the law on privacy does not apply even in case of a minor.

The right to privacy, therefore, is not an absolute right and does not apply uniformly to all situations and all class of persons. For instance, privacy with respect to a certain class of persons, like a person in public authority, affords different protection as opposed to private individuals.

Public Person

In case of a representative of the public, such as a public person, the right to privacy afforded to them is not of the same degree as that to a private person. The Press Council of India (PCI) has laid down Norms of Journalistic Conduct, which address the issue of privacy. The PCI Norms of Journalistic Conduct, recognises privacy as an inviolable human right, but adds a caveat; that the degree of privacy depends on circumstances and the person concerned.

In the landmark judge’s asset case, CPIO, Supreme Court of India vs Subhash Chandra Agarwal,[8] the court recognised the tension between the right to information and the right to privacy, especially, with respect to public persons. The case arose from an application filed by a citizen who was seeking information under the RTI Act on whether judges of high courts and Supreme Court were filing asset declarations in accordance with full resolution of the Supreme Court. The court held that information concerning private individuals held by public authority falls within the ambit of the RTI Act. It remarked that whereas public persons are entitled to privacy like private persons, the privacy afforded to private individuals is greater than that afforded to those in public authority, especially in certain circumstances.

The court commented:

"A private citizen's privacy right is undoubtedly of the same nature and character as that of a public servant. Therefore, it would be wrong to assume that the substantive rights of the two differ. Yet, inherent in the situation of the latter is the premise that he acts for the public good, in the discharge of his duties, and is accountable for them. The character of protection, therefore, afforded to the two classes — public servants and private individuals, is to be viewed from this perspective. The nature of restriction on the right to privacy is therefore, of a different order; in the case of private individuals, the degree of protection afforded is greater; in the case of public servants, the degree of protection can be lower, depending on what is at stake."

In testing whether certain information falls within the purview of the RTI Act, the court said one should consider the following three tests:

whether the disclosure of the personal information is with the aim of providing knowledge of the proper performance of the duties and tasks assigned to the public servant in any specific case;
whether the information is deemed to comprise the individual's private details, unrelated to his position in the organization, and,
whether the disclosure will furnish any information required to establish accountability or transparency in the use of public resources.

Would this rule hold true for information on relatives/ friends of public persons? The rule is that, unless, private information on relatives/friends of public person’s impacts public interest and accountability, the information should not be revealed.

In 2010, the media reported that Sunanda Pushkar, a close friend of the Minister of State for External Affairs, Shashi Tharoor, holds a significant holding in the IPL Kochi team. The media exposure led to the exit of Shashi Tharoor from the government. While the media’s questioning of Pushkar’s holdings was legitimate, the media’s reporting on her past relationships and how she dressed had no bearing on public interest or accountability.[9] The media accused Pushkar of playing proxy for Tharoor in the Rs. 70 crore sweat equity deal. Much of the media attention focussed on her personal life, as opposed to, how she attained such a large stake in the IPL Kochi team. It minutely analysed her successes and failures, questioned her ability and accused her of having unbridled ambition and greed for money and power.[10]

If one was to consider the rules of privacy set by the court in the judges assets’ case much of the personal information published by the media on Tharoor and Pushkar, failed to shed light on the IPL holdings or the establishment of the nexus between the IPL holdings and the government involvement.

The tests delineated by the court in considering what personal information regarding a public authority may be shared under the RTI Act, can be adopted by the media when reporting on public officials. If personal information divulged by the media does not shed light on the performance of a public official, which would be of public interest, then the information revealed violates the standards of privacy. Personal details which have no bearing on public resources or interests should not be published.

The media coverage of the Bombay terror attacks displayed the same lack of restraint, where the minutest details of a person’s last communication with his/her family were repeatedly printed in the media. None of the information presented by the media revealed anything new about the terror attack or emphasised the gravity of the attack.

A senior journalist, who talked off the record and reported on the Mumbai terror attacks, agreed that the media overstepped their limits in the Mumbai terror attacks. As per her, violation of privacy takes place at two stages: the first time, when you overstep your boundaries and ask a question you should not have, and the second, when you publish that information. Reflecting on her ten years of reporting experience, she said, “Often when you are covering a tragedy, there is little time to reflect on your reporting. Besides, if you, on account of violating someone’s privacy, choose not to report a story, some competing paper would surely carry that story. You would have to defend your decision to not report the story to your boss.” The competitiveness of reporting and getting a story before your competitor, she agreed makes even the most seasoned journalists ruthless sometimes. Besides, although PCI norms exist, not many read the PCI norms or recall the journalistic ethics when they are reporting on the field.[11]

The PCI Norms reiterate that the media should not intrude "the privacy of an individual, unless outweighed by genuine overriding public interest, not being a prurient or morbid curiosity."[12] The well accepted rule, however, is that once a matter or information comes in the public domain, it no longer falls within the sphere of the private. The media has failed to make the distinction between what is warranted invasion of privacy and what constitutes as an unwarranted invasion of privacy. For instance, identity of a rape or kidnap victim that would further cause discrimination is often revealed by the media.

Safeguarding Identity of Children

The Juvenile Justice (Care and Protection of Children) Act lays down that the media should not disclose the names, addresses or schools of juveniles in conflict with the law or that of a child in need of care and protection, which would lead to their identification. The exception, to identification of a juvenile or child in need of care and protection, is when it is in the interest of the child. The media is prohibited from disclosing the identity of the child in such situations.

Similarly, the Convention on the Rights of the Child (CRC) stipulates that:

Article 16

No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation.
The child has the right to the protection of the law against such interference or attacks.

Article 40 of the Convention, states that the privacy of a child accused of infringing penal law should be protected at all stages of the proceedings.

Almost all media, print and broadcast, fail to observe these guidelines. Prashant Kulkarni[13] (name changed), who was a photographer with Reuters a few years ago, said that in Reuters photographs taken by photojournalists could not be altered or edited, to ensure authenticity.

As far as taking photographs of certain vulnerable persons is concerned, he admitted to photographing street children who are drug addicts on the streets of Mumbai. The photographs were published by Reuters. However, when he was on an assignment for an NGO working with children, the NGO cautioned him about photographing children who are drug addicts, to protect their identity. Similarly, identity of HIV and AIDS patients, including children, should be protected and not revealed. Children affected with HIV and AIDS should not be identified by name or photograph, even if consent has been granted by the minor’s parents/guardian.

As a rule, Kulkarni said, he does not seek consent of individuals when he is taking their photographs, if they are in a public place. If they do not object, the assumption is that they are comfortable with being photographed. The PCI norms do not expressly provide that consent of a person should be sought. But, journalists are expected to exercise restraint in certain situations. Likewise, identifying juveniles in conflict with law is restricted. This includes taking photographs of juveniles that would lead to their identification.

Kulkarni, who extensively covered the Bombay train blasts in 2006, explains, "At the time of the Bombay train explosions, I avoided taking pictures that were gory or where dead people could be identified. However, I did take photographs of those injured in the blast and were getting treated in government hospitals. I did not expressly seek their consent. They were aware of being photographed. That is the rule I have applied, even when I was on an assignment in West Africa. I have never been on an assignment in Europe, so am not sure whether I would have applied the same rule of thumb. Nonetheless, now as a seasoned photographer, I would refrain from taking pictures of children who are drug addicts."

Safeguarding Identity of Rape Victims

Section 228A of the Indian Penal Code makes disclosure of the identity of a rape victim punishable. In the recent Aarushi Talwar murder case and the rape of an international student studying at the Tata Institute of Social Sciences (TISS) the media frenzy compromised the privacy of the TISS victim and besmirched the character of the dead person.[14] In the TISS case, the media did not reveal the name of the girl, but revealed the name of the university and the course she was pursuing, which is in violation of the PCI norms. In addition to revealing names of individuals, the PCI norms expressly states that visual representation in moments of personal grief should be avoided. In the Aarushi murder case, the media repeatedly violated this norm.

The media in both cases spent enough newsprint speculating about the crimes. Abhinav Pandey[15] (name changed), a senior journalist reporting on crime, agrees that the media crossed its boundaries in the TISS case by reporting sordid details of how the rape took place. "Names of victims of sexual crime cannot be reported. In fact, in many instances the place of stay and any college affiliation should also be avoided, as they could be easily identified. Explicit details of the offence drawn from the statement given by the victim to the police are irrelevant to the investigation or to the public at large. Similarly, names of minors and pictures, including those of juveniles, have to be safeguarded."

"Crime reporters receive most of their stories from the police. Therefore, one has to be careful before publishing the story. At times in the rigour of competitive journalism, if you decide to publish an unverified story, as a good journalist you should present a counter-point. As a seasoned journalist it is easy to sense when a story is being planted by the police. If you still want to carry the story, one has to be careful not to taint the character of a person," he adds.

"For instance, in my reporting if I find that the information will not add to the investigation, I will not include it in my copy. Last year, we had anonymous letters being circulated among crime reporters which alleged corruption among senior IPS officers. Instead of publishing the information contained in those letters with the names of the IPS officers, we published a story on corruption and cronyism on IPS officers. In the Faheem Ansari matter, who was an accused in the 26/11 trial, I had received his email account password. Accessing his account also amounts to violation of privacy. But, we only published the communication between him and some handlers in Pakistan, which we knew would have an impact on the investigation. Our job requires us to share information in the public domain, sometimes we would violate privacy. Nonetheless, one has to be cautious."

Trial by Media & Media Victimisation

The PCI norms lay down the guidelines for reporting cases and avoiding trial by media. The PCI warns journalists not to give excessive publicity to victims, witnesses, suspects and accused as that amounts to invasion of privacy. Similarly, the identification of witnesses may endanger the lives of witnesses and force them to turn hostile. Zaheera Sheikh, who was a key witness in the Gujarat Best Bakery case, was a victim of excessive media coverage and sympathy. Her turning hostile invited equal amount of media speculation and wrath. Her excessive media exposure possibly endangered her life. Instead, of focussing on the lack of a witness protection program in the country, the media focussed on the twists and turns of the case and the 19 year old’s conflicting statements. The right of the suspect or the accused to privacy is recognised by the PCI to guard against the trial by media.

Swati Deshpande,[16] a Senior Assistant Editor (Law) at the Times of India, Mumbai, observes that, “As a good journalist one will always have more information than required, but whether you publish that information or exercise restraint is up to you.” In a span of 11 years of court reporting, as per her, there have been instances when she has exercised the option of not reporting certain information that could be defamatory and cannot be attributed. If an allegation is made in a court room, but is not supported by evidence or facts, then it is advisable that it be dropped from the report.

"In the Bar Dancers’ case which was before the Bombay High Court, the petition made allegations of all kinds against certain ministers. I did not report that, although I could have justified it by saying it is part of the petition, and I was just doing my job. The allegation was neither backed by facts nor was it of public interest. As a rule one should report on undisputed facts. Then again, with court reporting one is treading on safer grounds, as opposed to other beats."

"In cases of rape when facts are part of the judgement, you report facts that are relevant to the judgement or give you an insight on why the court took a certain view and add value to the copy. One should avoid a situation where facts revealed are offensive or reveal the identity of the victim. The past history of both the victim and the accused should not be reported."

She admitted, that "Media reporting often gives the impression that the accused has committed the crime or the media through its independent investigation wing has found a particular fact. When in fact, it has relied entirely on the information given by the police and failed to question or verify the facts by an independent source. The result is that most crime reporting is one-sided, because the information received from the police is rarely questioned."

As per her, to a certain degree the publication of Tata–Radia conversations did violate Tata’s privacy. "Media needs to question itself prior to printing on how the information is of public interest. Of course, as a journalist you do not want to lose out on a good story, but there needs to be gate keeping, which is mostly absent in most of the media today."

In the Bofors pay-off case[17] the High Court of Delhi, observed that, “The fairness of trial is of paramount importance as without such protection there would be trial by media which no civilised society can and should tolerate. The functions of the court in the civilised society cannot be usurped by any other authority.”[18] It further criticised the trend of police or the CBI holding a press conference for the media when investigation of a crime is still ongoing. The court agreed that media awareness creates awareness of the crime, but the right to fair trial is as valuable as the right to information and freedom of communication.

The 200th report of the Law Commission dealt with the issue of Trial by media: Free Speech vs Fair Trial under Criminal Procedure. The report, focussed on the pre-judicial coverage of a crime, accused and suspects, and how it impacts the administration of justice. The Contempt of Courts Act, under section 2 defines criminal contempt as:

"…the publication, (whether by words, spoken or written or by signs, or by visible representations, or otherwise), of any matter or the doing of any other act whatsoever which
(i) … … … …
(ii) prejudices or interferes or tends to interfere with the due course
of any judicial proceedings; or
(iii) interferes or tends to interfere with or obstructs or tends to obstruct, the administration of justice in any manner."

Section 3(1) of the Act exempts any publication and distribution of publication, "if the publisher had no reasonable grounds for believing that the proceeding was pending”. In the event, the person is unaware of the pendency, any publication (whether by words spoken or written or signs or visible representations) interferes or tends to interfere with or obstructs “the course of justice in connection with any civil or criminal proceeding pending at the time of publication, if at that time he had no reasonable grounds for believing that the proceeding was pending." The report emphasizes that publications during the pre-trial stage by the media could affect the rights of the accused. An evaluation of the accused’s character is likely to affect or prejudice a fair trial.

If the suspect’s pictures are shown in the media, identification parades of the accused conducted under Code of Civil Procedure would be prejudiced. Under Contempt of Court Act, publications that interfere with the administration of justice amount to contempt. Further, the principles of natural justice emphasise fair trial and the presumption of innocence until proven guilty. The rights of an accused are protected under Article 21 of the Constitution, which guarantees the right to fair trial. This protects the accused from the over-zealous media glare which can prejudice the case. Although, in recent times the media has failed to observe restraint in covering high-profile murder cases, much of which has been hailed as media’s success in ensuring justice to the common man.

For instance, in the Jessica Lal murder case, the media took great pride in acting as a facilitator of justice. The media in the case whipped up public opinion against the accused and held him guilty even when the trial court had acquitted the accused. The media took on the responsibility of administering justice and ensuring the guilty are punished, candle light vigils and opinion polls on the case were organised by the media. Past history of the accused was raked up by the media, including photographs of the accused in affluent bars and pubs in the city were published after he was acquitted. The photographs of Manu Sharma in pubs insinuated how he was celebrating after his acquittal.

The Apex Court observed that the freedom of speech has to be carefully and cautiously used to avoid interference in the administration of justice. If trial by media hampers fair investigation and prejudices the right of defence of the accused it would amount to travesty of justice. The Court remarked that the media should not act as an agency of the court.[19]

The Court, commented, "Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending."[20]

Sting Operations

On 30 August, 2007 Live India, a news channel conducted a sting operation on a Delhi government school teacher forcing a girl student into prostitution. Subsequent to the media exposé, the teacher Uma Khurana[21] was attacked by a mob and was suspended by the Directorate of Education, Government of Delhi. Later investigation and reports by the media exposed that there was no truth to the sting operation. The girl student who was allegedly being forced into prostitution was a journalist. The sting operation was a stage managed operation. The police found no evidence against the teacher to support allegations made by the sting operation of child prostitution. In this case, the High Court of Delhi charged the journalist with impersonation, criminal conspiracy and creating false evidence. The Ministry of Information and Broadcasting sent a show cause notice to TV-Live India, alleging the telecast of the sting operation by channel was “defamatory, deliberate, containing false and suggestive innuendos and half truths."[22]

Section 5 of the Cable Television Networks (Regulation) Act, 1995 and the Cable Television Network Rules (hereafter the Cable Television Networks Act), stipulates that no programme can be transmitted or retransmitted on any cable service which contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths. The Rules prescribes a programming code to be followed by channels responsible for transmission/re-transmission of any programme.

The programme code restricts airing of programmes that offend decency or good taste, incite violence, contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths, criticises, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country and affects the integrity of India, the President and the judiciary. The programme code provided by the Rules is exhaustive. The Act empowers the government to restrict operation of any cable network it thinks is necessary or expedient to do so in public interest.

The court observed that false and fabricated sting operations violate a person’s right to privacy. It further, observed, "Giving inducement to a person to commit an offence, which he is otherwise not likely and inclined to commit, so as to make the same part of the sting operation is deplorable and must be deprecated by all concerned including the media.” It commented that while “…sting operations showing acts and facts as they are truly and actually happening may be necessary in public interest and as a tool for justice, but a hidden camera cannot be allowed to depict something which is not true, correct and is not happening but has happened because of inducement by entrapping a person."[23]

The court criticised the role of the media in creating situations of entrapment and using the ‘inducement test’. It remarked that such inducement tests infringe upon the individual's right to privacy. It directed news channels to take steps to prohibit “reporters from producing or airing any programme which are based on entrapment and which are fabricated, intrusive and sensitive.[24]

The court proposed a set of guidelines to be followed by news channels and electronic media in carrying out sting operations. The guidelines direct a channel proposing to telecast a sting operation to obtain a certificate from the person who recorded or produced the same certifying that the operation is genuine to his knowledge. The guidelines propose that the Ministry of Information and Broadcasting should set up a committee which would have the powers to grant permission for telecasting sting operations. The permission to telecast a sting operation should be granted by the committee only if it is satisfied about the overriding public interest to telecast the sting operation. The guidelines mandate that, in addition, to ensuring accuracy, the operation should not violate a person’s right to privacy, "unless there is an identifiable large public interest” for broadcasting or publishing the material. However, the court failed to define what constitutes 'larger public interest'.

The PCI norms also lay down similar guidelines which require a newspaper reporting a sting operation to obtain a certificate from the person involved in the sting to certify that the operation is genuine and record in writing the various stages of the sting. The decision to report the sting vests with the editor who merely needs to satisfy himself that the sting operation is of public interest.

In addition, to the Cable Television Networks Act and the PCI norms, the News Broadcasting Standard Authority (NBSA) was set up in 2008 as a self-regulatory body by News Broadcasters Association.[25] The primary objective of the NBSA is to receive complaints on broadcasts. The NBSA has drafted a Code of Ethics and Broadcasting Standards governing broadcasters and television journalists. The Code of Ethics provides guiding principles relating to privacy and sting operations that broadcasters should follow.

With respect to privacy, the Code directs channels not to intrude into the private lives of individuals unless there is a “clearly established larger and identifiable public interest for such a broadcast.” Any information on private lives of persons should be “warranted in public interest.” Similarly, for sting operations, the Code directs that they should be used as “a last resort” by news channels and should be guided by larger public interest. They should be used to gather conclusive evidence of criminality and should not edit/alter visuals to misrepresent truth.

In a recent judgement on a supposed sting operation conducted by M/s. Associated Broadcasting Company Pvt. Limited[26] on TV9 on ‘Gay culture rampant in Hyderabad’, the NBA took suo motu notice of the violation of privacy of individuals with alternate sexual orientation and misuse of the tool of sting operation. NBA in its judgement held that the Broadcaster had violated clauses on privacy, sting operations and sex and nudity of the Code of Ethics. It further, observed, that the Broadcaster and the story did not reveal any justifiable public interest in using the sting operation and violating the privacy of individuals. In this particular case, the Broadcaster had revealed the personal information and faces of supposedly gay men in Hyderabad to report on the ‘underbelly’ of gay culture and life. However, the news report, as NBSA observed, did not prove any criminality and was merely a sensational report of gay culture allegedly prevalent in Hyderabad.

The PCI norms provide that the press should not tape-record conversations without the person’s express consent or knowledge, except where it is necessary to protect a journalist in a legal action or for “other compelling reason.” What constitutes a compelling reason is left to the discretion of the journalist.

It was in the 1980s, that the first sting operation on how women were being trafficked was carried out by the Indian Express reporter Ashwin Sarin. As part of the sting, the Express purchased a tribal girl called Kamla. Subsequently, in 2001, the sting operation conducted by Tehelka exposed corruption in defence contracts using spy cams and journalists posing as arms dealers. The exposé on defence contracts led to the resignation of the then defence minister George Fernandes. Sting operations gained legitimacy in India, especially in the aftermath of the Tehelka operation, exposing corruption within the government. The original purpose of a sting operation or an undercover operation was to expose corruption. Stings were justifiable only when it served a public interest. Subsequent to the Tehelka exposé, stings have assumed the status of investigative journalism, much of which has been questioned in recent times, especially, with respect to ethics involved in conducting sting operations and the methods of entrapment used by the media. Further, stings by Tehelka, where the newspaper used sex workers to entrap politicians have brought to question the manner in which stings are operated. Although, the overriding concern surrounding sting operations has been its authenticity, as opposed to, the issue of personal privacy.

For instance, in March 2005 a television news channel carried out a sting operation involving Bollywood actor Shakti Kapoor to expose the casting couch phenomenon in the movie industry. The video showing Shakti Kapoor asking for sexual favours from an aspiring actress, who was an undercover reporter, was received with public outrage. Nonetheless, prominent members of the media questioned the manner in which the sting was conducted. The sting was set up as an entrapment. The court has taken a strong view against the use of entrapment in sting operations. In the case of the Shakti Kapoor sting, privacy of the actor was clearly violated. The manner in which the sting was conducted casts serious doubt on who was the victim.[27]

Additionally, the sting violated the PCI norms. It failed to provide a record of the various stages of how the sting operation was conducted. In United Kingdom, the media when violating privacy of a person has to demonstrate that it is in the interest of the public.

International Law on Media & Privacy Ethics

United Kingdom

The Press Complaints Commission (PCC), UK is a self-regulatory body similar to NBA. The PCC has put down code of ethics to be followed by journalists. The PCC guidelines provide that everyone has the right to privacy and editors must provide reason for intrusions to a person’s privacy. This includes photographing individuals in private places without their consent. Interestingly, private places include public or private property "where there is a reasonable expectation of privacy." In India however, as Kulkarni pointed out, photographs are taken without the consent of an individual if he/she is in a public space.

Like the PCI norms, the PCC Code lays down guidelines to follow when reporting on minors (below 16 years of age) who have been victims of sexual assault. As per the guidelines, the identity of the children should be protected. Further, relatives or friends of persons convicted or accused of a crime should not be identified without their consent, unless the information is relevant to the story. References to a person’s race, colour, sexual orientation and gender should be avoided. For instance, the media reportage of the TISS rape case, which revealed the nationality and colour of the victim, would be in violation of the PCC Code. In the TISS rape case, the information on the nationality and colour of the victim was not only irrelevant to the story, but as amply demonstrated by the media it reinforced prejudices against white women as ‘loose or amoral’.[28]

As far as sting operations are concerned, the PCC lays down that the press must not publish material acquired by hidden camera or clandestine devices by intercepting private messages, emails or telephone calls without consent. However, revealing private information in cases of public interest is an exception to the general rule to be followed with respect to individual privacy. The PCC defines public interest to include, but it is not restricted to:

"i) Detecting or exposing crime or serious impropriety
ii) Protecting public health and safety
iii) Preventing the public from being misled by an action or statement of an individual or organisation"

It requires editors to amply demonstrate that a publication is of public interest. In case the material is already in public domain the same rules of privacy do not apply. However, in cases involving children below 16 years of age, editors must demonstrate exceptional public interest that overrides the interest of the child. Tellingly, the PCC recognises freedom of expression as public interest.

The PCC, to ensure that persons are not hounded by the media have started issuing desist orders. The PCC issues a desist notice to editors to prevent the media from contacting the person. Preventive pre-publication is when the PCC pre-empts a story that may be pursued or published and attempts to either influence the reporting of the story in a way that it is not in violation of a person’s privacy or persuades the media house not to publish the story. The PCC, however, does not have the powers to prevent publication.

Further, United Kingdom is a member of the European Convention on Human Rights (ECHR), which guarantees the right to privacy under Article 8 of the Convention: "Everyone has the right to respect for his private and family life, his home and his correspondence."

However, there is no independent law which recognises the right to privacy. The judiciary however has protected the right to privacy in several occasions, like in the famous J.K. Rowling case where the English Court held, that a minor’s photograph without the consent of the parent or guardian, though not offensive, violates the child’s right to privacy.[29]

France

The French legal system protects the right to privacy under: Article 9 of the Civil Code.

Article 9 of the Civil Code states:

Everyone has the right to respect for his private life. Without prejudice to compensation for injury suffered, the court may prescribe any measures, such as sequestration, seizure and others, appropriate to prevent or put an end to an invasion of personal privacy; in case of an emergency those measures may be provided for by an interim order. The right to privacy allows anyone to oppose dissemination of his or her picture without their express consent.

Article 9 covers both the public and private spheres, and includes not merely the publication of information but also the method of gathering information. Also, in France violation of one’s privacy is a criminal offence. This includes recording or transmitting private conversations or picture of a person in a private place without the person’s consent. This implies that privacy is not protected in a public place. Any picture taken of a person dead or alive, without their prior permission, is prohibited. Buying of such photographs where consent of a person also constitutes as an offence. Journalists, however, are not disqualified from the profession if they have committed such an offence.[30]

France has the Freedom of the Press of 29 July 1881 which protects minors from being identified and violent and licentious publication which targets minors. It punishes slander, publication of any information that would reveal the identity of a victim of a sexual offence, information on witnesses and information on court proceedings which include a person’s private life.[31]

Sweden

Privacy is protected in Sweden under its Constitution. All the four fundamental laws of the country: the Instrument of Government, the Act of Succession, the Freedom of the Press Act, and the Fundamental Law on Freedom of Expression protect privacy. The Instrument of Government Act of 1974 provides for the protection of individual privacy. It states that freedom of expression is limited under Article 13 of the Constitution:

"Freedom of expression and freedom of information may be restricted having regard to the security of the Realm, the national supply, public safety and order, the integrity of the individual, the sanctity of private life, or the prevention and prosecution of crime. Freedom of expression may also be restricted in economic activities. Freedom of expression and freedom of information may otherwise be restricted only where particularly important reasons so warrant."

Sweden has a Press Council which was established in 1916. The Council consists of the Swedish Newspaper Publishers' Association, the Magazine Publishers' Association, the Swedish Union of Journalists and the National Press Club. The Council consists of "a judge, one representative from each of the above-mentioned press organisations and three representatives of the general public who are not allowed to have any ties to the newspaper business or to the press organisations."

Additionally, there is an office of the Press Ombudsman which was established in 1969. Earlier the Swedish Press Council used to deal with complaints on violations of good journalistic practice. After the setting up of the Press Ombudsman, the complaints are first handled by the Press Ombudsman, who is empowered to take up matters suo motu. "Any interested members of the public can lodge a complaint with the PO against newspaper items that violate good journalistic practice. But, the person to whom the article relates to must provide a written consent, if the complaint is to result in a formal criticism of the newspaper."[33]

The Swedish Press Council reports that in the recent years, 350-400 complaints have been registered annually, of which most concern coverage of criminal matters and invasion of privacy.

Sweden, additionally, has a Code of Ethics which applies to press, radio and television. The Code of Ethics was adopted by the Swedish Co-operation Council of the Press in September 1995. The Code of Ethics for Press, Radio and Television in Sweden has been drawn up by the Swedish Newspaper Publishers' Association, the Magazine Publishers' Association, the Swedish Union of Journalists and the National Press Club.

The Code of Ethics lay down norms to be followed in respect of privacy. It states that caution should be exercised when publishing information that:

Infringes on a persons’ privacy, unless it is obviously in public interest,
Information on suicides or attempted suicides
Information on victims of crime and accidents. This includes publication of pictures or photographs[34]

Race, sex, nationality, occupation, political affiliation or religious persuasion in certain cases, especially when such information is of no importance, should not be published.

One should exercise care in use of pictures, especially, retouching a picture by an electronic method or formulating a caption to deceive the reader. In case a picture has been retouched, it should be indicated below the photograph.

Further, the Code asks journalists to consider “the harmful consequences that might follow for persons if their names are published” and names should be published only if it is in the public interest. Similarly, if a person’s name is not be revealed, the media should refrain from publishing a picture or any particulars with respect to occupation, title, age, nationality, sex of the person, which would enable identification of the person.

In case of court reporting or crime reporting, the Code states that the final judgement of the Court should be reported and given emphasis, as opposed to conducting a media trial. In addition, Sweden has incorporated the ECHR in 1994.

Japan

The Japan Newspaper Publishers & Editors Association or Nihon Shinbun Kyokai (NSK),[35] was established in 1946 as an independent and voluntary organisation to establish the standard of reporting, and protect and promote interests of the media. The organisation as part of its mandate has developed the Canon of Journalism, which provides for ethics and codes members of the body should follow. The Canon recognises that with the easy availability of information, the media constantly has to grapple with what information should be published and what should be held back. The Code provides that journalists have a sense of responsibility and should not hinder public interests. In addition, to ensuring accuracy and fairness, the Code states that respect of human rights, includes respect for human dignity, individual honour and right to privacy. Right to privacy is acknowledged as a human right.

Japan does not have an information ministry or organs like the PCC in the U.K. or the Press Ombudsman in Sweden. Apart from the Canon, the NSK has a code for marketing of newspapers, an advertising code and the Kisha club guidelines.[36]

Japan in 2003 formulated the Personal Information Protection Act, which regulates public and private sector. The Act, which came into effect in 2005, aims to ensure that all personal data collected by the public and private sector are handled with care. The Act requires that the purpose of collecting personal information and its use should be specified, information should be acquired by fair means, any information should not be supplied to third parties without prior consent of the individual concerned.

Netherlands

The right to privacy is protected under Article 10 of the Netherlands Constitution. Further, the Article also provides for the enactment of Rules for dissemination of personal data and the right of persons to be informed when personal data is being recorded.

Netherlands also has the Netherlands Press Council which keeps the media in check. The Code of the International Federation of Journalists and the Code of Conduct for Dutch Journalists was drafted by the Dutch Society of Editors-in-Chief to establish media reporting standards. These guidelines can be disregarded by the media only in cases involving social interest.

The Code recognises:

That a person’s privacy should not be violated when there is no overriding social interest;
In cases concerning public persons violation of privacy would take place, but they have the right to be protected, especially, if that information is not of public interest;
The media should refrain from publishing pictures and images of persons without prior permission of persons. Similarly, the media should not publish personal letters and notes without the prior permission of those involved;
The media should refrain from publishing pictures and information of suspects and accused; and
Details of criminal offence should be left out if they would add to the suffering of the victim or his/her immediate family and if they are not needed to demonstrate the nature and gravity of the offence or the consequences thereof.

Conclusion

The right to privacy in India has failed to acquire the status of an absolute right. The right in comparison to other competing rights, like, the right to freedom of speech & expression, the right of the State to impose restrictions on account of safety and security of the State, and the right to information, is easily relinquished. The exceptions to the right to privacy, such as, overriding public interest, safety and security of the State, apply in most countries. Nonetheless, as the paper demonstrates, unwarranted invasion of privacy by the media is widespread. For instance, in the UK, Sweden, France and Netherlands, the right to photograph a person or retouching of any picture is prohibited unlike, in India where press photographers do not expressly seek consent of the person being photographed, if he/she is in a public space. In France, not only is the publication of information is prohibited on account of the right to privacy, but the method in which the information is procured also falls within the purview of the right to privacy and could be violative. This includes information or photograph taken in both public and private spaces. Privacy within public spaces is recognised, especially, “where there is reasonable expectation of privacy.” The Indian norms or code of ethics in journalism fail to make such a distinction between public and private space. Nor do the guidelines impose any restrictions on photographing an individual without seeking express consent of the individual.

The Indian media violates privacy in day-to-day reporting, like overlooking the issue of privacy to satisfy morbid curiosity. The PCI norms prohibit such reporting, unless it is outweighed by ‘genuine overriding public interest’. Almost all the above countries prohibit publication of details that would hurt the feelings of the victim or his/her family. Unlike the UK, where the PCC can pass desist orders, in India the family and/or relatives of the victims are hounded by the media.

In India, the right to privacy is not a positive right. It comes into effect only in the event of a violation. The law on privacy in India has primarily evolved through judicial intervention. It has failed to keep pace with the technological advancement and the burgeoning of the 24/7 media news channels. The prevalent right to privacy is easily compromised for other competing rights of ‘public good’, ‘public interest’ and ‘State security’, much of what constitutes public interest or what is private is left to the discretion of the media.

Notes

[1]The Radia Tapes’ controversy concerns recording of conversations between the lobbyist Nira Radia and politicians, industrialists, bureaucrats and journalists with respect to the 2G spectrum scam. The tapes were recorded by the Income Tax Department. The role played by the media, especially some prominent journalists, in scam has been questioned. A handful of magazines and newspapers have questioned the media ethics employed by these journalists, whose recorded conversations are in the public domain or have been published by a few political magazines. The publication of the recorded conversations by a few media publications has received a sharp reaction from the said journalists. They have accused those media journals of unverified reporting and conducting a smear campaign against them.

[2]1975 AIR 865, 1975 SCR (3) 333.

[3](1994) 6 S.C.C. 632.

[4]AIR 1997 SC 568.

[5]AIR 1997 SC 568.

[6]AIR 1997 SC 568.

[7]International Covenant on Civil and Political Rights, Part III Art. 17. Available at: http://www2.ohchr.org/english/law/ccpr.htm [Last accessed 20//04/2011].

[8]W.P. (C) 288/2009

[9]PTI, Media just turned me into a 'slut' in IPL row: Sunanda Pushkar, 23/04/2010 Available at http://articles.timesofindia.indiatimes.com/2010-04-23/india/28149154_1_sunanda-pushkar-shashi-tharoor-ipl-kochi [Last accessed 20/04/2011].

[10]Vrinda Gopinath, "Got A Girl, Named Sue", 26/04/2010 Available at http://www.outlookindia.com/article.aspx?265098 [Last accessed 20/04/2011]

[11]Interview with Senior Assistant Editor, Hindustan Times, on 18.04.11.

[12]Guideline 6 (i) Right to Privacy, Norm if Journalistic Conduct, PCI.

[13]Interview with a freelance photographer and a former Reuters photographer on 16.04.11.

[14]Kumar, Vinod, “Raped American student’s drink not spiked in our bar,” 16.04.09 Available at http://www.mid-day.com/news/2009/apr/160409-Mumbai-News-Raped-American-student-date-drug-CafeXO-Tata-Institute-of-Social-Sciences.htm, Anon, “Party pics boomerangon TISS rape victim” , 04 .05.09, Available at http://www.mumbaimirror.com/index.aspx?page=article§id=15&contentid=2009050420090504031227495d8b4e80f [Last Accessed April 20,2011].

[15]Interview with Abhinav Pandey, crime reporter with a leading newspaper, on 21.04.11.

[16]Interview with Swati Deshpande, Senior Assistant Editor (Law), Times of India, on 15.04.11.

[17]Crl.Misc.(Main) 3938/2003

[18]Ibid.

[19]Sidhartha Vashisht @ Manu Sharma vs State (Nct Of Delhi), Available at http://www.indiankanoon.org/doc/1515299/.

[20]Ibid

[21]WP(Crl.) No.1175/2007

[22]Ibid

[23]Ibid

[24]Ibid

[25]NBA is a community formed by private television & current affairs broadcasters. As per the NBA website, it currently has 20 leading news channels and current affairs broadcaster as its members. Complaints can be filed against any of the broadcasters that are members of NBA on whom the Code of Ethics is binding.

[26]For additional details, please refer to the website: http://www.nbanewdelhi.com/authority-members.asp [Last Accessed April 20,2011]

[27]TNN, “'Full video will further embarrass Shakti', 15.03.2005 Available at http://articles.timesofindia.indiatimes.com/2005-03-15/mumbai/27849089_1_sting-operation-shakti-kapoor-film-industry.

[28]For more details please refer to the PCC website: http://www.pcc.org.uk/ [Last Accessed April 20,2011].

[29]Singh, A., May 2008, “JK Rowling wins privacy case over son's photos”http://www.telegraph.co.uk/news/uknews/1936471/JK-Rowling-wins-privacy-case-over-sons-photos.html [Last Accessed April 20,2011].

[30]For more details, please refer to: http://www.kbkcl.co.uk/2008/03/privacy-law-the-french-experience/ and http://ambafrance-us.org/spip.php?article640 [Last Accessed April 20,2011].

[31]For more details, please refer to:http://www.ambafrance-uk.org/Freedom-of-speech-in-the-French.html [Last Accessed April 20,2011].

[32]http://www.po.se/english/how-self-regulation-works [Last Accessed April 20,2011].

[33]Ibid.

[34]Please refer to this website for additional details: http://ethicnet.uta.fi/sweden/code_of_ethics_for_the_press_radio_and_television and http://www.po.se/english/code-of-ethics/85-code-of-ethics-for [Last Accessed April 20,2011].

[35]http://www.pressnet.or.jp/english/index.htm [Last Accessed April 20,2011].

[36]Kisha Clubs, are clubs where only a few media houses/newspapers have access to public institution information. They have been criticised for its lack of openness and encouraging monopoly on reporting.

For more details visit https://cis-india.org/internet-governance/blog/privacy/privacy-media-law

When Data Means Privacy, What Traces Are You Leaving Behind?

Noopur Raval — 2011-11-24T09:24:03Z

How do you know yourself to be different from others? What defines the daily life that you live and the knowledge you produce in the span of this life? Is all that information yours or are you a mere stakeholder on behalf of the State whose subject you are? What does privacy really mean? In a society that is increasingly relying on information to identify people, collecting and archiving ‘personal’ details of your lives, your name, age, passport details, ration card number, call records etc, how private is your tweet, status update, text message or simply, your restaurant bill?

The CIC (central information commission) that arbitrates decisions on RTI appeals in case of conflict of interest provides interesting notions of what the State thinks is privacy. Ironically, the cornerstones of RTI that is privacy and its invasion are yet to be defined in the context of the judiciary. Then, how does the CIC decide what is private enough and what can be revealed to anyone? Of course, it relies on the discretion of its judges who attempt to draw from a range of sources that include the principles of natural justice drawn from western jurisprudence to quotes by Gandhi and Aristotle to the UK Data Protection Act, 1998 and US Torts that define invasion of privacy. To begin with, let us examine who constitutes the private sphere. As ruled in case of Mr. Ajeet Kumar Khanna vs Punjab & Sind Bank on 29 July, 2008 and Mr. G. Atchaiah vs State Bank of India on 22 August, 2008, the appellant can seek information only for himself/herself. Anyone outside the self, commonly believed as the personal connection, sons, daughters, parents or even spouse is not allowed information of a relative. One needs a distinct power of attorney for right to information. The contradiction is that one does not need to state the purpose for asking information, thereby making unnecessary any connection with the person you want information about.

CIC has been increasingly relying on the UK Data Protection Act, 1998 to make a correlation between data and privacy. Hence, to map privacy and its invasion, the RTI act depends on the UK Data Protection Act that classifies the following as sensitive personal data:

We have no equivalent of UK's Data Protection Act, 1998, Sec 2 of which, titled Sensitive Personal Data, reads as follows: In this Act "sensitive personal data" means personal data consisting of information as to:

The racial or ethnic origin of the data subject
His political opinions
His religious beliefs or other beliefs of a similar nature
Whether he is a member of a Trade Union
His physical or mental health or condition
His sexual life
The commission or alleged commission by him of any offence
Any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.

While this blanket reference to sensitive personal data does not account for nuances in the Indian context, it also does not capture the essence of public-private interaction. It is mostly at the intersection of the public domain and the individual that the demarcation occurs. While personal family photographs lying in my attic may constitute a beautiful memory that can be proudly displayed on my walls, it is when one acknowledges the dual nature of any information source, the potential of these photographs to contribute to larger politicized information narratives, that their access and usage comes to define the real crux of the privacy debate.

The US Restatement of the Law, Second, Torts, defines the Intrusion to Privacy more generally in the following manner: “One, who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” Of course, we don’t know whether a father paying for bills and wanting access to his daughter’s cell phone records can be seen as highly offensive to a reasonable person in the Indian context. In the context of the recent Padmanabhswamy Templetreasure trove found in Kerala, since under the Ancient Monuments and Archaeological Sites and Remains Act 1958, such sites qualify as sites of ‘national importance’ and imply a certain larger public interest, would one be able to access such 'nationally personal data' pertaining to a temple (public space) owned by a family trust registered with the government (publicly private), containing a national treasure lying locked on geographical territory (public) that is rightly shared by all citizens?

Here’s how the CIC defined the personal and the extent of personal in the context of state as illustrated in Mr. Kanhiya Lal vs MCD, GNCT, Delhi on 13 June, 2011.To qualify for this exemption the information must satisfy the following criteria:

It must be personal information

Words in a law should normally be given the meanings given in common language. In common language we would ascribe the adjective 'personal' to an attribute which applies to an individual and not to an institution or a corporate. From this it flows that 'personal' cannot be related to Institutions, organizations or corporate. (Hence, we could state that section 8 (1) (j) cannot be applied when the information concerns institutions, organizations or corporate). The phrase 'disclosure of which has no relationship to any public activity or interest' means that the information must have some relationship to a public activity. Various public authorities in performing their functions routinely ask for 'personal' information from Citizens, and this is clearly a public activity. When a person applies for a job, or gives information about himself to a public authority as an employee, or asks for a permission, licence or authorisation, all these are public activities. The information sought in this case by the appellant has certainly been obtained in the pursuit of a public activity. We can also look at this from another aspect. The State has no right to invade the privacy of an individual. There are some extraordinary situations where the State may be allowed to invade on the privacy of a Citizen. In those circumstances special provisos of the law apply, always with certain safeguards. Therefore it can be argued that where the State routinely obtains information from Citizens, this information is in relationship to a public activity and will not be an intrusion on privacy.

In that case, does data at several layers demand for us to relook privacy from the subject positions we acquire at different levels and hence, the larger private collectives that we partake of?

For more details visit https://cis-india.org/internet-governance/blog/privacy/when-data-is-privacy

My Experiment with Scam Baiting

sahana — 2012-03-13T10:43:28Z

Today, as I am sure many of you have experienced, Internet scams are widespread and very deceptive. As part of my research into privacy and the Internet, I decided to follow a scam and attempt to fully understand how Internet scams work, and what privacy implications they have for Internet users. Though there are many different types of scams that take place over the Internet —identity scams, housing scams, banking scams— just to name a few. I decided to look in depth at the lottery scam.

Day 1: July 4, 2011

On July 4, I received a spam mail from Shell BP Manchester England (lamarc65@cs.com). The e-mail informed me that my e-mail address had won a sum of $550,000 which was held on July 3, 2011 in England. In order to claim my prize the e-mail instructed me to confirm the receipt of the mail by submitting a few of my personal details to one Dr. Mohammed Al Maliki. This is an extract from the letter asking for my information:

Information Requested:

Your full Name:
Contact address:
Your Telephone:
Your Age:
Your occupation:
Your country of origin:

Congratulations.
Yours Sincerely,
Mrs Roseline Lott
Shell Prize announcer, England.

Deciding to reply to the email and see what happened, I responded to Dr. Mohammed Al Maliki (dr.mohamedmalik@gmail.com) with the information that the e-mail had asked, only I substituted my real information with the following fake information:

Shaiza Sarkar
B-196, CR Park, New Delhi - 110019
09916000603
23 yrs old
India

To my surprise he replied to my mail the same day at 4:59pm. In this mail he informed me that he had sent my details to Lloyds Bank who would be responsible for the payment of my prize. He asked me to inform him after I receive a mail from the bank. The e-mail contained a phone number for me to call. I tried to call the number mentioned in the mail but there was no reply.

Again to my surprise, I received a mail from Lloyds Bank at 6:58 p.m. the same day with a list of documents and details that I was supposed to send them to claim the prize money. Lloyds Bank had also attached a deposit certificate to ‘prove’ that Shell Petroleum Development Company had deposited the prize money in the bank. Below is an extraction of the e-mail I received from Lloyds Bank.

"FROM THE DESK OF DR. MOHAMED MALIK
REGIONAL CLAIMS AGENT,
SHELL PETROLEUM INTERNATIONAL LOTTERY PROGRAM.
Regional Office:
St James Court, Great Park Road,
Almondsbury Park, Bradley Stoke,
Bristol BS32 4QJ, England
Contact: +447035974608
“LLOYDS BANK PLC
ADMINISTRATIVE HEADQUARTERS.
LONDON, ENGLAND, UNITED KINGDOM.
REF...FILENOS2345/LTB
ATTENTION: SARKAR SHAIZA
*REGARDING YOUR PRIZE FROM SHELL PETROLEUM DEVELOPMENT COMPANY*
PLEASE SEND US THE DOCUMENTS BELOW;
1. A CERTIFICATE OF AWARD FROM SHELL PETROLEUM CONTACT DR MOHAMED MALIK
2. A SCANNED COPY OF EITHER YOUR DRIVERS LICENSE OR YOUR INTERNATIONAL PASSPORT OR WORK I.D CARD.
3. A SWORN AFFIDAVIT OF CLAIM FROM THE CROWN COURT HERE IN LONDON,YOU ARE REQUIRED TO CONTACT [DR MOHAMED MALIK]YOUR AGENT FOR ALL THIS.
SIR PAUL WISCONFIELD.
HEAD OF OPERATIONS.
LLOYDS TSB BANK PLC

Day 2: July 5, 2011

The next day I informed Dr. Mohammed Al Maliki of the above letter from the bank, as instructed to at 8:58 p.m. At 9:45 p.m., Dr. Mohammed Al Maliki emailed me back with the certificate of award from Shell Petroleum Development Company with my fake name printed on it.

Though the first two documents that Lloyds Bank required me to obtain were standard enough, the turning point in this entire scam was the third document that Lloyds Bank asked me to acquire. The third document asked me to present a sworn affidavit of claim from the Crown Court in London. Following the instructions given by the bank, I again emailed Dr. Mohammed Al Maliki. He replied with instructions for me to contact Barrister Wilson Burrows (ESQ) of Wilson and Co. Law Chambers for this document. I tried to search for Wilson and Co. Chambers on the Internet and found that no company with such a name exists.

This is the certificate of award provided to me by Dr. Mohammed Al Maliki:

Day 3: July 6, 2011

At 1:47 p.m. I mailed Wilson and Co. Law Chambers informing them about the sworn affidavit that I required in order to claim the lottery prize. The same day at 8:25 p.m. the Law Chambers sent me the following mail with an application form, and asked me to transfer 520 pounds through a Western Union Money Transfer to the Chamber’s Accountant Mr. Preston Doyle. I checked the address provided in the mail to see if it existed. The Google map showed that the given pin code “L14JJ”- London - was a pin code for Liverpool, Merseyside UK, which is not London , and not where Wilson and Co. Law Chambers claimed to be based. Additionally, the Law Chambers attached a form for the affidavit in this mail.

Below is an extract from the email I received from Wilson and Co. Law Chambers:
“The Principal Attorney
Wilson and co Chambers
#18 Harms Road Manchester
L14JJ - London.
Supreme Solicitors, Principal Attorneys and Property Managers
Kind Attention: Client,
As stated in the attached form, the completed form should be returned with the Court Oath Fee. For further processing, see below fees;
Court Oath Fee: 250 Pounds
Attorney Fee: 270 Pounds
------------------------------------------
Total Fee: 520 Pounds
-----------------------------------------
To send this money, go to any WESTERN UNION MONEY TRANSFER OFFICE nearest to you and make the payment to the Chamber's Accountant - Mr. Preston Doyle with the following details -
Receiver's Name: Mr. Preston Doyle
Receiver's Location: London, United Kingdom.
Receiver's Address: #18 Harms Road Manchester, L14JJ – London
Amount: £ 520.00 (Five Hundred and Twenty Pounds)
Regards,
Mrs.Wilson Burrows(ESQ)
(Registrar)
Mrs. Ivon Samuel (KBE) (Secretary)”

Day 4: July 7, 2011

After receiving the e-mail asking for a money transfer, I was curious and wished to probe more. Thus, I wrote to Wilson and Co Law Chambers and explained that a Western Union Transfer was not available in my village. The same day at 6:48 p.m. the Law Chambers sent me a mail saying that the Honourable Chamber recognizes only Western Union Transfer as the safest mode for transactions. I did not reply to this mail, as I knew I would not be able to go any further with my investigation. Though I was disappointed because this was the end to my investigation into lottery scams, and I still had questions that I wanted answered, the last e-mail the Law Chambers sent me was very interesting. In the last email sent to me by the Law Chambers requested (in a very pushy tone) that I should not tell anyone about my prize money, and that it was in fact in my best interest not to tell anyone.

Below is the extract of this mail:

“So do not discuss your winning with anybody until your prize has been transferred to you. It is for your own good. And it is at that time alone that you can be used for advert purposes by our company. So the success of this transfer lies sorely in your hands. These are the exact words from the Director this morning.”

Regards,

Mrs.Wilson Burrows (ESQ)

(Registrar)

His Lordship, Justice Ivon Samuel (KBE) (Secretary)

Day 5: July 8, 2011

Originally I wrote to the Law Chambers telling them I did not have access to a Western Union for the purpose of seeing if they use other mediums to receive money. Surprisingly, at 1:47 p.m. Wilson and Co. Law Chambers emailed me. The e-mail said that they would grant me the privilege of using a direct deposit of the 250 pounds into their correspondents account in India. In the mail they asked me to confirm that I would use this method of payment, and that once confirmed, that they would furnish me with their correspondent’s account details. Interested, I confirmed. After my e-mail confirmation at 9:47 p.m. they emailed me the details of their correspondent in India.

Below are the details of the account that I was supposed to transfer the money into:

This is the account details you will deposit the money into:
Account Name: L. MOHAN SINGH
Bank name: HDFC BANK
Branch: DELHI
Account number: 0609190004391
Ifsc Code : HDFC0000609
Pan Card: DDMPS9075M

Day 6: July 11, 2011

I did not deposit the money (obviously) and I did not e-mail the bank or the Law Chambers, I did receive a mail from Wilson and Co. Law Chambers informing me that their reputable organization would not tolerate my laxity. Unfortunately, because I could not pay the fee to their correspondent and obtain the affidavit, I was unable to follow the scam any further. Despite this dead end I was curious to know if they would provide me with the phone number of their Indian correspondent. Thus, I wrote them a mail to humbly apologise for the delay. I further asked them to provide me with the correspondent’s phone number claiming that the bank was rejecting his profile due to security protocols.

Day 7: July 12, 2011

The Law Chambers responded, informing me that they did not wish to give the correspondents number. In their e-mail they made it quite clear that for online banking all that is needed is the IFSC code. Therefore, I had to stop here.

This is the extract of the mail they sent me when I asked for the phone number:

The Principal Attorney
Wilson and co Chambers
#18 Harms Road Manchester
L14JJ - London.
Supreme Solicitors, Principal Attorneys and Property Managers

Kind Attention: Client,
This Honorable Chambers is in receipt of your mail. It is very important for you to know that laxity will not be accepted anymore. For the online transfer of this payment, you do not need any phone number, all you need is the IFSC Code already supplied to you. Once more, the IFSC Code is HDFC0000609. That is all you need to make an online transfer.

While I stopped following the scam at this point, many people might have continued with the process without any knowledge of it being a scam. Thus, one should be very sceptical about individuals or organizations who ask for personal and banking information.

Conclusions

In my experiment with scam baiting, I realized that:

They introduced me to various parties to make this entire scheme look professional. I initially assumed that I would have to carry out the process with the Shell Petroleum Development Company alone.
In the beginning of the experiment I initially thought the scam was about taking my account number and hacking into it. During my experiment I realized that the scam was not designed to make money by emptying my bank account, but instead was designed to profit off of the various admission fees such as the Sworn Affidavit.
Due to the speed by which they were able to respond to my emails, I realized that they had pre-prepared fake documents – ready to send to anyone who emailed them regarding claiming the offered lottery prize.
Throughout all of our e-mail exchanges I noticed that the individuals behind the scam only used a G-mail account. Curious, I checked their IP address – hoping to find out more information and possibly track their location – but found that Google does not reveal senders IP address information (which is in fact a very good thing in terms of privacy protection!)

For a detailed understanding of different types of scams visit here.

For more details visit https://cis-india.org/internet-governance/blog/privacy/scam-baiting

Copyright Enforcement and Privacy in India

Prashant Iyengar — 2012-12-14T10:27:12Z

Copyright can function contradictorily, as both the vehicle for the preservation of privacy as well as its abuse, writes Prashant Iyengar. The research examines the various ways in which privacy has been implicated in the shifting terrain of copyright enforcement in India and concludes by examining the notion of the private that emerges from a tapestry view of the relevant sections of Copyright Act.

Introduction

Copyright can function contradictorily, as both the vehicle for the preservation of privacy as well as its abuse. This paper examines the various ways in which privacy has been implicated in the shifting terrain of copyright enforcement in India. Chiefly, there are three kinds of situations that we will be discussing here: The first is straightforward and deals with the physical privacy intrusion caused by the execution of search and seizure orders during the investigation of infringement. The second situation involves the violation of privacy through the misappropriation of confidential information. The last situation involves the wrongful appropriation of a person’s persona or their ‘publicity’ – the photographs of celebrities, for instance – for private gain. Instances of each of these situations, and the manner in which the courts have negotiated the privacy claims that have arisen are described in the sections that follow. In addition, Copyright law, dealing as it does mainly with offences of the nature of unauthorised publicity/publication putatively inscribes certain spaces and activities as either public or private. The concluding section of this paper examines the notion of the private that emerges from a tapestry view of various sections of the Copyright Act.

Copyright Enforcement

Context setting

Over the past several decades there has been an increasing awareness globally – and within India – of the importance of 'knowledge societies' which, in contrast to earlier industrial or agrarian societies, leverage 'information' as the key raw material and output of a range of productive activity. As one UNESCO Report puts it "Knowledge is today recognized as the object of huge economic, political and cultural stakes"[1].

In this new paradigm, investment in Information and Communications Technology (ICT), the enactment of strong Intellectual Property laws, and their strict enforcement are prescribed as imperative in facilitating the transition away from the older economic modes. The promise of the knowledge society is particularly alluring for developing countries, like India, where it is viewed as a vehicle for achieving what Ravi Sundaram has termed 'temporally-accelerative' development[2], through which we would be able to transcend our "historical disabilities", and achieve parity with the incumbent masters of the world. [3]

In their eagerness to provide the best supportive conditions to usher in this coveted knowledge society, nations have been tightening their Intellectual Property regimes – including copyright law. This has entailed a two fold expansion, firstly, in the scope of copyright to include, for instance, ‘technological protection measures’ within their ambit and secondly, in the powers of investigation, search and seizure put at the disposal enforcement agencies. In addition, as we shall see, courts in India have enthusiastically bought into this vision of a knowledge economy, and this has fuelled their eagerness to craft innovative – if legally unsound – orders which put tremendously intrusive powers in the hands of copyright owners. Taken together, these developments have taken their toll on the privacy of individuals which this section will explore in further detail. We begin with a brief description of the statutory mechanism for copyright enforcement – both civil and criminal - under the Copyright Act. We then move on to the way courts have crafted new orders that magnify the powers of copyright owners to the detriment of the privacy of individuals.

Civil and Criminal Enforcement under the Copyright Act

The Copyright Act provides for both civil and criminal remedies for infringement. Section 55 provides for civil remedies and declares that, upon infringement, "the owner of the copyright shall be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right." Civil suits are instituted at the appropriate district court having jurisdiction – including where the plaintiff resides.

Similarly, Chapter XIII (Sections 63-70) provides a range of criminal penalties for infringing copyrights which are typically punishable with terms of imprisonment that “may extend up to three years” along with a fine. These offences would be taken cognizance of and tried at the court of the Metropolitan Magistrate or Judicial Magistrate of the First class [Sec 70], in the same manner as all cognizable offences[4] in India i.e., by following the procedures under the Code of Criminal Procedure, 1973. Section 64 of the Copyright Act dealing with police powers was amended in 1984 to give plenary powers to police officers, of the rank of a sub-inspector and above, to seize without warrant all infringing copies of works “if he is satisfied” that an offence of infringement under section 63, “has been, is being, or is likely to be, committed”. Prior to amendment, this power could only be exercised by a police officer when the matter had already been taken cognizance of by a Magistrate. Prima facie, this is a very sweeping power since its exercise is unsupervised by the judiciary and only depends on the “satisfaction” of a police officer. To put matters in perspective, under the Income Tax Act, dealing with the far more sensitive issue of tax evasion, a search and seizure can only be conducted based on information already in the possession of the investigating authority.[5]

In Girish Gandhi & Ors. v Union of India[6], a case before the Rajasthan High Court, the petitioner, who ran a video cassette rental business, challenged the constitutional validity of the wide powers granted to police officers under this section. Citing various instances of violations of privacy that the abuse of the section could occasion, the petitioner contended:

"The provisions of section 64 itself gives arbitrary and naked powers without any guidelines to the police officer to seize any material from the shop and thus, drag the video owners to the litigation. He has given instances in the petition that police officer usually demands for video cassettes to be given to them free of charge for viewing it at their homes and in case, on any reason either the video cassette is not available or it is not given free of charge, there is likelihood that police officer shall misuse his powers and try to seize the material for prosecution under the various provisions of the Act."

Although the High Court dismissed the petition on the grounds that it did not disclose any actual injury to the petitioner, it upheld the constitutionality of the section by reading the word "satisfaction" to mean that the "police officer will not act until and unless he has got some type of information on which information he is satisfied and his satisfaction shall be objective."

[Section 64] is also not arbitrary for the reason that guidelines and safeguards are provided under Sections 51, 52 and 52A and Section 64(2) of the Copyright Act, coupled with the fact that it is expected of the police officer that he would not act arbitrarily and his satisfaction shall always based on some material or knowledge and he shall only proceed for action under Section 64 in a bona fide manner and not for making a roving inquiry. (emphasis added)

Despite the pious hopes expressed in this decision, they do not appear to have influenced the actual behaviour of police officers. In May 2011, the Delhi High Court struck down a notification issued by the Commissioner of Police which had instructed all subordinate functionaries of the police to "attend to and provide assistance" whenever any complaint "in respect of violation of the provisions of Copyright Act, 1957" was received from three companies: Super Cassettes Industries Limited, Phonographic Performance Ltd and Indian Performance Right Society Ltd. This virtually amounted to the commandeering of the criminal enforcement system by a few private owners for their own private interests. In their suit, the petitioner — Event and Entertainment Management Association — had contended that the police machinery "cannot be made to act at the behest of certain privileged copyright owners". Striking the notification down, as unconstitutional, Justice Muralidhar of the Delhi High Court held:

"To the extent the impugned circular privileges the complaints from SCIL over other complaints from owners of copyright it is unsustainable in law for the simple reason that there has to be equal protection of the law in terms of Article 14 of the Constitution. The police are not expected to act differently depending on who the complainant is. All complaints under the Act require the same seriousness of response and the promptitude with which the police will take action, Likewise, the caution that the Police is required to exercise by making a preliminary inquiry and satisfying itself that prima facie there is an infringement of copyright will be no different as regards the complaints or information received under the Act[7]."

The Judge also issued some welcome remarks on the manner in which complaints under Section 64 were to be handled:

In order that the power to seize in terms of Section 64 of the Act is not exercised in an arbitrary and whimsical manner, it has to be hedged in with certain implied safeguards that constitute a check on such power. Consequently, prior to exercising the power of seizure under Section 64(1) of the Act the Police officer concerned has to necessarily be prima facie satisfied that there is an infringement of copyright in the manner complained of. In other words, merely on the receipt of the information or a complaint from the owner of a copyright about the infringement of the copyrighted work, the Police is not expected to straightway effect seizure. Section 52 of the Act enables the person against whom such complaint is made to show that one or more of the circumstances outlined in that provision exists and that therefore there is no infringement. During the preliminary inquiry by the Police, if such a defence is taken by the person against whom the complaint is made it will be incumbent on the Police to prima facie be satisfied that such defence is untenable before proceeding further with the seizure.(emphasis added)[8]

This decision significantly tempers the severity of possible searches and seizures conducted by the police under Copyright Law. It advances the cause of privacy by reining in the power of the state to arbitrarily intrude on citizens.

Parallel to the attempt at ‘hedging in’ of police powers in criminal enforcement by this High court, there has been a move to expand powers of investigative bodies in civil suits. The next sub-section looks at two innovations by courts – Anton Piller Orders and John Doe orders – which are mechanisms unwarranted by civil procedural law, but crafted by high courts specifically to deal with copyright investigation.

'Anton Piller' orders and 'John Doe' Orders

In addition to the extensive police powers under the Copyright Act mentioned above, plaintiffs have other, equally intrusive powers at their disposal. In the past decade it has become common for copyright owners and owners-associations to employ civil procedure to emulate the same kind of invasiveness. This is done via the mechanism of so-called ‘Anton Piller’ orders - orders obtained unilaterally ‘ex-parte’ (in the absence of the defendant) from civil courts which permit court-appointed officers, accompanied by representatives of the plaintiffs themselves, to search premises and seize evidence without prior warning to the defendant. Frequently, courts have also issued ‘John Doe’ orders[9] –orders to search and seize against unnamed/unknown defendants - which virtually translates into untrammelled powers in the hands of the plaintiffs, aided by court-appointed local commissioners, to raid any premises they set their eyes on.

Although the authority of the courts under Indian law to grant these orders is suspect[10], they have virtually been regularized in practice over the past decade through routine issual by the High Courts, especially the Delhi High Court. This has led to a widespread phenomenon of powerful copyright owning groups such as the Business Software Alliance and the Indian Performing Right Society Limited managing to successfully assume for themselves almost plenary powers of search and seizure as they go about knocking on the doors of small businesses and demanding to be allowed to audit their software. An anonymous post on the popular Indian Intellectual Property Weblog ‘Spicy IP’ graphically conveys the invasiveness inherent in the execution of these orders:

Ghost Post on IP (Software) Raids: Court Sponsored Extortion?[11]

Picture this:

You are working in your office one day, when all of a sudden, a group of people arrive unannounced brandishing a court order. The order allows them to walk into your office and conduct an audit of all your office computers to collect evidence of the use of unlicensed software in your office.

This group consists of a court-appointed commissioner, lawyers representing the plaintiff, and technical persons who will carry out the actual software audit.

Knowing that to disobey the order will amount to a contempt of court, you allow the group to carry out the audit.

The audit lasts several hours and continues well into the night. Needless to say, it is physically and emotionally draining on you as your work has come to a stand-still. Everyone around you knows there is some court proceeding going on. You have already lost face with your employees, and possibly even clients who have visited your office during the audit.

As you have several dozen computers purchased over a period of time, and the audit is conducted unannounced, you may not have the time to gather documentation and invoices demonstrating the purchase of licensed software.

While the court order allows you to back up your valuable client and business data, the plaintiff’s lawyers don’t allow you to do so, stating that documents/ data found on machines that contain any unlicensed software may not be backed up.

All computers found with copies of what the plaintiff’s lawyers are calling unlicensed software are seized and sealed. You do not have the time, presence of mind or legal representation to argue that such copies may be backup copies allowed under the law, or that therefore several, or all of the seized machines are not liable to be seized, or that such copies are actually allowed under the software license.

Even more importantly, your licensed servers are seized because they are found to contain back-up copies of software, allowed under the law, but deemed infringing by the plaintiff’s lawyers.

At the end of the audit, you are informed that your computers contain copies of unlicensed software to varying degrees. You are made to sign a report prepared by the commissioner, along with sheets that represent the software audit of each computer in your office.

Most of your computers and servers are seized and sealed. You are told that you cannot touch them till the court allows you to. You are not even allowed to separate the hard drives of those machines that contain the alleged unlicensed software, for the purpose of seizure, so as to enable you to continue using the rest of the machine, even though the court order clearly states that only storage media containing the unlicensed software is to be seized.

In a 2008 case, Autodesk Inc vs. AVT Shankardass[12], the Delhi High Court – which happens to be the most enthusiastic issuer of Anton Piller orders[13] –issued guidelines on the considerations which judges should weigh before granting such orders in software piracy cases. Worryingly, the guidelines stipulate that "The test of reasonable and credible information regarding the existence of pirated software or incriminating evidence should not be subjected to strict proof". Instead the court prescribes that "It has to be tested on the touchstone of pragmatism and the natural and normal course of conduct and practice in trade."

The Court also included a few guidelines meant to safeguard the defendant. These include the possibility of requiring the plaintiff to deposit costs in the court "so that in case pirated software or incriminating evidence is not found then the defendant can be suitably compensated for the obtrusion in his work or privacy." Although on the face of it, these guidelines threatened to open up the floodgates for the granting of Anton Pillar orders, in fact, these fears seem not to have been realized. The privacy-invasive ambitions of IP owners have been subverted by a combination of the security requirements stipulated in the Autodesk guidelines above, the judiciary’s own inefficiency/inconsistency and a greater assertiveness and defiance on the part of defendants. The following passage from the 2011 Special 301 India Country Report on Copyright Protection and Enforcement[14], prepared by the IIPA, records the industry’s frustrations in obtaining Anton Pillar orders from the courts over the past year:

Unfortunately, in 2010, such enforcement efforts have become much less effective due to judges imposing conditions on such orders.

With periodic changes to the roster of judges on the Original Side Jurisdiction of the Delhi High Court (which is done as a matter of routine and procedure where the roster changes every 6 months), BSA reports: 1) the imposition of security costs on Plaintiffs; 2) the grant of local commission orders without orders to seize and seal computer systems containing pirated/unlicensed software; 3) granting the right to Defendants to obtain back up copies of their proprietary data while at the same time ensuring that the evidence of infringement is preserved in electronic form; 4) assigning a low number of technical experts for large inspections, making carrying out orders more time-consuming and raising court commissioners’ fees; and 5) ineffective implementation and lack of deterrence from contempt proceedings against defendants who disrupt or defy Anton Pillar orders.[15]

Notwithstanding this temporary setback, Anton Piller orders and John Doe orders remain powerful weapons in the arsenal of large copyright owners who continue to use it in ways that are extremely intrusive. These orders exemplify an instance of how courts rarely reflect on the privacy implications of the orders that they themselves issue –similar action undertaken by the executive would have most likely invited the court’s consideration on whether they violate privacy.

In the next section we move on to private ‘technological’ measures of enforcing copyright which are likely to receive statutory sanction.

Technological Measures

In the light of the industry’s perception of a weakening of its enforcement options due to the judiciary’s waning enthusiasm, it remains to be seen what new manoeuvres they would make to strengthen enforcement. One foreseeable arena of conflict would be the new measures proposed to be included in the Copyright Act that criminalise the circumvention of ‘technological protection measures’ (TPMs) built into software by manufacturers. The proposed new Section 65A criminalises the circumvention of “an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act," "with the intention of infringing such rights”. This is punishable with imprisonment up to two years and a fine. However the section also creates a vast list of exceptions including research, testing, national security etc which make it a comparatively soft tool in the hands of prosecutors. Among the list of exceptions is a clause that enables the circumvention of TPMs in order to facilitate purposes that are 'not expressly prohibited' – including, conceivably, to exercise fair dealing rights under Section 52. Although this is a welcome provision, it requires, as a condition of its exercise, that the person ‘facilitating the circumvention’ maintain a record of the persons for whose benefit this has been done. This has led to apprehensions of violations of privacy especially from disability rights groups, who would potentially be the biggest users of this section as it would enable them to make electronic content more widely accessible. However, the lawful exercise of this right would mean that each instance of use of electronic content – say an e-book – by a disabled person would be recorded, which could deter them from accessing content. It would also clearly amount to a violation of their privacy compared to other analog users who are not required to similarly maintain logs each time they share books, for instance.

On the whole, despite the effect these measures have of diminishing absolute control over our electronic resources, the fact that the IIPA - which has been one the most rapid ‘defenders’ of IP - has consistently complained about their inadequacy in its Special 301 Reports[16] gives us some cause for optimism that the privacy invasions it could occasion would not be too severe.

Meanwhile, in a first of its kind, in 2005 the High Court of Andhra Pradesh permitted the prosecution, under the Copyright Act, of persons accused of having circumvented technological protection measures in mobile devices.

In Syed Asifuddin and Ors. v The State of Andhra Pradesh [17] the accused had altered the software on the mobile handsets provided by one service provider (Reliance), so that the same handset could be used to access the network of a rival provider (Tata Indicom). The Court observed that "if a person alters computer programme of another person or another computer company, the same would be infringement of the copyright." The matter was then relegated to the trial court to receive evidence on whether in fact such alteration had occurred.

This ruling, if correct, effectively negates the need for any amendment to the law since circumvention of technological measures typically involves an unauthorized alteration of copyrighted code. Of course it would always be open to the defendant to assert his fair dealing rights in defence, but that issue was not deliberated upon by the High Court in this instance.

Portents

With the terrain of copyright infringement increasingly shifting from ‘street piracy’ to online piracy, it remains to be seen how innovations in copyright enforcement impact privacy. Three events are particularly interesting in this context.

In August 2007, a techie from Bangalore was arrested on charges of having posted incendiary images of a popular folk hero on a website. He had been traced based on the IP Address details provided by a leading ISP. It later turned out that the IP address information was incorrect. By the time the error was noticed, he had already been held in jail illegally for a period of 50 days.[19] Shocking as this incident is, it offers a portent of the gravity of the possible privacy abuses that we are likely to witness in the years to come as copyright owners begin to hunt down infringers on the Internet.
In 2006, the Delhi High Court the pioneer among the Indian Judiciary in issuing John Doe orders added another feather to its cap by permitting the filing of a suit against an IP address. In a case of defamation by email from an unknown sender, a company was able to successfully file a suit against the IP address and obtain an order against the ISP to track down the user who was later impleaded as a party to the suit. This case and the growing number of John Doe orders issued, indicates that the judiciary in India has been quite willing to partner with litigants in their fishing expeditions. While it cannot be gainsaid that this has aided the legitimate interests of litigants, this has come at the price of a callous disregard for the interests of consumer privacy in India, which, as the incident described above highlights, could easily descend into a full blown human rights violation.
With the arrest in November 2010 of a four-member gang from Hyderabad for uploading media content – including popular film titles - on Bittorrent, the popular online file sharing tool, the industry has signalled its capacity and willingness to take the battle over copyright to the Internet.[20] New rules notified under the Information Technology Act make it mandatory for 'intermediaries' (ISPs) to co-operate in locating and removing ‘infringing content’ that is stored or transmitted by them.[21] This will facilitate untrammelled access to users by copyright industries.

Although it is too early to predict the future for the Internet that these developments will result in, they are definitely a source of apprehension from the perspective of privacy.

Copyright and Confidential Information

Although the protection of 'confidential information' and 'copyright' occupy distinct realms in the law[22], they converge occasionally, and copyright has been used as an instrument by people and organisations to protect their confidential information. In fact it has become quite routine for written pleadings by plaintiffs in cases to assert the omnibus infringement of their ‘copyrights, confidential information, trade secrets, trademarks designs etc’ without specifying which of the claims is urged. For instance in Mr. M. Sivasamy v M/S. Vestergaard Frandsen[23] a case before the Delhi High Court, the plaintiffs claimed that. "Defendants are violating the trade secrets, confidential information and copyrights of the plaintiffs.”; Similarly in Dietrich Engineering Consultant v Schist India & Ors , before the Bombay High Court, the plaintiffs contended"..the suit is filed to prevent unauthorized and illegal use of the plaintiffs confidential information and infringement of the 1st plaintiffs Copyright".[24]

In one of the earliest cases of this kind, Zee Telefilms Ltd. v Sundial Communications Pvt. Ltd, the Bombay High Court delivered a ruling in favour of the plaintiffs on both grounds of copyright infringement and confidential information. Here the employees of the plaintiffs – a company engaged in the business of producing television serials - had developed the concept for a program which they had registered with the Film Writers Association. Subsequently, they made a confidential pitch of the concept to the representatives of the defendants, a well known TV channel. Although initially the defendants appeared reluctant to take the concept forward, they proceeded later on, without the authorization of the plaintiffs, to produce a TV serial that closely mirrored the ideas contained in the show conceived by the plaintiff. In an action seeking to restrain the defendants from proceeding with their production, the High Court agreed with the plaintiff’s claims both on the count of copyright infringement and confidentiality. Curiously, the determination of both issues turned on the similarities between the plaintiff’s and defendant’s concepts – which is traditionally a determination relevant only to copyright cases. On the issue of confidentiality, the court held "Keeping in view numerous striking similarities in two works and in the light of the material produced on record, it is impossible to accept that the similarities in two works were mere coincidence...the plaintiffs' business prospect and their goodwill would seriously suffer if the confidential information of this kind was allowed to be used against them in competition with them by the defendants."

Although a clear line is demarcated between the claims of confidentiality and copyright in this case, this distinction is less sharp in other cases of the same nature.

In a more recent case Diljeet Titus, Advocate v Mr. Alfred A. Adebare & Ors[25] four associates of the plaintiff’s law firm quit together to start their own practice. While leaving they took documents they had drafted including agreements, due diligence reports and a list of clients along with them. The plaintiff filed a suit for injunction, asserting both that this material was confidential and that he owned the copyrights over them. The Delhi High Court agreed and issued an injunction restraining the defendants from “utilizing the material of the plaintiff forming subject matter of the suit and from disseminating or otherwise exploiting the same including the data for their own benefit.” What is interesting in this case is the conflation of confidentiality and copyright – both in the allegations of the plaintiff and the rebuttals of the defendant who sought to resist claims of confidentialty on grounds that they had themselves authored the papers in question.

Curiously, where copyright and confidentiality claims coincide, it would appear that the parameters of determining copyright infringement end up determining the issue of confidentiality as well.

In the next section we move on to the last copyright/privacy issue that we had flagged in the introduction – the invocation of copyright in aid of the ‘right to publicity’ of individuals which can be read as a kind of privacy claim.

Copyright and Publicity

Do we have a copyright over our identities – our names, our appearances, our life histories, our reputation and our bodies - so that we have an actionable interest in preventing their deployment in public without our express authorization?

This question has arisen in a limited set of cases in India that raise interesting questions. As with the confidentiality cases discussed above, the lines separating ‘defamation’ actions from ‘copyright’ claims is not brightly drawn in these cases. Neither is the line linking copyright to the protection of privacy clearly evident. All one can say with confidence is that copyright and privacy are two words tossed into the plaints by the plaintiffs while asserting their claims.

In one of the most high-profile cases of its kind, Phoolan Devi v Shekhar Kapoor[26] the Delhi High Court was faced with the question of whether ‘public figures’ are entitled to any degree of control over the representation of their lives. Here the petitioner, Phoolan Devi, a reformed bandit, had 'licensed'[27] the production of a biopic on her life to the defendant, a film director of note, who was to consult the plaintiff’s own writings and those of her authorised biographer in making the film. However, the defendant – the director of the biopic – had exceeded this mandate and also depicted incidents that emerged from various newspaper accounts – including a graphic gang rape scene where the plaintiff was the victim, and a massacre which she had allegedly orchestrated. Although generally well-known, neither of these incidents were either admitted to by the plaintiff herself or mentioned in the plaintiff’s own writings and those of her biographer. Even worse, the film had not been shown to her even several months after it had been released to national and international audiences.[28] In Arundhati Roy’s moving words the producers of the film “[R]e-invent her life. Her loves. Her rapes. They implicate her in the murder of twenty-two men that she denies having committed. Then they try to slither out of showing her the film!”[29]

One of the contentions that the petitioner’s advocate had advanced was that the defendant had no right “to mutilate or distort the facts as based upon prison diaries” and that any such distortion would fall afoul of her right under Sec 57 of the Indian Copyright Act. This section confers certain ‘special rights’ on the author including the right to claim authorship and to restrain any distortion/mutilation or modification of the work that would be prejudicial to his/her honour or reputation.[30]

These rights survive any assignment of the copyright made by the author i.e. they can e asserted by the author above any contract entered into by her with third parties such as the producer in this case. The Court framed the question it was faced with in these terms:

[T]he question before me is whether such person like the plaintiff has no right to defend when someone enlarges the terrible facts, enters the realm of her private life, depicts in graphic details rape, sexual intercourse, exhibits nudity, portrays the living person which brings shame, humiliation and memories of events which haunts and will go on haunting the plaintiff, more so the person is still living. Whether the plaintiff has no right and her life can become an excuse for film makers and audience to participate in an exercise of legitimate violence with putting all inhibitions aside.

Ultimately, the High Court sided with the petitioner and issued an injunction restraining the defendant from exhibiting his film.[31] This decision was based more on a consideration of constitutional right to privacy principles than an evaluation of the plaintiff’s case under Copyright law. However, it does provide an interesting factual matrix for the exploration of the way in which protection of copyright and privacy might overlap.

In a contrasting case before the Bombay High Court, Manisha Koirala v Shashilal Nair & Ors [32] an injunction was sought against the release of a film in which the petitioner, a noted actress, was depicted in the nude through the device of a ‘body double’. Here the plot was entirely fictional and the plaintiff, a noted actress, had agreed to perform in the film with ‘substituted shots’ during the scenes in the story that involved nudity. Subsequently, she appears to have reconsidered this decision and objected to the very inclusion of these scenes in its final version. In her petition before the court, she alleged defamation and malicious injurious falsehood, arguing that the exhibition of the film would result in a violation her right to privacy "as the objectionable shots, attempt to expose the body of a female which is suggested to be that of the plaintiff". She contended that “the right to portray her on screen can only be exercised in a manner, which is subject to the fundamental principle that such portrayal can only be with her unconditional consent." "The present rendition" of her part in the film, she alleged was “an invasion of privacy as it is embarrassing and will cause irreparable damage to her reputation which remains untarnished thereby causing irreparable loss and injury”. Although Copyright is not invoked in this case by the petitioner, there is an audible echo of some of the reputational anxieties that had animated Phoolan Devi’s case mentioned above. The difference, however, is that in this case the petitioner’s claim was not grounded in a quest for control over her biography, but over the image of her body. Unlike the previous case, here the Court was unsympathetic to the petitioner’s claims. The court treated her previous ‘consents’ as determinative of all issues and dismissed her case holding:

"The Court ...cannot be a moral guardian in this context. ..It is.. clear to my mind that once having agreed to act in the film it will be too late for the plaintiff .. to hold that a case of defamation has been made out.. To maintain a case of malicious falsehood it must be held out that the statement was false. In the instant case what is sought to be contended is that the scenes involving the film artist would result in an action of malicious injurious falsehood or malicious falsehood by associating the plaintiff's with the scenes which she had not enacted.. The plaintiff was prima facie aware as earlier held and that the scenes formed part of the story board have been enacted by a double and consequently it cannot be said that in the present case the plaintiff has been able to establish a case of malicious falsehood."[33]

One of the facts that was relevant in the court’s decision was that the defendant, as the ‘holder of the copyright in the film’, had incurred vast expenditure in publicising its release. Here, in a reversal of the Phoolan Devi case, copyright is held up as a shield against a competing privacy claim. The issue of the extent of overlap between copyright and privacy however remains unsettled in law. In April 2007, the Madras High Court granted a temporary injunction against the publishers of an unauthorised biography of former Tamil Nadu Chief Minister Jayalalitha. In her petition she alleged that the biography “had been written without any verification of facts. Such a publication would spoil her image and damage her status in politics and public life.” Her petition contended that “No one has a right to publish anything concerning personal private matters without consent, whether truthful or otherwise, whether laudatory or critical.[34]

Although it does not reference Copyright law, this case is another illustration of the enduring relevance of the question of whether we are entitled to the exclusive authorship of our private life-stories.

The Private under the Copyright Act

In its various sections, the Copyright Act inscribes certain spaces and actions as either public or private. Specified activities are labelled public even though they are conducted within the domestic confines of one’s home. Similarly, activities that infringe copyright are nevertheless immunised from prosecution due to the fact that they are conducted for a ‘private’ purpose. In this concluding section of this paper, we try to piece together a narrative of privacy and the private domain that emerges from a combined reading of various sections and decisions under the Copyright Act.

We begin, here, by collating the Copyright Act’s various articulations of the ‘public’ and ‘private’. By treating them as intertwining, mutually constitutive terms, we proceed to analyse these various articulations in the Copyright Act with a view to seeing what account of the private realm may emerge.

Public/Publish

One of the key rights that most owners of copyrights enjoy is the exclusive right to "publish" or "communicate their work to the public".

The Act defines "publication" to mean “making a work available to the public by issue of copies or by communicating the work to the public”. Significantly, in case of dispute, if the issue of copies or communication to the public is “of an insignificant nature” it is deemed not to constitute a publication [Section 6]. This signals that the notions of publicity and publication under the Copyright Act are in some senses moored to the magnitude of the receiving public. The ‘private’ then is constituted, reciprocally, as the ‘insignificant public’.

Under the Indian Copyright Act, "communication to the public" occurs when a person makes any work “available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work”. Such communication occurs “regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.”[Section 2(ff)][35]

Private

The word ‘private’ is expressly referenced in four provisions of the Copyright Act.

Section 39 declares that “the making of any sound recording or visual recording for the private use of the person making such recording, or solely for purposes of bona fide teaching or research” would not violate the broadcast reproduction right or performer's right;
Section 51 which stipulates when copyrights are infringed declares that the “imports into India, any infringing copies of the work” would constitute an infringement except if it is only a single copy of any work that is imported “for the private and domestic use of the importer”.
Section 52(1) of the Copyright Act lists certain acts as not infringing of copyright. These include:

(a) a fair dealing with a literary, dramatic, musical or artistic work, not being a computer programme, for the purposes of private use, including research. A proposed amendment to this section seeks to extend this protection to all ‘personal’ uses in addition to ‘private uses including research[36]. ‘Personal use’ has been interpreted in non-copyright contexts to include the family members of the person living with him.[37] The definition of ‘person’ under the General Clauses Act includes a “company or association or body of individuals, whether incorporated or not”. Although the case law on the point is scant[38], it would be interesting to see if ‘personal use’ can be read to include the use by companies internally, thereby casting a shroud of privacy on corporations for the purpose of copyright.
(p) the reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access.

In addition to the provisions listed above, Section 52 the Act also shields certain spaces and occasions as immune from the charge of copyright infringement (although they are not specially designated as ‘private’). These include educational institutions[39], non-profit clubs, societies[40], religious institutions[41] and religious ceremonies including marriages.[42]

Perhaps the most elaborate calibration of the boundaries between the 'private' and 'public' under the Indian Ccopyright Act by the judiciary occurs in the case Garware Plastics and Polyester vs Telelink & Ors[43]., decided by the Bombay High Court in 1989. The case called for the determination of whether films transmitted via neighbourhood cable networks and viewed in the privacy of customers’ homes would constitute an unauthorised ‘communication to the public’ under the Copyright Act. Here the defendants had purchased video tapes of popular films and begun transmitting them over cable networks owned by them. For this they charged a monthly maintenance fee from their customers. Under the Copyright Act then in force, ‘communication to the public’ was defined simply as "communication to the public in whatever manner, including communication through satellite.” After an extensive review of English law on the subject, the court ruled that this did constitute an unauthorised communication to the public:

"Whether a communication is to the public or whether it is a private communication depends essentially on the persons receiving the communication. If they can be characterized as the public or a protein of the public , the communication is to the public…From the authorities the principal criteria which emerge for determining the issue are(1) the character of audience and whether it can be described as a private or domestic audience consisting of family members or members of the household, (2) whether the audience in relation to the owner of the copyright can be so considered…Applying the test of the character of the audience watching these video films , can this audience be called a Section of the public or is this audience a private or domestic audience of the defendants ? In the present case it cannot be said that the audience which watches video films shown by the defendants consists of family members and guests of the defendants. The video film may be watched by a large Section of the public in the privacy of their homes. But this does not make it a private communication so as to take it our of the definition of "broadcast" under the Copyright Act, 1957.

It is true that the network operates through the connection of a cable to all these various apartments or houses. But this cannot in any way affect the character of the audience. The viewers are not members of one family or their guests. They do not have even the homogeneity of club members of one family or their guests. They do not have even the homogeneity of a club membership.[44] (emphasis added)

A central feature emerging from this case that distinguishes public form private in Copyright law is homogeneity or affiliation: that space is marked ‘private’ where a pre-affiliated group – united either by kinship or association in pursuit of a common goal – comes together in pursuit of a non-commercial common interest. Conversely, ‘Public’ is where the unaffiliated congregate. On the face, this accords with the spirit of the various fair dealing rights under the Copyright Act which carve out immunised spaces for institutions that correspond to these definitions – educational institutions, religious institutions and ceremonies, amateur clubs etc are immune from infringement actions because, one could say, their activities are ‘private’.

In 1994 the Copyright Act was amended to fortify this conclusion by expanding the definition of ‘communication to the public’ to include ‘communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public;” (Sec 2(ff), Explanation)

Conclusion

I would like to conclude this paper with some reflections on the assertion I made in the introduction about copyright law being both an instrument for the protection and violation of privacy. From the discussion in the previous sections, it follows:

Firstly, that 'property' – as embodied by copyright law – is, at best, an unreliable guarantor of privacy. It works when bussed along with dignity claims– for instance the Phoolan Devi case where the petitioner’s suffering underlay her property claim– but fails when asserted as ‘property’ per se (as in Manisha Koirala’s case[45]). One does not (under the Indian Copyright Act, at least) have a reliable ‘property’ interest in one’s life story, bodily representation, name etc. This stands in contrast with other regimes such as the US where several states have enacted ‘Right to publicity’ statutes or have recognised publicity rights through common law processes.[46]

These rights can be read to offer people a 'property' means for protecting their privacy (by preventing unauthorised publicity) in those jurisdictions. Analogous claims are unavailable in India.

Secondly, that ‘property’ operates frequently as a license for the violation of privacy with impunity. This emerges most clearly from the cases of copyright investigation that we examined in Section 1.2 above. Pecuniary copyright interests appear to completely overwhelm any regard for competing privacy concerns.

Thirdly, that, notwithstanding the preceding two points, the copyright act does protect privacy in limited ways. Chiefly these are a) By conferring limited copyright on 'unpublished works', it enables authors to restrict their publication except on terms acceptable to them. b) The Act grants a very wide “Performer’s right” to performers and no sound or visal recording may be made of them without their express consent. No such recording can broadcast or communicated to the public without their consent. This gives a very powerful weapon of control in the hands of performers to restrict the extent to which representations of them are publicised. C) As mentioned above in the penultimate section of this paper, various fair dealing exceptions carve out spaces of privacy where infringing acts are granted immunity – for instance private uses, uses in educational institutions and libraries, etc.

Lastly, with the arena of copyright infringement shifting gradually to the internet, it is foreseeable that the IT Act will be employed with greater frequency in the coming years to do the work of copyright enforcement. The legal regime already supports this change through provisions in the IT Act which preserve all existing rights available under the Copyright Act [Section 81 (proviso) of the IT Act] and put new powers of take-down [see Intermediary Guidelines] in the hands of Copyright Owners. Thus on the one hand, copyright owners would be able to lawfully hack into potential infringers’ computers while enjoying immunity under the IT Act. On the other hand, ‘intermediaries’ would be legally bound to co-operate in copyright enforcement including, conceivably, handing over a number of personal details of those accused of copyright infringement. In other jurisdictions, such as the EU, such ‘co-operation’ is heavily policed by judicial oversight where personally identifiable information is involved[47]. Contrastingly, in India, with its diminished concerns for privacy and limited awareness of how IP address data can seriously imperil privacy, there is a very real threat that these provision will license the wholesale violation of online privacy.

Notes

[1]Anon, 2005. Towards Knowledge Societies, Paris: UNESCO. Available at: http://unesdoc.unesco.org/images/0014/001418/141843e.pdf [Accessed April 20, 2011].

[2]Sundaram says "Temporal acceleration was a significant part of the imaginary of developmentalism - this was inherent in the logic of 'catching up' with the core areas of the world economy by privileging a certain strategy of growth that actively delegitimized local and 'traditional' practices."

[3]This aspiration underlies several of the policy documents prepared in India in the last decade – Illustratively, the report submitted by the National Task Force on Information Technology (NTFIT) in 1998 captures this sentiment well: “For India, the rise of Information Technology is an opportunity to overcome historical disabilities and once again become the master of one's own national destiny. IT is a tool that will enable India to achieve the goal of becoming a strong, prosperous and self-confident nation. In doing so, IT promises to compress the time it would otherwise take for India to advance rapidly in the march of development and occupy a position of honor and pride in the comity of nations” Tiwari, Ghanshyam et al. Government of India. Central Advisory Board of Education, Ministry of Human Resource Development .Report of the Central Advisory Board of Education Committee On Universalisation of Secondary Education. New Delhi: 2005

[4]There is some ambiguity on whether offences under the Copyright Act punishable with imprisonment “which may extend to three years” are 'cognizable' or not. The Code of Criminal Procedure 1973 classifies all offences which prescribe a penalty of three years and above as cognizable and non bailable [First Schedule]. Offences which are punishable with imprisonment of less than three years are classified as ‘non-cognizable’ and ‘bailable’. In the absence of a definitive ruling from the Supreme Court on this issue, different High Courts have offered conflicting interpretations. See Singh, S. & Aprajita, 2008. Insight into the nature of offence of Copyright Infringement. Journal of Intellectual Property Rights, 13(6), pp.583-589. Available at: http://nopr.niscair.res.in/bitstream/123456789/2433/1/JIPR%2013%286%29%20583-589.pdf [Accessed May 12, 2011]. See also Agarwal, D.K., 2010. Arrest under the customs act ? Bailable or non-bailable offence. Translation Interpreting Services. Available at: http://translation-tech.com/blog/213/arrest-under-the-customs-act-bailable-or-non-bailable-offence/ [Accessed May 12, 2011]. The determination of this issue would have wide ranging implications since the police have a wider assortment of powers with respect to interrogation, arrest, search and seizure in the course of investigating cognizable offences than they have with respect to non-cognizable offences.

[5]"Where Director of Inspection or Commissioner in consequence of information in his possession, has reason to believe that any person having in possession of any money, etc.." has not disclosed it for purposes of Income Tax.

[6]AIR 1997 Raj 78 < http://indiankanoon.org/doc/661363/>

[7]Event and Entertainment Management Association v. Union of India (Delhi HC) Order dated 2nd May 2011 <http://courtnic.nic.in/dhcorder/dhcqrydisp_o.asp?pn=84697&yr=2011>. Harkauli, S., 2011. HC nullifies police circular on copyright issue. The Pioneer. Available at: http://www.dailypioneer.com/336974/HC-nullifies-police-circular-on-copyright-issue.html [Accessed May 9, 2011].

[8]Ibid

[9]As recently as April 2011, the Delhi high court restrained “cable operators nationwide from telecasting matches of the Indian Premier League (IPL) without authorization from MSM Satellite (Singapore) Pte Ltd, which owns the broadcasting rights. See Bailay, R., 2011. Cable operators can’t telecast IPL without authorization, says HC. Livemint. Available at: http://www.livemint.com/articles/2011/04/27212449/Cable-operators-can8217t-te.html?atype=tp [Accessed May 13, 2011]. For an early history of John Doe orders in India, see Krishnamurthy, N. & Anand, P., 2003. India Trade marks in a state of change. Managing Intellectual Property. Available at: http://www.managingip.com/Article/1321770/India-Trade-marks-in-a-state-of-change.html [Accessed May 13, 2011].

[10]These orders are granted by the Court supposedly under Section 75 read with Order 26 of the Code of Civil Procedure which empowers the court to appoint “Local Commissioners” to record evidence in special cases. I have stated my opinions elsewhere on why I believe these powers may not be invoked for the purpose of effecting routine searches and seizures in the manner as is currently being practiced by the higher judiciary – especially the Delhi High Court. See Iyengar, P., 2009. BSA’s response on Spicy IP – in perspective. Original Fakes. Available at: http://originalfakes.wordpress.com/2009/04/04/bsas-response-on-spicy-ip-in-perspective/ [Accessed May 10, 2011].

[11]Anon, 2009. Ghost Post on IP (Software) Raids: Court Sponsored Extortion? SPICY IP. Available at: http://spicyipindia.blogspot.com/2009/03/ghost-post-on-ip-software-raids-court.html [Accessed May 10, 2011].

[12]Autodesk Inc Vs. AVT Shankardass, Available at: http://delhicourts.nic.in/Jul08/Autodesk%20Inc%20Vs.%20AVT%20Shankardass.pdf [Accessed May 10, 2011].

[13]The 2011 Special 301 Country Report on India prepared by the IIPA specifically cites the Delhi High Court in this context, statng “The industry enjoys a very high success rate with respect to the grant of such orders at the Delhi High Court”. According to this report, the Business Software Alliance was able to obtain 34 such orders in 2009.

[14]Anon, 2011. Special 301 Report on Copyright Protection and Enforcement: 2011 India Country Report, International Intellectual Property Alliance. Available at: http://www.iipa.com/rbc/2011/2011SPEC301INDIA.pdf [Accessed May 9, 2011].

[15]Ibid at. Pp 41-42.

[16]The 2010 Special 301 Country Report lists the following defects of the proposed Section 65A: “(a) does not cover access controls and is limited only to TPMs protecting the exercise of exclusive rights; (b) covers only the “act” of circumvention and does not also cover manufacturing, trafficking in, or distributing circumvention devices or services; (c) does not define an “effective technological measure”; (d) contains an exception which would appear to permit circumvention for any purpose that would not amount to infringement under the act (thereby almost completely eviscerating any protection); (e) creates other overbroad exceptions; and (f) provides for only criminal and not civil remedies."

[17]Syed Asifuddin And Ors. v The State Of Andhra Pradesh, 2005 CriLJ 4314 (Andhra Pradesh HC ).

[18]Ibid.

[19]Holla, A., 2009. Wronged, techie gets justice 2 yrs after being jailed. Mumbai Mirror. Available at: http://www.mumbaimirror.com/index.aspx?page=article&sectid=2&contentid=200906252009062503144578681037483 [Accessed March 23, 2011]. See also Nanjappa, V., 2008. “I have lost everything.” Rediff.com News. Available at: http://www.rediff.com/news/2008/jan/21inter.htm [Accessed March 23, 2011].

[20]Pahwa, N., 2010. Hyderabad Police Arrests Torrent Uploaders - MediaNama. MediaNama. Available at: http://www.medianama.com/2010/11/223-hyderabad-police-arrests-torrent-uploaders/ [Accessed May 12, 2011].

[21]GSR 314(E) Dated 11 April 2011: Information Technology (Intermediaries guidelines) Rules, 2011 http://www.mit.gov.in/sites/upload_files/dit/files/GSR314E_10511(1).pdf [Accessed May 12, 2011].

[22]See Zee Telefilms Ltd. v Sundial Communications Pvt. Ltd., 2003 (5) BomCR 404 (Bombay High Court 2003).

[23]Mr. M. Sivasamy v M/S. Vestergaard Frandsen (Delhi High court 2009).< http://indiankanoon.org/doc/916718/>

[24]Dietrich Engineering Consultant v Schist India & Ors (Bombay High Court, 2009) < http://indiankanoon.org/doc/1634545/>

[25]Mr. Diljeet Titus, Advocate vs Mr. Alfred A. Adebare And Ors, 130 DLT 330 (Delhi High Court 2006).

[26]Phoolan Devi v Shekhar Kapoor And Ors. (1994). DLT (Vol. 57 (1995), p. 154). Retrieved from http://indiankanoon.org/doc/793946/

[27]The conditions under which this license were obtained speak eloquently to the ills of the current copyright system. According to Phoolan Devi’s lawyer, the noted advocate Indira Jaisingh, the contract was signed by Phoolan Devi while she was behind prison bars. She did not speak or understand Hindi or English and only spoke in a local dialect. The copyright contract was written entirely in English and gave her a paltry sum or Rs. 2 lakh – which was a pittance considering the budget and projected returns from the film. Jaisingh, I., 2001. Supreme Court lawyer Indira Jaisingh pays tribute to Phoolan Devi. Available at: http://www.rediff.com/news/2001/jul/26spec.htm [Accessed June 10, 2011]. Arundhati Roy’s two superb critiques of the film and its director movingly capture why this is not a simple case of copyright assignment. See Roy, A., 1994. The Great Indian Rape Trick - I. Sawnet. Available at: http://www.sawnet.org/books/writing/roy_bq1.html [Accessed June 10, 2011].; Roy, A., 1994. The Great Indian Rape Trick - II. Sawnet. Available at: http://www.sawnet.org/books/writing/roy_bq2.html [Accessed June 10, 2011].

[28]Ibid, Roy, A., 1994. The Great Indian Rape Trick - I.

[29]Ibid, Roy, A., 1994. The Great Indian Rape Trick - II

[30]Section 57 of the Act reads “Author’s Special Rights: ‘Independently of the author's copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right-

(a) to claim authorship of the work; and
(b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation:”

[31]The case was later settled out of court with Phoolan Devi being able to secure a substantially higher compensation. Ultimately, the case was not about the depiction of rape generally, but primarily about Phoolan Devi’s sovereign right to decide the terms on which her own life would be represented.

[32]Manisha Koirala v Shashilal Nair & Ors. (2002). BomCR (Vol. 2003 (2), p. 136). Retrieved from http://indiankanoon.org/doc/1913646/

[33]Ibid

[34]Anon, 2011. High Court Grants Injunction Till June 7 Against Publishing Book on Jayalalithaa. The Hindu, p.01. Available at: http://www.hindu.com/2011/04/27/stories/2011042762360100.htm [Accessed May 12, 2011].

[35]For a more dispersed account on the concept of the ‘public’ under Indian law, See Iyengar, P, ‘Where the private and the public collide’, iCommons Lab Report, September- October 2007, pp. 7-8, Icommons.org, < http://archive.icommons.org/articles/what-is-public> last visited May 2011

[36]Copyright (Amendment) Bill 2010 http://prsindia.org/uploads/media/Copyright%20Act/Copyright%20Bill%202010.pdf

[37]See Sivasubramania Iyer v. S.H. Krishnaswamy AIR 1981 Ker 57 , a case under Kerala Buildings (Lease & Rent Control) Act 1965.

[38]Goods purchased for the private use of a corporation would be goods purchased for the ”personal use” of the corporation. 158 IC 703.

[39]52(1)(g), (h) and (i)

[40]52(1)(k) and (l)

[41]52(1)(l)

[42]52(1)(za)

[43]AIR 1989 Bom 331, 1989 (2) BomCR 433, (1989) 91 BOMLR 139 <http://indiankanoon.org/doc/858705/>

[44]Ibid.

[45]At first glance this distinction may seem facile since even Manisha Koirala invoked ‘reputational harm’ as a prop to buttress her property claim. However, I believe this case was complicated by the fact that the court had to consider whether the display of someone else’s body could have implicated Manisha Koirala’s privacy/dignity. Koirala was, in effect, arguing that she had absolute ‘proprietorial’ control over all representations of her body – a property argument which the court was unwilling to concede.

[46]See Footnote 90 and accompanying text in Samuelson, P., 2000. Privacy as Intellectual Property? SSRN eLibrary; Stanford Law Review. Available at: http://ssrn.com/paper=239412 [Accessed on June 14, 2011].

[47]Lebatard, F.-R., Copyright Enforcement and the Protection of Privacy in France. Translegal. Available at: http://www.translegal.com/feature-articles/copyright-enforcement-and-the-protection-of-privacy-in-france [Accessed June 14, 2011].

For more details visit https://cis-india.org/internet-governance/blog/privacy/copyright-enforcement

The New Right to Privacy Bill 2011 — A Blind Man's View of the Elephunt

Prashant Iyengar — 2012-02-29T05:45:41Z

Over the past few days various newspapers have reported the imminent introduction in Parliament, during the upcoming Monsoon session, of a Right to Privacy Bill. Since the text of this bill has not yet been made accessible to the public, this post attempts to grope its way – through guesswork – towards a picture of what the Bill might look like from a combined reading of all the newspaper accounts, writes Prashant Iyengar in this blog post which was posted on the Privacy India website on June 8, 2011.

I am relying entirely on the following three newspaper accounts in the Times of India, the Hindu and the Deccan Chronicle.

A Constitutional/Fundamental Right?

The Times of India piece which broke the story seems to have misunderstood/misquoted Law Minister Veerappa Moily. The article is titled “Right to privacy may become fundamental right” which connotes a constitutional amendment. However this is inconsistent with the later portions of the same article as well as subsequent newspaper accounts in DC and the Hindu. So its safe to assume that this will not be a fundamental right to privacy, but a statutory right to privacy – like what the Right to Information Act grants us.

Preamble

I’m extrapolating here from the Hindu article:

"To provide for such a right [of privacy] to citizens of India AND to regulate collection, maintenance, use and dissemination of their personal information."

So it’s an omnibus Privacy and Data Protection Law that’s being passed. How nice. This addresses some of the misgivings that we had last year against the "Approach Paper on Privacy" released by the Department of Personnel and Training.

Definition of ‘Right to Privacy’

The Hindu article appears to quote directly from the Bill.

Every individual shall have a right to his privacy — confidentiality of communication made to, or, by him — including his personal correspondence, telephone conversations, telegraph messages, postal, electronic mail and other modes of communication; confidentiality of his private or his family life; protection of his honour and good name; protection from search, detention or exposure of lawful communication between and among individuals; privacy from surveillance; confidentiality of his banking and financial transactions, medical and legal information and protection of data relating to individual.

This is a wonderfully expansive definition of the right to privacy which spans diverse areas including privacy of communications, reputational privacy, bodily/physical privacy, confidentiality, privacy of records and data protection. I’m especially pleased that this section does not limit this right to privacy only to claims against the state (as in the Right to Information Act).

The Deccan Chronicle article contains a slightly different definition of 'right to privacy' under the Bill. Here the right to privacy includes "confidentiality of communication, family life, bank and health records, protection of honour and good name and protection from use of photographs, fingerprints, DNA samples and other samples taken at police stations and other places."

This wording is slightly more granular, but less broad. I’m wondering if it is a part of the same section, or a different one entirely.

Interception

What is most interesting is the attempt made in this Bill at harmonization of interception rules across all modes of "communication". (Currently there are different rules/procedures that followed depending on the mode of communication used – Indian Post Act, Telegraph Act, IT Act.)

Here are some of the sweeping changes sought to be introduced:

The bill prohibits interception of communications except in certain cases with approval of Secretary-level officer – not below the rank of home secretary at the Central level and home secretaries in state governments
Mandatory destruction of intercepted material by the service provider within two months of discontinuance of interception.
Constitution of a Central Communication Interception Review Committee (CCIRC) to examine and review all interception orders passed (under all Acts?).
CCIRC empowered to order destruction of material intercepted under the Telgraph Act.
"unauthorised interception" (by whom?) punishable with a maximum of five years’ imprisonment, or a fine of Rs 1 lakh, or both, for each such interception. This makes it a cognizable, non-bailable offense.
Disclosure of legally intercepted communication by “government officials, employees of service providers and other persons” will be punishable with imprisonment up to three years. (It is unclear whether this will be a cognizable offence or not)

Data Protection

The Bill adds muscle to the newly introduced Data Protection Rules under the IT Act, by creating an overarching statutory regime for Data Protection.

Thus, the bill forbids "any person having a place of business in India but has data using equipment located in India" from collecting or processing, using or disclosing "any data relating to individual to any person without consent of such individual". I assume that there will be exceptions to this section. The wording of this section seems to preclude its application to the government (unless you can interpret the ‘government’ to mean ‘a person having a place of business in India’. I have no views on the likelihood of that argument.

The bill evidently authorizes the establishment of an oversight body called “Data Protection Authority of India” that will investigate complaints about alleged violations of data protection. The following appear to be the functions of this body

to monitor development in data processing and computer technology;
to examine law and to evaluate its effect on data protection
to give recommendations and to receive representations from members of the public on any matter generally affecting data protection.
to investigate any data security breach and issue orders to safeguard the security interests of affected individuals whose personal data has or is likely to have been compromised by such breach.

Video Surveillance

The bill includes a very interesting prohibition on "closed circuit television or other electronic or by any other mode", except in certain cases as per the specified procedure.

No further details are provided about the exceptions or the procedure and one expects the devil to be in the details.

Bodily Privacy

The bill prohibits "surveillance by following a person".

This innocuously worded provision has the potential to effect sweeping changes in the criminal administration of this country (if it is even applicable to the state police machinery) . Currently, Police Acts in the various states contain no provisions that enable a person to challenge the surveillance imposed on them. This new section could provide a powerful new shield to the victims of police harassment.

Impersonation and Financial Fraud

In a section apparently dealing with identity theft, the Bill criminalises inter alia "posing as another person when apprehended for a crime" and "using another’s identity to obtain credit, goods and services".

I think the first (at least) is unnecessary since it is already covered by the crime of Impersonation under the IPC.

Residual

A curious provision appears to be a fine imposed on “any persons who obtain any record of information concerning an individual from any officer of the government or agency under false pretext”. Such a person shall be punishable with a fine of up to Rs. 5 lakh.(unclear whether there is a term of imprisonment in addition).

It will be interesting to see how this section conflicts with the Right to Information under which no 'pretext' need be given to the public authority.

I also think it is ill-conceived to penalise the person obtaining the record of information – the government body in custody of the information should be made more responsible in scrutinizing the 'pretext' before handing over such information.

Tailpiece

That’s all I can make out from the three articles referenced. Looks like it’s going to be a really interesting bill. I’m optimistic about it for the sincere attempt it appears to make to grapple with the protean nature of Privacy concerns we encounter. Veerappa Moily has claimed that this bill will be introduced in the monsoon session in July but has also cautioned that "it’s difficult to commit the timeframe". I think we should make haste slowly with this Bill and hope that the Law Ministry will have the wisdom to solicit public comment before introducing it in Parliament.

I’d greatly appreciate someone sending me a copy of the bill if you have access to it.

Read the article published on the Privacy India website here.

For more details visit https://cis-india.org/internet-governance/blog/privacy/new-right-to-privacy-bill

A Street View of Private and the Public

Prashant Iyengar — 2012-03-21T09:34:23Z

Prashant Iyengar on how in the eyes of the law, the internet giant is like the homeless in India. This article was published by Tehelka on June 4, 2011.

Since last Thursday, Internet-search giant Google has been busy collecting images of roads in Bengaluru in order to launch its popular StreetView service for the city. It is a feature that allows users of Google Maps to virtually navigate and explore cities through a 360-degree, street-level imagery. To achieve this, Google drives vehicles with cameras mounted on them through each street and neighbourhood in a city, systematically capturing everything in their path, including buildings, roads, traffic, animals and human subjects.

Intrinsically, the idea is exciting for its ability to enable distant users to sample street life in cities and neighbourhoods that they may have never physically visited. Or, even for the exhilaration it permits of viewing familiar spaces virtually.

However, this technology has also raised interesting privacy concerns in countries where it has previously been launched. In April 2008, shortly after the service was first launched in the US, Google was sued by a couple who objected to the pictures of their home being publicly displayed. This suit was settled out-of-court two years later. Google had, meanwhile, made changes to their service, permitting users to "opt out" of the service, rendering similar suits unnecessary. Google has faced similar concerns in other jurisdictions, including Europe and Japan, and has successfully fended them off by adapting its service by voluntarily blurring faces of all individuals captured during the process and vesting more agency in the hands of users to take down information that offends them.

Putting aside the privacy debate over StreetView in other jurisdictions momentarily, I want to raise two questions about India and the Indian law in the context of StreetView: first, does Indian privacy law – that evanescent sub-topic of tort and constitutional law – contain anything useful or even informative which we can bring to bear on this discussion? And, do the specificities of the Indian street life merit a different approach to the privacy question?

On the first question, the legal right to privacy in India has been, for the most part, a child of the higher judiciary. However, despite a fairly substantial volume of case law that has accumulated by now that references "privacy", one cannot suppress a sense that the concept lacks, even today, a definitive articulation. The individual’s privacy in India today is an uneven concept – stronger in some situations and non-existent in others. It is a contingent, rather tame concept of a general right to privacy that we have, from which it is not possible to mount a confident attack against Google.

Given this state of indeterminacy about one’s right to privacy, a case for the extension of this right in public spaces seems even more far-fetched. Indeed, in specific cases, courts have dealt damaging blows to the emergence of such a concept. For instance, in a tort case from colonial times, it was held that a window overlooking a public street would not infringe the privacy of the neighbours across the street. Likewise, in a case involving sex workers, the Supreme Court held that they were not entitled to move freely in a public place due to the very subversive nature of the professions they practiced in private – signalling that the private seeps into the public only as a limiting or negative concept.

Against this context Google’s extension of its opt-out privacy principles to India is commendable, because they are not warranted by the current state of law in the country. Indeed, it may even result in a "wagging the dog" of privacy jurisprudence in India by seeding the notion of a limited "right to public anonymity", which is currently indeterminate in the Indian law. That individuals have no “legitimate expectation of privacy in a public place” is axiomatic in most other common-law jurisdictions and is one of the hidden legal ballasts that supports Google’s StreetView service. However, there has not yet been an occasion for the Supreme Court to pronounce on this question. It is very likely that the court will defer to international precedent on the matter. However, until this eventuality, the legal position on the question must be regarded as unsettled.

Turning briefly to the second question regarding the specificities of the Indian situation, India is home to one of the largest populations of urban homeless persons. To them the street, generally, and pavements and bridges, more specifically, are "home" regardless of their tenuous legal title to these claims. To casually dismiss their claims is to crudely conflate privacy with property, which is insensitive to the tragedies of urban life in India. In his insightful essay on filth and the public sphere, Sudipta Kaviraj makes the fascinating point that "for the poor, homeless and other destitute people" of India, "public means not-private spaces, from which they could not be excluded by somebody’s right to property.

It comprises assets which are owned by some general institution like the government or city municipality which does not exercise fierce vigilance over its properties as individual owners do, and which allows through default, indifference and a strangely lazy generosity, its owned things to be despoiled by those with out other means. Public space is a matter not of collective pride but of desperate uses that can range from free riding to vandalizing.

I would add here that this notion of public space is shared not just by the homeless but Google as well, which has taken advantage of the lazy generosity of the Bengaluru traffic police to appropriate images of the city for its purposes. Like the homeless, Google is willing to cede to competing private interests, if they are asserted strongly enough. (This makes Google StreetView, despite its origins in Mountain View in California, characteristically Indian!) In the past, Google has required users to submit documentary proof of their titles before their claims to opt out are honoured. In the context of the homeless particularly, honouring privacy in India may require a different approach. Fortunately for Google, the homeless are not likely to fiercely assert this right.

To conclude, I will like to clarify that I write to praise Google not to bury him, since Google is an honourable man. Over the past several decades, technology – from wire tapping to DNA tests to paternity tests – has been the site and discursive nucleus that has facilitated an efflorosence of privacy jurisprudence in the country. Two decades ago we did not have Facebook, Google, unsolicited calls and spam, and, correspondingly, neither did we have a sharp notion of our privacy. One awaits with optimism the kinds of changes in privacy jurisprudence that might emerge from StreetView.

Prashant Iyengar is a lawyer and consultant on privacy issues with the Centre for Internet and Society, Bengaluru.

He can be contacted at prashantiyengar@gmail.com.

Read the original published in Tehelka here

For more details visit https://cis-india.org/internet-governance/blog/privacy/street-view-of-private-and-public

Bloggers' Rights Subordinated to Rights of Expression: Cyber Law Expert

elonnai — 2012-03-21T09:35:06Z

Vijayashankar, an eminent cyber law expert answers Elonnai Hickok’s questions on bloggers' rights, freedom of expression and privacy in this e-mail interview conducted on May 19, 2011.

A set of rules relating to regulation of the Internet (mentioned in section 79 of the ITAA, 2008) was released in April 2011. In light of the rules framed under the IT Act, and as part of our research on privacy and Internet users, we have been looking into questions surrounding bloggers’ rights, freedom of expression, and privacy.

The new rules require among other things that intermediaries take down any content that could be considered disparaging. In practice, these rules will act to limit the ability of individuals to express their opinions on the Internet — especially for the bloggers. Though these requirements seem to only impact the freedom of expression of bloggers, a blogger’s privacy rights, especially in relation to the protection of their identity, are also pulled into question. Other issues surrounding bloggers’ rights and privacy include: if bloggers are identified as journalists, then whether they should be afforded the same protections and privileges, e.g., should bloggers have the right to free political speech and should intermediaries have freedom from liability for hosting speech or others’ comments? Are bloggers allowed to publish material that is under copyright on their website?

On May 19, 2011, through e-mail, I had the opportunity to interview Vijayashankar, an expert in cyber law, on issues regarding the rights of bloggers freedom of expression, and privacy. Vijayashankar has authored multiple books on cyber law, taught in many universities, and is an active leader of the Netizen movement in India. Below is a summary of the questions I posed to Vijayashankar and his responses.

I began the interview by trying to understand bloggers’ rights and how they are defined. Often the term 'bloggers' rights is used casually, but it is important to understand the different roles that a blogger plays in order to understand what his/her rights are, how they could be violated, and how they could be protected. Vijayashankar explained that a blog is comprised of two parties: a blogger and an intermediary – which is the application host. Bloggers have many different roles: authors, editors, or publishers of content, and thus, a blogger’s rights should be defined within these contexts. As authors, bloggers write their own article/blog or adds comments to others’ blogs. As such, they should have the freedom to express their thoughts and opinions and determine a level of privacy with which to maintain them, without regulation or censorship from a third party. Though the freedom of expression and privacy should be basic rights for blog authors, bloggers must also be held accountable and responsible for the content that they choose to make public by posting on accessible web pages.

The need for a blogger to be held responsible and accountable is similar to the limitation on speech that informs defamation law, and it means that a blogger cannot be entirely anonymous – at least not once a blog is public and is challenged. Thus, accountability must limit the right to be entirely private and anonymous. Though a blogger should be held accountable, the international implications give rise to thorny issues of jurisdiction and accountability under unforeseen laws: all of which raises the question whether, instead of local jurisdictions seeking to enforce their laws against potentially out-of-the-jurisdiction bloggers, an international third party should be entrusted with the responsibility of holding bloggers accountable and responsible – whether that takes the form of an organization like the WTO or WIPO or looks more like specially trained international arbitrators.

This challenge arises because bloggers live in different jurisdictions where different rules apply, but their opinions cross multiple borders and boundaries. This raises questions such as: Which jurisdictional law should the blogger be accountable to? Should a blogger be held responsible for actions that are considered violations in a jurisdiction in which a blog is read, even if those actions are not violations in the jurisdiction in which it is written? And if a blogger is to be held responsible, who should hold him responsible – the country where the action is considered a violation or his own country – and where does a private party have a cause of action? According to Vijayashankar, blogger’s rights’ are always subordinated to the rights of expression guaranteed to the blogger in his country where he is a citizen.

Furthermore, the rights of a blogger have to be seen in the context of who has the "cause of action" against blog writing, i.e., which party involved has the right to complain. If an individual is a victim of a blog, and that individual is a citizen of another country and is guaranteed certain rights, the blogger's rights cannot override the rights of the victim in his own country. Hence, the victim has the right to invoke law enforcement in his country, and the law enforcement agencies do have a right to seek information from the blogger. If, however, a citizen brings a private civil action against a blogger, the discovery limitations are much more severe across boundaries, and the blogger’s national policy on responding to discovery from other countries will determine the extent to which information from the blogger will be made available. To the extent that the impact of a blogger’s expression reaches across boundaries, his actions should be considered similar to a situation where a citizen of one country does certain things which affect the rights enjoyed by a citizen of another country. It does not seem right that a blogger can say something offensive in one jurisdiction and be held liable, but a different blogger can say the same thing from another jurisdiction and be protected. On the one hand, since the Internet as a medium broadcasts across geographical boundaries, it is the responsibility of the individual countries to erect their "cyber boundaries" if they do not want the broadcast to reach their citizens. On the other, individuals should be able to invoke international laws to seek consistent application of standards about what is actionable and what information is discoverable in support of an action. This suggests that an international tribunal might be the best solution.

Other questions to think about when exploring the idea of a trusted third party holding online bloggers accountable include: who would form the third party, what legal authority/power would they have, would this group also be in charge of reviewing a country’s "cyber boundaries" in addition to holding online bloggers accountable? and how would it avoid being influenced by any one government or by other stakeholders?

Next I asked him for examples of common privacy violations that happen to online users. A few he said included identity theft in the form of phishing, which leads to financial frauds, and is one of the most dangerous consequences of privacy breach. Other examples included manipulation of online profiles in social networking sites to cause annoyance, defamation, and coercion; cyber squatting with content which can be misleading; posting of obscene pictures with or without morphing of victim’s photographs to other obscene photographs/pictures; and SPAM – particularly through mobile phones – are all serious forms of privacy violations.

My third question focused on privacy violations and bloggers. How could a blogger’s rights be compromised, especially with a focus on privacy? For bloggers, is privacy important simply to protect their identity and content, or are there other implications for privacy and bloggers? In our research we have looked into ways in which practices such as data retention by ISPs, government/law enforcements’ access to web content including private conversations, and poorly established user control over privacy settings on websites can violate online users’ privacy. According to Vijayashankar, a blogger is mainly concerned about privacy in the context of protecting his identity. It is important for bloggers to protect their identity because the content they create could be considered controversial or illegal in different regions. Thus, it is critical for bloggers to have the right to blog anonymously. An exception to this right is that if the blog is so offensive then the law enforcement agency can take action. In some countries individuals also can sue bloggers. To help protect bloggers from unreasonable and ungrounded searches, Vijayashankar suggested that a mechanism be created by which international and domestic law enforcement agencies can request 'sensitive' information. This mechanism would work to filter and evaluate requests for information without bias, and according to a country’s law own domestic law.

I then asked him what legal protections he felt bloggers needed. He said that he believes that it is important that bloggers and online users’ right to anonymity, protection of identity and freedom of expression (political and non-political) are protected from excessive regulations. An interesting point that he raised was about the protection of bloggers from international requests for information. According to –him — bloggers can be protected only to the extent to which their rights are protected in their own country. If a request for information comes to a law enforcement agency of a country of which the blogger is a citizen, information may need to be released unless an “asylum” has been granted.

An example of the situation Vijayashankar is referring to is that if a blogger in India writes content that is found to be controversial by the U.S Government; the U.S Government then has a right to request and access that information, unless the Indian Government provides protection over the citizen and the information and refuses to release it. Though right to information requests tend to be governmental, this rule changes if it is a citizen requesting information. Very rarely can a citizen of one country request information about a blogger from another country and gain access. The question of international discovery over Internet material is one that has many angles that need to be taken into consideration – a few being: what the content on the blog contained; was the content against an individual or a government; who is requesting the information — a citizen or the government, and whom are they requesting the information from? For example, in the US Supreme Court case, Calder vs. Jones 465 U.S. 783 (1984), information about a woman, Shirley Jones, was published in another state, but the court ruled that the wrongful action was directed to her where she was.

A large part of the debate over bloggers’ rights is centered on governments’ need to monitor online activity. Developments such as the new rules to the IT Act, the Indian Government’s request for blackberry’s encryption keys, and the news about the government wiretapping citizens’ phones show that the Government of India is demanding access to see and regulate content created by online users in India. When asked about bloggers’ rights and government access to content, Vijayashankar stressed that there has to be a mechanism to check the requests from government agencies, and any such mechanism should have popular representation. He went on to explain that presently an order for the blocking of a blog or for private information is made by a government agency or a court. Unfortunately, government agencies may be responsive to certain interests. Likewise, decisions of conventional courts can be inconsistent. Therefore, it is important that a mechanism that reflects the common person’s input is put in place. This could either be a stand-alone private body, such as Netizen Protection Agency, acting as one more layer of protection, or the government body itself could build in adequate public representation. Courts would need to recognize such bodies and seek their opinion as an input to any dispute. This is an innovative option, but one that is a radical departure from the view of a court as an impartial tribunal that is supposed to weigh every matter independently on its merits.

Lastly, I asked if a privacy legislation could address the issue at hand i.e., could a privacy legislation work to protect bloggers’ rights by providing them identity protection and protection of their content and in general what should be included in a comprehensive privacy legislation? Though India already addresses bloggers’ rights through the Information Technology Act, it could be possible that privacy legislation could establish a third party group to work to protect bloggers’ rights and hold both governments and bloggers’ accountable. When asked what should be included in a comprehensive privacy legislation, Vijayashankar suggested that it should recognize that privacy rights of individuals are part of the larger interests of the society, and a comprehensive legislation should work to take all the stakeholders into consideration.

For more details visit https://cis-india.org/internet-governance/blog/privacy/bloggers-rights-and-privacy