Centre for Internet and Society

Availability and Accessibility of Government Information in Public Domain

sunil — 2014-12-30T01:25:12Z

The information provided on most Government websites such as Acts, notifications, rules, orders, minutes of meetings and consultations, etc. is usually in the form of electronic documents. However, these lack authenticity and accessibility and cannot be (text) searched., This policy brief identifies the problem areas with the current work flow being used to publish documents and proposes suitable modifications to make them easy to locate, authentic and accessible.

Prepared by Sunil Abraham, Nirmita Narasimhan, Beliappa, and Anandhi Viswanathan and with inputs from Dipendra Manocha, Saksham, and Deepak Maheshwari, Symantec. Download the text as PDF here. (96 Kb)

Problem Statement: The information published on most government websites exist in the form of document files [including but not limited to the Acts, Rules and Regulations, Government Orders and Notifications, Consultation Papers, Reports etc.] which, even when published, more often than not lack authenticity and accessibility and cannot be (text) searched.

Analysis: The current workflow towards publishing documents on government websites is broadly as follows:

The document is born digital – that means it is created on a computer.
The document is printed.
The document is stamped with the official seal and signed in ink by the authorized person(s).
The paper document is scanned.
The scanned image is converted into a PDF file.
The document is uploaded on the website and thereby published in the public domain.

In fact, at times, even gazette notifications and other printed documents are also scanned as images.

This approach has numerous problems, including the following:

First and foremost, such a practice is against the letter and spirit of Section 4 (1) (a) of the Right to Information Act, 2005.[1] that inter alia, mandates every public authority to “maintain all its records duly catalogued and indexed in a manner and form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated”.
This does not realize the enabling provision of the Information Technology Act, 2000[2] which gives legal sanctity to digital signatures. The digital image of a physical signature is not a digital signature in the eye of the law, though at times it is mistakenly believed to be so.
This does not address the problem of repudiation. That means a government official can say “I didn't sign that document” and there is no way to tell whether what he or she is saying is true. One of the key features of digital signatures is non-repudiability.
Scanned images of printed text cannot be searched for specific text (character, word or phrase) even by people without disabilities but for people with disabilities, the documents become totally inaccessible since the accessibility software cannot parse such scanned images – against the underlying tenets and objectives of the National Universal Electronic Accessibility Policy 2013.[3]
As an extension, content of such documents cannot be indexed by search engines (such as Google, Bing and Raftaar, etc.) and hence, unlikely to be located even if technically the same are in the public domain.

Proposed Solution: The following work flow is proposed for publishing documents electronically on government websites:

The document is born digital by preparing it in or through a computer system. Documents in Indian languages should be produced using Unicode based fonts.
The government official authorized to sign the same, must sign it digitally.
The document is uploaded in an open standard based format such as EPUB using a content management system and made available on the website such that it is available, accessible, indexable and searchable.

This will ensure democratization of information in its truest sense – making available information to the public at large and ensuring that it can be easily located and remains accessible to one and all.

The process of formatting should be standardized in such a way that semantics (such as heading styles, lists and tables) can be added to the text of the document. The Web Style Guide provides information on good practices for creating well-structured documents:

Standardizing the formatting process by creating different templates for different types of documents will ensure uniform accessibility of the documents as well as provide a standard look and feel across government documents.

India became a global pioneer by making the legal provision for computerised, indexed and duly catalogued public records. It is high time that India takes the lead by living up to the legislative intent under the Right to Information Act, Information Technology Act and the National University of Educational Planning and Administration, and thereby establishes a global best practice.

Admittedly, legacy documents should also be converted electronically to accessible formats though before such a rendering, due editorial oversight may be necessary along with use of technologies such as Optical Character Recognition (OCR).

[1]. Government of India. The Right to Information Act, 2005. No. 22 of 2005. Retrieved on November 30, 2014 from http://rti.gov.in/webactrti.htm.

[2]. Government of India. The Information Technology Act, 2000. No. 21 of 2000. Retrieved on November 30, 2014 from http://deity.gov.in/sites/upload_files/dit/files/downloads/itact2000/itbill2000.pdf

[3]. Government of India. National Policy on Universal Electronic Accessibility. 2013. Retrieved on November 30, 2014 from http://deity.gov.in/sites/upload_files/dit/files/National Policy on Universal Electronics(1).pdf

For more details visit https://cis-india.org/accessibility/blog/availability-and-accessibility-of-government-information-in-public-domain

White Paper on RTI and Privacy V1.2

vipul — 2014-11-09T02:53:51Z

This white paper explores the relationship between privacy and transparency in the context of the right to information in India. Analysing pertinent case law and legislation - the paper highlights how the courts and the law in India address questions of transparency vs. privacy.

Introduction

Although the right to information is not specifically spelt out in the Constitution of India, 1950, it has been read into Articles 14 (right to equality), 19(1)(a) (freedom of speech and expression) and 21 (right to life) through cases such as Bennet Coleman v. Union of India,[1] Tata Press Ltd. v. Maharashtra Telephone Nigam Ltd.,[2] etc. The same Articles of the Constitution were also interpreted in Kharak Singh v.State of U.P.,[3] Govind v. State of M.P., [4] and a number of other cases, to include within their scope a right to privacy. At the very outset it appears that a right to receive information -though achieving greater transparency in public life - could impinge on the right to privacy of certain people. The presumed tension between the right to privacy and the right to information has been widely recognized and a framework towards balancing the two rights, has been widely discussed across jurisdictions. In India, nowhere is this conflict and the attempt to balance it more evident than under the Right to Information Act, 2005 (the "RTI Act").

Supporting the constitutional right to information enjoyed by the citizens, is the statutorily recognized right to information granted under the RTI Act. Any potential infringement of the right to privacy by the provisions of the RTI Act are sought to be balanced by section 8 which provides that no information should be disclosed if it creates an unwarranted invasion of the privacy of any individual. This exception states that there is no obligation to disclose information which relates to personal information, the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the larger public interest justifies the disclosure of such information. [5] The Act further goes on to say that where any information relating to or supplied by a third party and treated by that party as confidential, is to be disclosed, the Central Public Information Officer or State Public Information Officer has to give written notice to that party within five days of receiving such a request inviting such third party (within ten days) to make its case as to whether such information should or should not be disclosed.[6]

A plain reading of section 11 suggests that for the section to apply the following three conditions have to be satisfied, i.e. (i) if the PIO is considering disclosing the information (ii) the information relates to the third party or was given to a Public Authority by the third party in confidence; and (iii) the third party treated the information to be a confidential. It has been held that in order to satisfy the third part of the test stated above, the third party has to be consulted and therefore a notice has to be sent to the third party. Even if the third party claims confidentiality, the proviso to the section provides that the information cannot be withheld if the public interest in the disclosure outweighs the possible harm or injury that may be caused to the third party, except in cases of trade or commercial secrets.[7] The Courts have also held that section 11 should be read keeping in mind the exceptions contained in section 8 (discussed in detail later) and the exceptions contained therein. [8]

This principle of non disclosure of private information can be found across a number of common law jurisdictions. The United Kingdom's Freedom of Information Act, 2000 exempts the disclosure of information where it would violate the data protection principles contained in the Data Protection Act, 1998 or constitute an actionable breach of confidence.[9] The Australian Freedom of Information Act, 1982 categorizes documents involving unreasonable disclosure of personal information as conditionally exempt i.e. allows for their disclosure unless such disclosure would be contrary to public interest.[10] The Canadian Access to Information Act also has a provision which allows the authorities to refuse to disclose personal information except in accordance with the provisions of the Canadian Privacy Act. [11]

An overview of the RTI Act, especially sections 6 to 8 seems to give the impression that the legislature has tried to balance and harmonize conflicting public and private rights and interests by building sufficient safeguards and exceptions to the general principles of disclosure under the Act. [12] This is why it is generally suggested that section 8, when applied, should be given a strict interpretation as it is a fetter on not only a statutory right granted under the RTI Act but also a pre-existing constitutional right. [13] Logical as this argument may seem and appropriate in some circumstances, it does present a problem when dealing with the privacy exception contained in section 8(1)(j). That is because the right to privacy envisaged in this section is also a pre-existing constitutional right which has been traced to the same provisions of the Constitution from which the constitutional right of freedom of information emanates.[14] Therefore there is an ambiguity regarding the treatment and priority given to the privacy exception vs. the disclosure mandate in the RTI Act, as it requires the balancing of not only two competing statutory rights but also two constitutional rights.

The Privacy Exception

As discussed earlier, the purpose of the RTI Act is to increase transparency and ensure that people have access to as much public information as possible. Such a right is critical in a democratic country as it allows for accountability of the State and allows individuals to seek out information and make informed decisions. However, it seems from the language of the RTI Act that at the time of its drafting the legislature did realize that there would be a conflict between the endeavor to provide information and the right to privacy of individuals over the information kept with public authorities, which is why a privacy exception was carved into section 8(1)(j) of the Right to Information Act. The Act does not only protect the privacy of the third party who's information is at risk of being disclosed, but also the privacy of the applicant. In fact it has now been held that a private respondent need not give his/her ID or address as long as the information provided by him/her is sufficient to contact him/her.[15]

It is interesting to note that although the RTI Act gives every citizen a right to information, it does not limit this right with a stipulation as to how the information shall be used by the applicant or the reason for which the applicant wants such information. [16] This lack of a purpose limitation in the Act may have privacy implications as non sensitive personal information could be sought from different sources and processed by any person so as to convert such non-sensitive or anonymous information into identifiable information which could directly impact the privacy of individuals.

The exception in S. 8(1)(j) prohibits the disclosure of personal information for two reasons (i) its disclosure does not relate to any public activity or interest or (ii) it would be an unwarranted invasion into privacy. The above two conditions however get trumped if a larger public interest is satisfied by the disclosure of such information.

One interesting thing about the exception contained in section 8(1)(j) is that this exception itself has an exception to it in the form of a proviso. The proviso says that any information which cannot be denied to the central or state legislature shall not be denied to any person. Since the proviso has been placed at the end of sub-section 8(1) which is also the end of clause 8(1)(j), one might be tempted to ask whether this proviso applies only to the privacy exception i.e. clause 8(1)(j) or to the entire sub-section 8(1) (which includes other exceptions such as national interest, etc.). This issue was put to rest by the Bombay High Court when it held that since the proviso has been put only after clause 8(1)(j) and not before each and every clause, it would not apply to the entire sub-section 8(1) but only to clause 8(1)(j), thus ensuring that the exceptions to disclosure other than the right to privacy are not restricted by this proviso.[17]

Scope of Proviso to section 8(1)(j)
Though the courts have agreed that the proviso is applicable only to section 8(1)(j), the import of the proviso to section 8(1)(j) is a little more ambiguous and there are conflicting decisions by different High Courts on this point. Whereas the Bombay High Court has laid emphasis on the letter of the proviso and derived strength from the objects and overall scheme of the Act to water down the provisions of section 8(1)(j), [18] the Delhi High Court has disagreed with such an approach which gives "undue, even overwhelming deference" to Parliamentary privilege in seeking information. Such an approach would render the protection under section 8(1)j) meaningless, and the basic safeguard bereft of content.[19] In the words of the Delhi High Court:

" The proviso has to be only as confined to what it enacts, to the class of information that Parliament can ordinarily seek; if it were held that all information relating to all public servants, even private information, can be accessed by Parliament, Section 8(1)(j) would be devoid of any substance, because the provision makes no distinction between public and private information. Moreover there is no law which enables Parliament to demand all such information; it has to be necessarily in the context of some matter, or investigation. If the reasoning of the Bombay High Court were to be accepted, there would be nothing left of the right to privacy, elevated to the status of a fundamental right, by several judgments of the Supreme Court. "

The interpretation given by the Delhi High Court thus ensures that section 8(1)(j) still has some effect, as otherwise the privacy exception would have gotten steamrolled by parliamentary privilege and all sorts of information such as Income Tax Returns, etc. of both private and public individuals would have been liable to disclosure under the RTI Act.

Unfortunately, the RTI Act does not describe the terms "personal information" or "larger public interest" used in section 8(1)(j), which leaves some amount of ambiguity in interpreting the privacy exception to the RTI Act. Therefore the only option for anyone to understand these terms in greater depth is to discuss and analyse the case laws developed by the Hon'ble Supreme Court and the High Courts which have tried to throw some light on this issue.

We shall discuss some of these landmark judgments to understand the interpretations given to these terms and then move on to specific instances where (applying these principles) information has been disclosed or denied.

Personal Information
The RTI Act defines the term information but does not define the term "personal information". Therefore one has to rely on judicial pronouncements to understand the term a more clearly. Looking at the common understanding and dictionary meaning of "personal" as well as the definition of "information" contained in the RTI Act it could be said that personal information would be information, information that pertains to a person and as such it takes into its fold possibly every kind of information relating to the person. Now, such personal information of the person may, or may not, have relation to any public activity, or to public interest. At the same time, such personal information may, or may not, be private to the person. [20]

The Delhi High Court has tried to draw a distinction between the term "private information" which encompasses the personal intimacies of the home, the family, marriage, motherhood, procreation, child rearing and of the like nature and "personal information" which would be any information that pertains to an individual. This would logically imply that all private information would be part of personal information but not the other way round. [21] The term 'personal information' has in other cases, been variously described as "identity particulars of public servants, i.e. details such as their dates of birth, personal identification numbers",[22] and as including tax returns, medical records etc.[23] It is worth noting that just because the term used is "personal information" does not mean that the information always has to relate to an actual person, but may even be a juristic entity such as a trust or corporation, etc.[24]

Larger Public Interest
The term larger public interest has not been discussed or defined in the RTI Act, however the Courts have developed some tests to determine if in a given situation, personal information should be disclosed in the larger public interest.

Whenever a Public Information Officer is asked for personal information about any person, it has to balance the competing claims of the privacy of the third party on the one hand and claim of public interest on the other and determine whether the public interest in such a disclosure satisfies violating a person's privacy. The expression "public interest" is not capable of a precise definition and does not have a rigid meaning. It is therefore an elastic term and takes its colors from the statute in which it occurs, the concept varying with the time and the state of the society and its needs. This seems to be the reason why the legislature and even the Courts have shied away from a precise definition of "public interest". However, the term public interest does not mean something that is merely interesting or satisfies the curiosity or love of information or amusement; but something in which a class of the community have some interest by which their rights or liabilities are affected.[25]

There have been suggestions that the use of the word "larger" before the term "public interest" denotes that the public interest involved should serve a large section of the society and not just a small section of it, i.e. if the information has a bearing on the economy, the moral values in the society; the environment; national safety, or the like, the same would qualify as "larger public interest".[26] However this is not a very well supported theory and the usage of the term "larger public interest" cannot be given such a narrow meaning, for example what if the disclosure of the information could save the lives of only 10 people or even just 5 children? Would the information not be released just because it violates one person's right to privacy and there is not a significant number of lives at stake? This does not seem to be what all the cases on the right to privacy, right from Kharak Singh[27] all the way to Naz Foundation, [28] seem to suggest. Infact, in the very same judgment where the above interpretation has been suggested, the Court undermines this argument by giving the example of a person with a previous crime of sexual assault being employed in an orphanage and says that the interest of the small group of children in the orphanage would outweigh the privacy concerns of the individual thus requiring disclosure of all information regarding the employee's past.

In light of the above understanding of section 8(1)(j), there seem to be two different tests that have been proposed by the Courts, which seem to connote the same principle although in different words:

1. The test laid down by Union Public Service Commission v. R.K. Jain:

(i) The information sought must relate to „Personal information‟ as understood above of a third party. Therefore, if the information sought does not qualify as personal information, the exemption would not apply;

(ii) Such personal information should relate to a third person, i.e., a person other than the information seeker or the public authority; AND

(iii) (a) The information sought should not have a relation to any public activity qua such third person, or to public interest. If the information sought relates to public activity of the third party, i.e. to his activities falling within the public domain, the exemption would not apply. Similarly, if the disclosure of the personal information is found justified in public interest, the exemption would be lifted, otherwise not; OR (b) The disclosure of the information would cause unwarranted invasion of the privacy of the individual, and that there is no larger public interest involved in such disclosure. [29]

2. The other test was laid down in Vijay Prakash v. Union of India, but in the specific circumstances of disclosure of personal information relating to a public official:

(i) whether the information is deemed to comprise the individual's private details, unrelated to his position in the organization;

(ii) 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; and

(iii) whether the disclosure will furnish any information required to establish accountability or transparency in the use of public resources. [30]

Constitutional Restrictions
Since there is not extensive academic discussion on the meaning of the term "larger public interest" or "public interest" as provided in section 8(1)(j), one is forced to turn to other sources to get a better idea of these terms. One such source is constitutional law, since the right to privacy, as contained in section 8(1)(j) has its origins in Articles 14,[31] 19(1)(a) [32] and 21[33] of the Constitution of India. The constitutional right to privacy in India is also not an absolute right and various cases have carved out a number of exceptions to privacy, a perusal of which may give some indication as to what may be considered as 'larger public interest', these restrictions are:

a) Reasonable restrictions can be imposed on the right to privacy in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence; ^{^[34]}

b) Reasonable restrictions can be imposed upon the right to privacy either in the interests of the general public or for the protection of the interests of any Scheduled Tribe;^{^[35]}

c) The right to privacy can be restricted by procedure established by law which procedure would have to satisfy the test laid down in the Maneka Gandhi case.^{^[36]}

d) The right can be restricted if there is an important countervailing interest which is superior; ^{^[37]}

e) It can be restricted if there is a compelling state interest to be served by doing so; ^{^[38]}

f) It can be restricted in case there is a compelling public interest to be served by doing so; ^{^[39]}

g) The Rajagopal tests - This case lays down three exceptions to the rule that a person's private information cannot be published, viz. i) person voluntarily thrusts himself into controversy or voluntarily raises or invites a controversy, ii) if publication is based on public records other than for sexual assault, kidnap and abduction, iii) there is no right to privacy for public officials with respect to their acts and conduct relevant to the discharge of their official duties. It must be noted that although the Court talks about public records, it does not use the term 'public domain' and thus it is possible that even if a document has been leaked in the public domain and is freely available, if it is not a matter of public record, the right to privacy can still be claimed in regard to it.^{^[40]}

Section 8(1)(j) in Practice

The discussion in the previous chapter regarding the interpretation of section 8(1)(j), though (hopefully) helpful still seems a little abstract without specific instances and illustrations to drive home the point. In this chapter we shall endeavor to briefly discuss some specific cases regarding information disclosure where the issue of violation of privacy of a third party was raised.

Private Information of Public Officials
Some of the most common problems regarding section 8(1)(j) come up when discussing information (personal or otherwise) regarding public officers. The issue comes up because an argument can be made that certain information such as income tax details, financial details, medical records, etc. of public officials should be disclosed since it has a bearing on their public activities and disclosure of such information in case of crooked officers would serve the interests of transparency and cleaner government (hence serving a larger public interest). Although section 8(1)(j) does not make any distinction between a private person and a public servant, a distinction in the way their personal information is treated does appear in reality due to the inherent nature of a public servant. Infact it has sometimes been argued that public servants must waive the right to privacy in favour of transparency.[41] However this argument has been repeatedly rejected by the Courts, [42] just because a person assumes public office does not mean that he/she would automatically lose their right to privacy in favour of transparency.

If personal information regarding a public servant is asked for, then a distinction must be made between the information that is inherently personal to the person and that which has a connection with his/her public functions. The information exempted under section 8(1)(j) is personal information which is so intimately private in nature that the disclosure of the same would not benefit any other person, but would result in the invasion of the privacy of the third party.[43] In short, the Courts have concluded that there can be no blanket rule regarding what information can and cannot be disclosed when it comes to a public servant, and the disclosure (or lack of it) would depend upon the circumstances of each case.

Although the earlier thinking of the CIC as well as various High Courts of the country was that information regarding disciplinary proceedings and service records of public officials is to be treated as public information in order to boost transparency,[44] however this line of thinking took almost a U-turn in 2012 after the decision of the Supreme Court in Girish Ramchandra Deshpande v. Central Information Commissioner,[45] and now the prevailing principle is that such information is personal information and should not be disclosed unless a larger public interest is would be served by the disclosure.

It would also be helpful to look at a list of the type of information regarding public servants which has been disclosed in the past, gleaned from various cases, to get a better understanding of the prevailing trends in such cases:

(i) Details of postings of public servants at various points of time, since this was not considered as personal information; [46]

(ii) Copies of posting/ transfer orders of public servants, since it was not considered personal information; [47]

(iii) Information regarding transfers of colleagues cannot be exempted from disclosure, since disclosure would not cause any unwarranted invasion of privacy and non disclosure would defeat the object of the RTI Act;[48]

(iv) Information regarding the criteria adopted and the marks allotted to various academic qualifications, experience and interview in selection process for government posts by the state Public Service Commission;[49]

(v) Information regarding marks obtained in written test, interview, annual confidential reports of the applicant as well as the marks in the written test and interview of the last candidate selected, since this information was not considered as personal information; [50]

(vi) Information relating to the appointment and educational certificates of teachers in an educational institution (which satisfies the requirements of being a public authority) was disclosed since this was considered as relevant to them performing their functions. [51]

The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. To understand this better below is a brief list of the type of information that has been considered by the Courts as personal information which is liable to be exempt from disclosure under section 8(1)(j):

(i) (a) Salary details, (b) show cause notice, memo and censure, (c) return of assets and liabilities, (d) details of investment and other related details, (e) details of gifts accepted, (f) complete enquiry proceedings, (g) details of income tax returns;[52]

(ii) All memos issued, show cause notices and orders of censure/punishment etc. are personal information. Cannot be revealed unless a larger public interest justifies such disclosure;[53]

(iii) Disciplinary information of an employee is personal information and is exempt under section 8(1)(j); [54]

(iv) Medical records cannot be disclosed due to section 8(1)(j) as they come under "personal information", unless a larger public interest can be shown meriting such disclosure;[55]

(v) Copy of personnel records and service book (containing Annual Confidential Reports, etc.) of a public servant is personal information and cannot be disclosed due to section 8(1)(j);[56]

(vi) Information regarding sexual disorder, DNA test between an officer and his surrogate mother, name of his biological father and step father, name of his mother and surrogate step mother and such other aspects were denied by the Courts as such information was considered beyond the perception of decency and was an invasion into another man's privacy.[57]

It is not just the issue of disclosure of personal details of public officials that raises complicated questions regarding the right to information, but the opposite is equally true, i.e. what about seemingly "public" details of private individuals. A very complicated question arose with regard to information relating to the passport details of private individuals.

Passport Information of Private Individuals
The disclosure of passport details of private individuals is complicated because for a long time there was some confusion because of the treatment to be given to passport details, i.e. would its disclosure cause an invasion of privacy since it contains personally identifying information, specially because photocopies of the passport are regularly given for various purposes such as travelling, getting a new phone connection, etc. The Central Information Commission used a somewhat convoluted logic that since a person providing information relating to his residence and identity while applying for a passport was engaging in a public activity therefore such information relates to a public activity and should be disclosed. This view was rejected by the Delhi High Court in the case of Union of India v. Hardev Singh,[58] and the view taken inHardev Singh was later endorsed and relied upon in Union of India v. Rajesh Bhatia, [59] while hearing a number of petitions to decide what details of a third party's passport should be disclosed and what should be exempt from disclosure.

A list of the Courts conclusions is given below:

Information that can be revealed:

(i) Name of passport holder;

(ii) Whether a visa was issued to a third party or not;

(iii) Details of the passport including dates of first issue, subsequent renewals, dates of application for renewals, numbers of the new passports and date of expiry;

(iv) Nature of documents submitted as proof;

(v) Name of police station from where verification for passport was done;

(vi) Whether any report was called for from the jurisdictional police;

(vii) Whether passport was renewed through an agent or through a foreign embassy;

(viii) Whether it was renewed in India or any foreign country;

(ix) Whether tatkal facility was availed by the passport holder;

Information that cannot be revealed:

(i) Contents of the documents submitted with the passport application;

(ii) Marital status and name and address of husband;

(iii) Whether person's name figures as mother/guardian in the passport of any minor;

(iv) Copy of passport application form;

(v) Residential address of passport holder;

(vi) Details of cases filed/pending against passport holder;

(vii) Copy of old passport;

(viii) Report of the police and CID for issuing the passport;

(ix) Copy of the Verification Certificate, if any such Verification Certificate was relied upon for the issue of the passport.

Other Instances

Apart from the above two broad categories of information that has been the subject of intense judicial discussion, certain other situations have also arisen where the Courts have had to decide the issue of disclosure under section 8(1)(j), a brief summary of such situations is given below:

(i) names and details of people who received money as donations from the President out of public funds was considered as information which has a definite link to public activities and was therefore liable to be disclosed;[60]

(ii) information regarding the religion practiced by a person, who is alleged to be a public figure, collected by the Census authorities was not disclosed since it was held that the quest to obtain the information about the religion professed or not professed by a citizen cannot be in any event; [61]

(iii) information regarding all FIRs against a person was not protected under section 8(1)(j) since it was already a matter of public record and Court record and could not be said to be an invasion of the person's privacy;[62]

(iv) information regarding the income tax returns of a public charitable trust was held not to be exempt under section 8(1)(j), since the trust involved was a public charitable trust functioning under a Scheme formulated by the District Court and registered under the Bombay Public Trust Act as such due to its character and activities its tax returns would be in relation to public interest or activities.[63]

Conclusion

A discussion of the provisions of section 8 and 11 of the RTI Act as well as the case laws under it reveals that the legislature was aware of the dangers posed to the privacy of individuals from such a powerful transparency law. However, it did not want the exceptions carved out to protect the privacy of individuals to nullify the objects of the RTI Act and therefore drafted the legislation to incorporate the principle that although the RTI Act should not be used to violate the privacy of individuals, such an exception will not be applicable if a larger public interest is to be served by the disclosure. This principle is in line with other common law jurisdictions such as the U.K, Austalia, Canada, etc. which have similar exceptions based on privacy or confidentiality.

However it is disappointing to note that the legislature has only left the legislation at the stage of the principle which has left the language of the exception very wide and open to varied interpretations. It is understandable that the legislature would try to keep specifics out of the scope of the section to make it future proof. It is obvious that it would be impossible for the legislature or the courts to imagine every single circumstance that could arise where the right to information and the right to privacy would be at loggerheads. However, such wide and ambiguous drafting has led to cases where the Courts and the Central Information Commission have taken opposing views, with the views of the Court obviously prevailing in the end. This was illustrated by the issue of disclosure of passport details of private individuals with a large number of CIC cases taking different views till the High Court of Delhi gave categorical findings on the issue in the Hardev Singh and Rajesh Bhatia cases. Similar was the issue of service details of public officials since before the decision of the Supreme Court in the case of Girish Ramchandra Deshpande in 2012 the prevailing thinking of the CIC was that details of disciplinary proceedings against public officials are not covered by section 8(1)(j), however this thinking has now taken a U-turn as the Supreme Court's understanding of the right to privacy has taken stronger roots and such information is now outside the scope of the RTI Act, unless a larger public interest in the disclosure can be shown.

The ambiguity that arises in application when trying to balance the right to privacy against the right to information is a drawback in incorporating only a principle and leaving the language ambiguous in any legislation. This paper does not advocate that the legislature try to list out all the instances of this problem that are possibly imaginable, this would be too time consuming and may even be counterproductive. However, it is possible for the legislature to adopt an accepted practice of legislative drafting and list certain instances where there is an obvious balancing required between the two rights and put them as "Illustrations" to the section. This device has been utilised to great effect by some of the most fundamental legislations in India such as the Contract Act, 1872 and the Indian Penal Code, 1860. An alternative to this approach could be to utilize the approach taken in the Australian Freedom of Information Act, where the Act itself gives certain factors which should be considered to determine whether access to a particular document would be in the public interest or not.

List of References

Primary Sources

1. Australia Freedom of Information Act, 1982.

2. Bennet Coleman v. Union of India, AIR 1973 SC 106.

3. Bhagat Singh v. Chief Information Commissioner, 2008 (64) AIC 284 (Del).

4. Calcutta High Court, WP (W) No. 33290 of 2013, dated 20-11-2013.

5. Canadian Access to Information Act.

6. Canara Bank v. Chief Information Commissioner, 2007 (58) AIC Ker 667

7. Constitution of India, 1950.

8. Govind v. State of M.P., Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975.

9. Haryana Public Service Commission v. State Information Commission, AIR 2009 P & H 14.

10. Jamia Millia Islamia v. Sh. Ikramuddin, Delhi High Court, WP(C) 5677 of 2011 dated 22-11-2011.

11. Jitendra Singh v. State of U.P., 2008 (66) AIC 685 (All).

12. Kharak Singh v. State of U.P., AIR 1963 SC 129.

13. Maneka Gandhi v. Union of India, Supreme Court of India, WP No. 231 of 1977, dated 25-01-1978.

14. Naz Foundation Delhi High Court, WP(C) No.7455/2001 dated 02-07-2009.

15. P.C. Wadhwa v. Central Information Commission, Punjab and Haryana High Court, LPA No. 1252 of 2009 dated 29-11-2010.

16. Paardarshita Public Welfare Foundation v. Union of India and others, AIR 2011 Del 82.

17. President's Secretariat v. Nitish Kumar Tripathi, Delhi High Court, WP (C) 3382 of 2012, dated 14-06-2012.

18. Public Information Officer v. Andhra Pradesh Information Commission,2009 (76) AIC 854 (AP).

19. R. Rajagopal v. Union of India, Supreme Court of India, dated 7-10-1994.

20. Rajendra Vasantlal Shah v. Central Information Commissioner, New Delhi, AIR 2011 Guj 70.

21. Rajinder Jaina v. Central Information Commission, 2010 (86) AIC 510 (Del. H.C.).

22. Right to Information Act, 2005

23. Secretary General, Supreme Court of India v. Subhash Chandra, Delhi High Court - Full Bench, LPA No.501/2009, dated 12-01-2010.

24. Srikant Pandaya v. State of M.P., AIR 2011 MP 14.

25. Surendra Singh v. State of U.P, AIR 2009 Alld. 106.

26. Surup Singh Hyra Naik v. State of Maharashtra, 2007 (58) AIC 739 (Bom).

27. Tata Press Ltd. v. Maharashtra Telephone Nigam Ltd., (1995) 5 SCC 139.

28. U.K. Freedom of Information Act, 2000.

29. UCO Bank v. Central Information Commissioner and another, 2009 (79) AIC 545 (P&H).

30. Union Centre for Earth Science Studies v. Anson Sebastian, AIR 2010 Ker. 151

31. Union of India v. Hardev Singh WP(C) 3444 of 2012 dated 23-08-2013.

32. Union of India v. Rajesh Bhatia WP(C) 2232/2012 dated 17-09-2013.

33. Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

34. Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

Secondary Sources

1. "Country Report for U.K.", Privacy International, available at https://www.privacyinternational.org/reports/united-kingdom.

2. "Country Report for Australia", Privacy International, available at https://www.privacyinternational.org/reports/australia.

3. "Country Report for Canada", Privacy International, available at https://www.privacyinternational.org/reports/canada.

[1] AIR 1973 SC 106. This case held that the freedom of the press embodies in itself the right of the people to read.

[2] (1995) 5 SCC 139.

[3] AIR 1963 SC 129.

[4] Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975.

[5] Section 8(1) in its entirety states as follows:

(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;

(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;

(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

(f) information received in confidence from foreign Government;

(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

(h) information which would impede the process of investigation or apprehension or prosecution of offenders;

(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:

Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:

Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;

(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:

Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

[6] Section 11 of the RTI Act.

[7] The Registrar General v. A. Kanagaraj, (Madras High Court, 14 June 2013, available at http://www.indiankanoon.org/doc/36226888/.

[8] Arvind Kejriwal v. Central Public Information Officer, (Delhi High Court, 30 September 2011, available at http://www.indiankanoon.org/doc/1923225/.

[9] Sections 40 and 41 of the U.K. Freedom of Information Act, 2000.

[10] Section 11A read with section 47-F of the Australia Freedom of Information Act, 1982.

[11] Section 19 of the Canadian Access to Information Act.

[12] Public Information Officer v. Andhra Pradesh Information Commission,2009 (76) AIC 854 (AP).

[13] Bhagat Singh v. Chief Information Commissioner, 2008 (64) AIC 284 (Del).

[14] Articles 14, 19(1)(a) and 21 of the Constitution of India, 1950.

[15] Calcutta High Court, WP(W) No. 33290 of 2013, dated 20-11-2013.

[16] Jitendra Singh v. State of U.P., 2008 (66) AIC 685 (All).

[17] Surup Singh Hyra Naik v. State of Maharashtra, 2007 (58) AIC 739 (Bom).

[18] Surup Singh Hyra Naik v. State of Maharashtra, 2007 (58) AIC 739 (Bom), para 14. Where the Court held that since the medical records of a convict cannot be denied to Parliament or State legislature therefore they cannot be exempted from disclosure under the Act.

[19] Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[20] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

[21] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

[22] Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[23] Secretary General, Supreme Court of India v. Subhash Chandra, Delhi High Court - Full Bench, LPA No.501/2009, dated 12-01-2010.

[24] Jamia Millia Islamia v. Sh. Ikramuddin , Delhi High Court, WP(C) 5677 of 2011 dated 22-11-2011.

[25] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

[26] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 ( for stay), dated 13-07-2012.

[27] AIR 1963 SC 129.

[28] Delhi High Court, WP(C) No.7455/2001 dated 02-07-2009.

[29] Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 (for stay), dated 13-07-2012. This ruling was overturned by a Division Bench of the High Court relying upon a subsequent Supreme Court ruling, however, it could be argued that the Division Bench did not per se disagree with the discussion and the principles laid down in this case, but only the way they were applied.

[30] Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[31] Right to equality.

[32] Freedom of speech and expression.

[33] Right to life.

[34] Article 19(2) of the Constitution of India, 1950.

[35] Article 19(5) of the Constitution of India, 1950.

[36] Maneka Gandhi v. Union of India, Supreme Court of India, WP No. 231 of 1977, dated 25-01-1978. The test laid down in this case is universally considered to be that the procedure established by law which restricts the fundamental right should be just, fair and reasonable.

[37] Govind v. State of M.P., Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975.

[38] Govind v. State of M.P., Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975.

[39] Govind v. State of M.P., Supreme Court of India, WP No. 72 of 1970, dated 18-03-1975. However the Court later used phrases such as "reasonable restriction in public interest" and "reasonable restriction upon it for compelling interest of State" interchangeably which seems to suggest that the terms "compelling public interest" and "compelling state interest" used by the Court are being used synonymously and the Court does not draw any distinction between them. It is also important to note that the wider phrase "countervailing interest is shown to be superior" seems to suggest that it is possible, atleast in theory, to have other interests apart from public interest or state interest also which could trump the right to privacy.

[40] R. Rajagopal v. Union of India , Supreme Court of India, dated 7-10-1994. These tests have been listed as one group since they are all applicable in the specific context of publication of private information.

[41] Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[42] Secretary General, Supreme Court of India v. Subhash Chandra, Delhi High Court - Full Bench, LPA No.501/2009, dated 12-01-2010. Also see Vijay Prakash v. Union of India, 2009 (82) AIC 583 (Del).

[43] Canara Bank v. Chief Information Commissioner, 2007 (58) AIC Ker 667. This case also held that information cannot be denied on the ground that it would be too voluminous.

[44] Union Centre for Earth Science Studies v. Anson Sebastian, AIR 2010 Ker. 151; Union Public Service Commission v. R.K. Jain, Delhi High Court W.P.(C) 1243/2011 & C.M. No. 2618/2011 (for stay), dated 13-07-2012

[45] 2012 (119) AIC 105 (SC).

[46] Girish Ramchandra Deshpande v. Central Information Commissioner, 2012 (119) AIC 105 (SC).

[47] Girish Ramchandra Deshpande v. Central Information Commissioner, 2012 (119) AIC 105 (SC).

[48] Canara Bank v. Chief Information Commissioner, 2007 (58) AIC Ker 667.

[49] Haryana Public Service Commission v. State Information Commission, AIR 2009 P & H 14.

[50] UCO Bank v. Central Information Commissioner and another, 2009 (79) AIC 545 (P&H).

[51] Surendra Singh v. State of U.P, AIR 2009 Alld. 106.

[52] Girish Ramchandra Deshpande v. Central Information Commissioner, 2012 (119) AIC 105 (SC).

[53] Girish Ramchandra Deshpande v. Central Information Commissioner, 2012 (119) AIC 105 (SC).

[54] R.K. Jain v. Union Public Service Commission, Delhi High Court, LPA No. 618 of 2012, dated 12-11-2012.

[55] Secretary General, Supreme Court of India v. Subhash Chandra, Delhi High Court - Full Bench, LPA No.501/2009, dated 12-01-2010.

[56] Srikant Pandaya v. State of M.P., AIR 2011 MP 14.

[57] Paardarshita Public Welfare Foundation v. Union of India and others, AIR 2011 Del 82. It must be mentioned that this case was not exactly under the procedure prescribed under the RTI Act but was a public interest litigation although the courts relied upon the provisions of the RTI Act.

[58] WP(C) 3444 of 2012 dated 23-08-2013.

[59] WP(C) 2232/2012 dated 17-09-2013.

[60] President's Secretariat v. Nitish Kumar Tripathi, Delhi High Court, WP (C) 3382 of 2012, dated 14-06-2012.

[61] P.C. Wadhwa v. Central Information Commission, Punjab and Haryana High Court, LPA No. 1252 of 2009 dated 29-11-2010.

[62] Rajinder Jaina v. Central Information Commission, 2010 (86) AIC 510 (Del. H.C.).

[63] Rajendra Vasantlal Shah v. Central Information Commissioner, New Delhi, AIR 2011 Guj 70.

For more details visit https://cis-india.org/internet-governance/blog/white-paper-on-rti-and-privacy-v-1.2

Guidelines for Examination of Computer Related Inventions: Mapping the Stakeholders' Response

nehaa — 2015-01-05T17:01:50Z

The procedure and tests surrounding software patenting in India have remained ambiguous since the Parliament introduced the term “per se” through the Patent (Amendment) Act, 2002. In 2013, the Indian Patent Office released Draft Guidelines for the Examination of Computer Related Inventions, in an effort to clarify some of the ambiguity. Through this post, CIS intern, Shashank Singh, analyses the various responses by the stakeholders to these Guidelines and highlights the various issues put forth in the responses.

I. Introduction

In June, 2013 the Office of Controller General of Patents, Designs and Trademarks ('IPO'), released the Draft Guidelines for Examination of Computer Related Inventions ('Guidelines'). The aim of the Guidelines was to provide some much needed clarity around patentability of Computer Related Inventions ('CRI'). The Guidelines discuss the procedure to be adopted by the examiners while examining CRI patent applications. In response to the Guidelines, several stakeholders submitted their comments to either accept, reject or modify the interpretation provided by the IPO. Most of the comments circled around the phraseology of Section 3(k), Patents Act, 1970 ('Act'). In its current form, Section 3(k) reads as "a mathematical or business method or a computer programme per se or algorithms", and comes under Chapter III of the Act which lists inventions that are not patentable. Simply put, this means that software cannot be patented in India, unless it is embedded/combined in with some hardware. While this is the most widely accepted interpretation of this Section 3(k), there have been contradictory interpretations as well.

In this note, I shall look at the various ambiguities surrounding patent application for CRIs. The note has been divided into five parts. Part II briefly reiterates the legislative history behind Section 3(k) and CRI patenting. Part III would briefly summarize the various parts of the Guidelines where the IPO has given their interpretation and opinion on the various issues surrounding CRI patenting. Part IV would then map the position of the stakeholders on each ambiguous point. Lastly, Part V would give the conclusion.

II. Legislative History

Under the Patent Act, 1970, prior to the 2002 Amendment, there was no specific provision under which software could be patented. Nonetheless, there was no explicit embargo on software patenting either. For an invention to be patentable, under Section 2(1) (j) of the Act, which defines an invention, general criteria of novelty, non-obviousness and usefulness must be applied. Software is generally in the form of a mathematical formula or algorithm, both of which are not patentable under the Act as they do not produce anything tangible. However, if combined or embedded in a machine or a computer, the resultant product can be patented as it would pass the aforementioned criteria.

The Parliament, in 1999, sought to amend the Act to bring it in conformity with the changing technological landscape. Consequently, the Patent (Second Amendment) Bill, 1999 was introduced in the Parliament which was then referred to a Joint Parliamentary Committee ('JPC'). The ensuing Bill proposed Section 3(k) in its current phraseology. It reasoned that:

" In the new proposed clause (k) the words ''per se" have been inserted. This change has been proposed because sometimes the computer programme may include certain other things, ancillary thereto or developed thereon. The intention here is not to reject them for grant of patent if they are inventions. However, the computer programmes as such are not intended to be granted patent. This amendment has been proposed to clarify the purpose. "

The Bill was then enacted as the Patent (Amendment) Act, 2002 and reads in its current form as:

Section 3(k) - "a mathematical or business method or a computer programme per se or algorithm"

This created some ambiguity with respect to the interpretation of the term "per se". It was interpreted to mean that software cannot be patented unless it is combined with some hardware. This combination would then have to comply with all the tests of patentability under the Act.

In December, 2004 the Patent (Amendment) Ordinance, 2004 ('Ordinance') was enacted which amended Section 3(k) to divide it into two parts, namely Section 3(k) and Section 3(ka).

"(k) a computer programme per se other than its technical application to industry or a combination with hardware;

(ka) a mathematical method or a business method or algorithms; ".

In February, 2005 the Ordinance was introduced in the Parliament as the Patent (Amendment) Bill, 2005.This included the amendment to Section 3(k) as under the Ordinance. In the Objects and Reasons it clarified that the intention behind the amendment was to " modify and clarify the provisions relating to patenting of software related inventions when they have technical application to industry or in combination with hardware ". However, the final amending Act did not divide Section 3(k) as proposed by the Ordinance. In the press note, by the Ministry of Commerce and Industry it was noted that:

"It is proposed to omit the clarification relating to patenting of software related inventions introduced by the Ordinance as Section 3(k) and 3 (ka). The clarification was objected to on the ground that this may give rise to monopoly of multinationals."

Later, in the same year the IPO release a Manual of Patent Office Practice and Procedure, 2005. Here, it noted that "a computer readable storage medium having a program recorded thereon…irrespective of the medium of its storage are not patentable". This did nothing to clarify the ambiguity that existed.

Similarly, the Parliamentary Standing Committee on Commerce, 88^th Report on the Patent and Trademark System in India (2008) noted the uncertainty surrounding the term 'per se' and said that there was a need to clarify the same. It did not do anything in furtherance of pointing this out.

The 2011 Manual of Patent Office and Procedure, 2011 tried to elaborately deal with the ambiguity. Nonetheless, substantively it did not change the uncertainty. It stated that:

"If the claimed subject matter in a patent application is only a computer programme, it is considered as a computer programme per se and hence not patentable. Claims directed at computer programme products' are computer programmes per se stored in a computer readable medium and as such are not allowable. Even if the claims, inter alia, contain a subject matter which is not a computer programme, it is examined whether such subject matter is sufficiently disclosed in the specification and forms an essential part of the invention."

III. Draft Guidelines for Examination of Computer Related Inventions, 2013

The Draft Guidelines were released on June 28, 2013, following which stakeholders were invited to give comments.

Terms/ Definitions used while dealing with CRIs

At the outset, the IPO put a caveat to say that the Guidelines do not constitute 'rule making'. Consequently, in case of a conflict between the Guidelines and the Act, the Act shall prevail. After the Introduction and Background, in Part I and Part II respectively, the Guidelines looked at the various definitions/terms that correspond to CRI patent claims in Part III. In all, there were 21 such definitions/terms that were sought to be clarified. These definitions can be branched into three categories.

Category I- Where the definition/term was borrowed from some other Indian stature.
Category II- Where the definition/term was construed according to the plain dictionary meaning. Category III- Where the Guidelines tried to give their interpretation to the term/definition.

Under Category I, there were seven definitions whose meaning was derived from some other stature. The meaning of Computer Network, Computer System, Data, Information and Function were derived from Information Technology Act, 2000 ('IT Act'). The definition of Computer Programme was taken from Copyright Act, 1957. Lastly, the definition of Computer was taken from both Copyright Act and IT Act.

Under Category II, the Guidelines underscored five definitions whose meaning was to be borrowed from the Oxford Dictionary. These were algorithm, software, per se, firm ware and hardware. Importantly, it was noted that these definitions have not been defined anywhere in Indian legislations. Lastly, under Category III the Guidelines tried to interpret certain terms according to their understanding. These terms included, Embedded Systems, Technical Effects, Technical Advancement, Mathematical Methods, Business Methods etc.

Categorization of CRI claims

In Part IV, the Guidelines tried to broadly group the various CRI patent applications under four heads. These categorizations tried to give an insight into what the patent examiners look for while rejecting a patent application.

Method/process:

Without defining what a method or process would entail, the Guidelines stated that any claim carrying a preamble with "method/process for..." shall not be patentable. It clarified that claims relating to mathematical methods, business methods, computer programme per se, algorithm or mental act are cannot be patented as they are prime illustrations of claims under this category. Further, the Guidelines gave specific examples of each of the aforementioned claims.

Apparatus/system

The second category consisted of claims whose preamble stated that the patent application was for an "apparatus/system". Under this, the patent application must not only comply with the standard tests of patentability- novelty, inventive step and industrial applicability, but also define the inventive constructional or hardware feature of the CRI. However, in contradictory statements, the Guidelines try to narrow down the prerequisites for a claim under this category, only to state that such claims cannot be patented.

Computer readable medium

While stating this as a category, the Guidelines do not elaborate on what this exactly means and what types of claims would be rejected being under this category.

Computer program product

This category includes computer programs that are expressed on a computer readable medium (CD, DVD, Signal etc.). Further, infusing ambiguity to the debate, the Guidelines failed to differentiate between Computer Readable Medium and Computer Program Product.

Examination Procedure used by IPO

The examination procedure for CRI patent application in the Guidelines is similar to other patent applications which look at novelty, inventive step and industrial applicability. However, claims relating to determination of specific subject matter under the excluded categories (Method/Process, Computer Readable Medium, Apparatus/system, and Computer Program Product) require specific examination skills from the examiner.

Under the excluded category itself, Method/Process requires subjective judgement by the examiner as to whether such a claim qualifies to be classified under this category or not. For investigating the inventive step involved in the 'method/process', the technical advancement over existing knowledge in the technological field has to be analyzed. Any patent claim from a non-technological field shall not be considered.

The Guidelines then tried to clarify the controversial Section 3(k) which eliminates the patenting of computer programmes per se. While previously stating that the definition of the term 'per se' as borrowed from the Oxford dictionary meant 'by itself', the Guidelines stated that computer programme loaded on a general purpose computer or related device cannot be patented. Nonetheless, while filing patent application for a novel hardware, with a loaded computer programme, the likelihood patenting the combination cannot be ruled out. Further, the stated hardware must be something more than a general purpose machine. Essentially, a patent for a novel computer programme combined with a novel hardware, which must be more than a general purpose machine, may be considered for patenting. It then gave several examples which were followed by flowcharts to further clarify ambiguities surrounding CRI patentability. Interestingly, all these examples and flowcharts only listed the inventions that are not patentable.

IV. Response by Stakeholders

Many and various comments were received from 36 stakeholders that including lawyers, civil society members, law firms, students, global and national trade bodies and industry representatives.

Our compilation (and the first level of analysis) of the Stakeholders' Responses is available here.

While all the stakeholders' applauded the much needed transparency in the IPO, substantively they differed considerably on various issues and highlighted some inconsistencies. In this part, I shall map the responses of the various stakeholders'. While doing so, I shall also try and find specific patterns to the responses corresponding to the following segments:

1. Civil Society

2. Law Firm/Advocates ('law Firms')

3. Industry/ Industry Representatives/Global Trade Body (Industry)

4. Students

These segments have been created on the assumption that each of the aforementioned segment would lobby for similar kind of policy.

Interpretation of Section 3(k)

One of the major points of deviation between the stakeholders was regarding the interpretation of Section 3(k) which encapsulates the term "computer programme per se".

The industry responded by critiquing the current CRI patenting regime in India as being "restrictive" ( FICCI , NASSCOM, US India Business Council and Bosch ). While some industry representatives sought clarifications due to uncertain phraseology, there was no industry representative that favored restricted interpretation to exclude software patenting altogether. While opposing the Guidelines, they sought assistance from the legislative history behind introduction of Section 3(k). It was pointed out that the term 'per se' was included to raise the threshold of patentability to something higher than the previous patentability standard, but it did not explicitly exclude patent protection for software.

The general perception of the stakeholders, keeping in mind the current Guidelines, was that for patenting software it had to be combined with some hardware. This combination would then be scrutinized against the triple test of novelty, inventive step and industrial application.

While the Guidelines noted that the hardware involved must not be general purpose hardware and that the chances of software patentability would increase significantly if novelty resides in the hardware; however, most of the industry and global trade bodies disagreed with this interpretation. They argued that if software in combination of hardware technically advances the existing technology, then such an innovation must be patentable, despite being combined with a general purpose machine (Bosch). Another explanation supporting expanded interpretation was that much of the technological innovation is accomplished through software development as compared to hardware innovation and novel software can achieve technical effect without the hardware developments ( BSA- The Software Alliance ). Consequently, software development that allows a general purpose machine to perform tasks that were once performed by a special machine must be incentivized. Some stakeholders interpreted the Guidelines to reason that hardware must be completely disregarded while examining patentability of software (Majumdar & Co. ).

Most of the responses from the civil society argued for a restricted interpretation of Section 3(k) ( Centre for Internet & Society). They concurred with the interpretation provided by the IPO to exclude software patentability. Most of the stakeholders responded seeking further clarification on the subject (Software Freedom Law Centre , K&S Partners and Xellect IP Solutions).

However, within each segments itself there was difference of opinion on the interpretation of Section 3(k). For instance, out of the five civil society members, four wanted to restrictive interpretation while one of them favoured expansive interpretation to include software patenting. Similarly, 13 law firms sought further clarification on the subject matter, while seven argued for expansive interpretation and one of them argued for restricted interpretation. The most consistent response was from the industry that clearly favoured software patenting and called the Guidelines "restrictive". Seven out of the nine industry representatives supported expansive interpretation and the other two sought further clarifications on the subject.

Section 5.4.6- Hardware

The interpretation of Section 3(k) until the release of the Guidelines was that software in combination with some hardware could be considered for patenting. However, the Guidelines increased the threshold stating that this hardware must be "something more than a general purpose machine". A stakeholder pointed out that increasing this threshold would go against the legislative intent as the requirement of a novel hardware has not been mentioned anywhere in the Act ( Anand & Anand ).

The industry's perspective on this matter was largely uniform. They pointed out the large technological field that would be eliminated from the scope of patentability if the interpretation provided by the Guidelines is adopted ( Bosch). Also, the investigation of novelty in the hardware would disincentives inventors in the field of CRIs ( Kan & Krishme ). Most of the stakeholders, across segments, sought more clarification on the role of hardware under Section 3(k) (Majumdar & Co. Centre for Internet & Society).

Comparative Analysis

Much of the criticism surrounding CRI patenting policy in India is based on the comparative inconsistency with similar laws in other jurisdictions. Comparative analysis on the subject has only been provided by the stakeholders that support software patentability. They point out that most countries like US, UK, Japan and the European Patent Convention allow patenting of software, and India must also do the same in order to comply with its international obligations under the TRIPs Agreement. Paradoxically, stakeholders who supported the current practice chose not to comparatively analyze CRI policy of other jurisdictions. While most of the stakeholders simply jumped to analyze comparative jurisprudence on the subject, only one of them gave a reasonable explanation for such a comparison ( LKS). It was noted that the Supreme Court of India and the Intellectual Property Appellate Board regularly borrow from foreign decisions to either accept or deny patents. Therefore, while formulating any policy on the matter, the position in other jurisdictions must be considered.

It was reasoned that the term 'per se' used in the Act, is similar to the European Patent Convention and UK Patent Act, 1977 where the term 'as such' has been used. Therefore, while juxtaposing both the terms, the interpretation of 'per se' must be similar to 'as such'. Consequently, software patenting must be allowed subject to the tests evolved by the courts. Similarly, the term 'as such' has been used by several Asian countries including China, Taiwan, South Korea and Japan. In these countries, software in concert with a specific hardware that resolves a technical problem thereby achieving a technical result can be patented ( Krishna and Saurastri Associates ).

Likewise, while comparing the jurisprudence of US, the landmark case Diamond vs. Diehr, which marked the beginning of software patenting was cited ( Subhojeet Ghosh and US India Business Council ). Several others argued that India must align their laws with global standards ( Bosch, Phillips Intellectual Property and Standards , Sun Smart IP Services , United Overseas Patent Firm).

Business Method

The Guidelines tried to narrow down the definition of 'Business Method' to clarify that such claims cannot be patented. It was urged that the Guidelines reconsider such a blanket embargo ( Legasis Partners- Advocates and Solicitors, Anand & Anand ). While judging patentability, a patent must not be rejected simply because it mentions business method or business method related terminology. What must be examined is whether the inventive step resides in the technical or non-technical part of the claim ( Legasis Partners- Advocates and Solicitors). A distinction must be made differentiating as to what software implementing business method and a software relating to the technical aspect of the transaction ( Anand & Anand ). While the former can be rejected, the latter must be accepted subject to the triple test of patenting.

It was pointed out that reevaluating a business method claim apart from a method involving financial transaction; monopoly claim over trade and new business strategies; monopoly claim over new types of carrying out business and method of increasing revenue; must be rejected (Law Offices of Mohan Associates , Remfry and Sagar, FICCI ). The more overarching opinion of the stakeholders was there is no objection to the exclusion of business method patents, but what constitutes business methods need more clarity (D. Moses Jeyakaran, Law Firm of Naren Thappeta , Japan Intellectual Property Association ).

Critique of Examples and Flowcharts

The Guidelines provided for several examples and flowcharts to foster a better understanding of the subject matter. However, a notable feature of each of these was that they only gave examples of what claims would be rejected. This was sufficiently pointed out by most of the stakeholders who sought more positive examples (Bosch, BSA- The Software Alliance , K&S Partners , FICCI , Xellect IP Solutions, Japan Intellectual Property Association , In-House Intellectual Property Professional Forum, NASSCOM , Obhan & Associates , Remfry & Sagar, Tata Consultancy Services ). It was pointed out that the examples have not sufficiently elaborated on their relation with Section 3(k) ( FICCI ), and some of them are "weak, obscure and incorrect" ( Software Freedom Law Centre). These examples also fail to elaborate on the tests that have previously been applied by the Patent Office ( LKS). Overall, the general perception was that, the examples were confusing and greater clarity along with positive examples was needed ( LKS, Anand & Anand ).

Interestingly, out of the 25 stakeholders' who commented on the illustrations, 16 sought positive examples. Further, most of the positive examples were sought by industry representatives and law firms who supported software patenting.

V. Conclusion

It has been over a year since IPO released the CRI Guidelines. On release, it invited suggestions in order to revise the Guidelines, but the revised version has still not been released by the IPO. The Guidelines were authored from a patent examiner's perspective; however, while doing so it obscured the matter further. It was argued that in totality the application of the Guidelines would now make the patentability of software stricter. It was also pointed out that the Guidelines have not taken into account the legislative history and the specific rejection of the Ordinance in the 2005 Amendment.

The responses received by IPO gave conflicting opinion on the same issue. In general, it can be concluded that the industry and law firms were in favour of allowing software patenting. They sought removal of the hardware requirement for software patentability. Most of the stakeholder's who favoured software patenting also undertook a comparative study of jurisdictions like US, UK, EU and Japan to point out the difference in the software patenting policy. Further, they also wanted the Guidelines to give positive examples wherein CRIs patenting has previously been allowed.

Admittedly, the Guidelines have no legal standing and much like the Patent Manual, they serve merely to guide the patent applicants and provide transparency patent examination. Overall, the Guidelines failed to explain the previous inconsistencies surrounding the subject matter. In conclusion the Guidelines mention that it would periodically release and update the Guidelines incorporating the stakeholder's comments. Considering the diverse set of opinions received by the IPO, it now needs to be seen which suggestions are accepted until the next round of comments.

For more details visit https://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions

Big Data and Positive Social Change in the Developing World: A White Paper for Practitioners and Researchers

nishant — 2014-10-01T03:52:35Z

I was a part of a working group writing a white paper on big data and social change, over the last six months. This white paper was produced by a group of activists, researchers and data experts who met at the Rockefeller Foundation’s Bellagio Centre to discuss the question of whether, and how, big data is becoming a resource for positive social change in low- and middle-income countries (LMICs).

Bellagio Big Data Workshop Participants. (2014). “Big data and positive social change in the developing world: A white paper for practitioners and researchers.” Oxford: Oxford Internet Institute. Available online: http://ssrn.com/abstract=2491555.

Summary

Our working definition of big data includes, but is not limited to, sources such as social media, mobile phone use, digitally mediated transactions, the online news media, and administrative records. It can be categorised as data that is provided explicitly (e.g. social media feedback); data that is observed (e.g. mobile phone call records); and data that is inferred and derived by algorithms (for example social network structure or inflation rates). We defined four main areas where big data has potential for those interested in promoting positive social change: advocating and facilitating; describing and predicting; facilitating information exchange and promoting accountability and transparency.

In terms of advocating and facilitating, we discussed ways in which volunteered data may help organisations to open up new public spaces for discussion and awareness-building; how both aggregating data and working across different databases can be tools for building awareness, and howthe digital data commons can also configure new communities and actions (sometimes serendipitously) through data science and aggregation. Finally, we also looked at the problem of overexposure and howactivists and organisations can protect themselves and hide their digital footprints. The challenges we identified in this area were how to interpret data correctly when supplementary information may be lacking; organisational capacity constraints around processing and storing data, and issues around data dissemination, i.e. the possible negative consequences of inadvertently identifying groups or individuals.

Next, we looked at the way big data can help describe and predict, functions which are particularly important in the academic, development and humanitarian areas of work where researchers can combine data into new dynamic, high-resolution datasets to detect new correlations and surface new questions. With data such as mobile phone data and Twitter analytics, understanding the data’s comprehensiveness, meaning and bias are the main challenges, accompanied by the problem of developing new and more comprehensive ethical systems to protect data subjects where data is observed rather than volunteered.

The next group of activities discussed was facilitating information exchange. We looked at mobile-based information services, where it is possible for a platform created around a particular aim (e.g. agricultural knowledge-building) to incorporate multiple feedback loops which feed into both research and action. The pitfalls include the technical challenge of developing a platform which is lean yet multifaceted in terms of its uses, and particularly making it reliably available to low-income users. This kind of platform, addressed by big data analytics, also offers new insights through data discovery and allows the provider to steer service provision according to users’ revealed needs and priorities.

Our last category for big data use was accountability and transparency, where organisations are using crowdsourcing methods to aggregate and analyse information in real time to establish new spaces for critical discussion, awareness and action. Flows of digital information can be managed to prioritise participation and feedback, provide a safe space to engage with policy decisions and expose abuse. The main challenges are how to keep sensitive information (and informants) safe while also exposing data and making authorities accountable; how to make the work sustainable without selling data, and how to establish feedback loops so that users remain involved in the work beyond an initial posting. In the crowdsourcing context, new challenges are also arising in terms of how to verify and moderate real-time flows of information, and how to make this process itself transparent.

Finally, we also discussed the relationship between big and open data. Open data can be seen as a system of governance and a knowledge commons, whereas big data does not by its nature involve the idea of the commons, so we leaned toward the term ‘opening data’, i.e. processes which could apply to commercially generated as much as public-sector datasets. It is also important to understand where to prioritise opening, and where this may exclude people who are not using the ‘right’ technologies: for example, analogue methods (e.g. nailing a local authority budget to a town hall door every month) may be more open than ‘open’ digital data that’s available online.

Our discussion surfaced many questions to do with representation and meaning: must datasets be interpreted by people with local knowledge? For researchers to get access to data that is fully representative, do we need a data commons? How are data proprietors engaging with the power dynamics and inequalities in the research field, and how can civil society engage with the private sector on its own terms if data access is skewed towards elites? We also looked at issues of privacy and risk: do we need a contextual risk perspective rather than a single set of standards? What is the role of local knowledge in protecting data subjects, and what kinds of institutions and practices are necessary? We concluded that there is a case to be made for building a data commons for private/public data, and for setting up new and more appropriate ethical guidelines to deal with big data, since aggregating, linking and merging data present new kinds of privacy risk. In particular, organisations advocating for opening datasets must admit the limitations of anonymisation, which is currently being ascribed more power to protect data subjects than it merits in the era of big data.

Our analysis makes a strong case that it is time for civil society groups in particular to become part of the conversation about the power of data. These groups are the connectors between individuals and governments, corporations and governance institutions, and have the potential to promote big data analysis that is locally driven and rooted. Civil society groups are also crucially important but currently underrepresented in debates about privacy and the rights of technology users, and civil society as a whole has a responsibility for building critical awareness of the ways big data is being used to sort, categorise and intervene in LMICs by corporations, governments and other actors. Big data is shaping up to be one of the key battlefields of our era, incorporating many of the issues civil society activists worldwide have been working on for decades. We hope that this paper can inform organisations and
individuals as to where their particular interests may gain traction in the debate, and what their contribution may look like.

Click to download the full white paper here. (PDF, 1.95 Mb)

For more details visit https://cis-india.org/internet-governance/blog/big-data-and-positive-social-change-in-developing-world

Expanding the World of Telugu Wikipedia – CIS-A2K and ALC join hands

T Vishnu Vardhan and Rahmanuddin Shaik — 2014-09-30T05:11:29Z

Students and faculty of Andhra Loyola College in Vijayawada aim to enhance Telugu Wikipedia through increased contributions to Wikipedia and make it available under free license.

The Access to Knowledge (A2K) programme of the Centre for Internet and Society (CIS) in its quest to catalyze the growth of open knowledge movement in Indic languages recently added another feather to its cap by signing a memorandum of understanding (MoU) with Andhra Loyola College (ALC) in Vijayawada on August 14, 2014 to work collaboratively to improve Telugu Wikipedia and Telugu Wikisource. College Principal Fr. G.A.P. Kishore, Vice-Principals Fr. P. Anil Kumar and Fr. Rex Angelo, correspondent Fr. Raju signed the agreement with CIS-A2K programme director T. Vishnu Vardhan.

The MoU signed with ALC is for a period of five years and encompasses four activities: Open knowledge creation in Telugu across various disciplines on Telugu Wikipedia: ALC faculty and students will be trained by CIS-A2K staff and interested Telugu Wikimedians to understand the principles that govern Wikipedia in order to generate quality entries. Faculty from Botany, Physics, Statistics, Ethics, Religion, Telugu Literature, and Music will work with CIS-A2K. Each of the faculty in the coming months will come up with a plan to generate open knowledge in Telugu in their respective disciplines. Content donation and digitization on Telugu Wikisource: ALC through its networks will help CIS-A2K to bring Telugu content under CC-BY-SA 4.0 license. The Telugu department of the college expressed keen interest to work with CIS-A2K in digitizing historical Telugu content and to make it available on Telugu Wikisource. Various competitions will be planned in the future. Creating a free software environment at Andhra Loyola College: 400 machines within various labs on the campus will be converted into FOSS systems with free and open source software including support for Telugu and other Indic languages. It should be noted that all the existing computers of ALC are run on proprietary software. As a pilot initiative CIS-A2K has already converted 30 systems in a lab and named it as Loyola FOSS Lab. CIS-A2K to revise the FIT (Fundamentals in Information Technology): A mandatory course for all undergraduate students which will introduce students to FOSS, Openness and Wikipedia. This is an outcome of the FOSS orientation done by T. Vishnu Vardhan and Rahimanuddin Shaik during the two workshops that were held at ALC.

CIS-A2K will put every effort to involve Telugu Wikimedians and FOSS community in taking this collaboration with ALC forward. CIS-A2K will also create a project page on Telugu Wikipedia to actively document and publicly share the detailed plans and progress. More updates will also be shared on this website.


Above: Representatives from ALC and CIS-A2K seen during the signing ceremony.

The signing of the MoU was done at a public event in the presence of students, faculty and management of ALC and various representatives from media. The media covered this event enthusiastically. The Hindu coverage can be found here and Eenadu article coverage is here.

For more details visit https://cis-india.org/openness/blog-old/expanding-the-world-of-telugu-wikipedia-cis-and-alc-join-hands

NIE Steps in to Grow Konkani Wikipedia

vishnu — 2014-10-10T11:26:26Z

The Centre for Internet & Society's Access to Knowledge team (CIS-A2K) signed a memorandum of agreement (MoU) with Nirmala Institute of Education, Goa to enhance digital literacy in Konkani in the education sector across Goa.

The Access to Knowledge (A2K) programme of CIS, in its sustained efforts to enhance the content and reach of Kokani Wikepedia (which is in incubation), has signed an MoU for a period of five years with Nirmala Insitute of Education (NIE), a Secondary Teacher Education College established in 1963 by the Society of the Daughters of the Heart of Mary in response to the then urgent need for trained teachers in post liberation Goa. The key objectives of this partnership are: a) to design, develop and execute a certificate course titled "Teaching in the Age of Wikipedia", which is aimed at middle and high school teacher-trainees and teachers; and b) to introduce Wikimedia projects into the pedagogic curriculum of NIE.

Both CIS and NIE share a mutual interest in conserving, developing and disseminating knowledge free of cost in Konkani, which incidentally is Goa’s official language. Konkani as a language faces several challenges — it has no official script. The population who speak it are dispersed across the world and have little motivation to further the cause of Konkani, and there are few educational venues that offer a formal course to study Konkani or offer Konkani based curriculum. NIE Principal Dr. Denzil Martins welcomed this MoU and said that "it will guide our teacher-trainees to upload relevant information in Konkani that can be freely accessed by the local population" and "provide the volunteer-trainees with skills that they will be able to use to contribute and enhance the free knowledge in Konkani". The MoU was signed by Dr. Denzil Martins from NIE and T. Vishnu Vardhan (Programme Director, Access to Knowledge, CIS) in the presence of staff and students of NIE and volunteers Harriet Vidyasagar and Gayathri Rao Konkar. Dr. Rita Paes, ex-Principal of NIE who worked to forge this MoU sent her best wishes.

CIS-A2K since 2013, has worked to develop partnerships with key educational institutions to promote and grow Konkani Wikipedia. It has previously worked with NIE to design and implement a program to enroll 100 B.Ed. students to increase the amount of information available in Goan villages and towns on Konkani Wikipedia. A2K has also been instrumental in convincing Goa University to re-release Konkani Vishwakosh (encyclopedia) under CC-BY-SA 3.0 , making it freely available to public, giving them the right to share, use and even build upon the work that has already been done.

The course ‘Teaching in the Age of Wikipedia’ will enable the teacher participant to have a) a comprehensive understanding of changes due to digital technology to the knowledge domain; b) an introduction to various openness movements that inform the discourse on Open Educational Resources; c) exposure and training to participate on open knowledge platforms like Wikipedia; and d) practical examples and best practices of using Wikipedia and sister projects within the classroom context. The parties will also co-design and jointly implement programmes to introduce Wikipedia in the NIE curriculum. The curriculum for this workshop is positioned within the context of indian languages (particularly Konkani) and school education to ensure that any learning is practical and can be applied within the teachers immediate pedagogic environment. Speaking about the relevance of this course Gayathri and Harriet (who have been associated with NIE as volunteers) mentioned that "the Goa government has handed out tablets to all school going children in Goa. In order to use them effectively in the classroom will require teachers to rethink their role and teaching methodologies and this course is an important step towards that". Agreeing with this Denzil Martins feels that this course "will provide the teacher-trainees with ideas and inputs for using Wikipedia in creative ways in the classroom".

This partnership could bring huge momentum and scale for the growth of Konkani as participants who graduate from this course will as teachers act as anchors and mentors to teach and assign Wikipedia editing assignments in their respective schools and classrooms.

As Gayathri feels "such courses once fine tuned should be made available to teachers from all over the country and should be part of the package for introducing the digital technology in the school system. Today it ends with setting up computer labls in schools or distribution of hardware to students - they may have a 'computer teacher' but the class and subject teachers never become part of these new initiatives. Only when this happens can we move away from 'teaching computers' to using computers as tools to learn and teach, which is the primary objective of digital technology in schools".

CIS will develop this open course and welcomes anyone to partner in this effort, which will be made available for anyone to use it within their context. The efforts to build free and open knowledge platforms like Konkani Wikipedia will continue and partnerships like NIE will play a crucial role in building a robust knowledge society in India.

For more details visit https://cis-india.org/openness/blog-old/nie-steps-in-to-grow-konkani-wikipedia

Privacy in Healthcare: Policy Guide

tanvi — 2014-08-31T15:18:12Z

The Health Policy Guide seeks to understand what are the legal regulations governing data flow in the health sector — particularly hospitals, and how are these regulations implemented. Towards this objective, the research reviews data practices in a variety of public and private hospitals and diagnostics labs. The research is based on legislation, case law, publicly available documents, and anonymous interviews.

Click to download the PDF (320 Kb)

Introduction

To this date, there exists no universally acceptable definition of the right to privacy. It is a continuously evolving concept whose nature and extent is largely context driven. There are numerous aspects to the right to privacy, each different from the other in terms of the circumstance in which it is invoked. Bodily privacy however, is to date, the most guarded facet of this vastly expansive right. The privacy over one’s own body including the organs, genetic material and biological functions that make up one’s health is an inherent right that does not; as in the case of other forms of privacy such as communication or transactional privacy, emanate from the State. It is a right that has its foundations in the Natural Law conceptions of The Right to Life, which although regulated by the State can at no point be taken away by it except under extreme circumstances of a superseding Right to Life of a larger number of people.

The deliberation leading to the construction of a universally applicable Right to Privacy has up until now however only been in terms of its interpretation as an extension of the Fundamental Right to Life and Liberty as guaranteed under Article 21 as well as the freedom of expression and movement under Articles 19(1)(a) and (b) of the Constitution of India. While this may be a valid interpretation, it narrows the ambit of the right as one that can only be exercised against the State. The Right to privacy however has much larger implications in spheres that are often removed from the State. There is thus an impending need to create an efficient and durable structure of Law and policy that regulates the protection of privacy in Institutions that may not always be agents of the State.

It is in this regard that the following analysis studies the existing conceptions of privacy in the Healthcare sector. It aims to study the existing mechanisms of privacy protection and their pragmatic application in everyday practices. Further, it determines definitive policy gaps in the existing framework and endeavors to provide effective recommendations to not only redress these shortcomings but also create a system that is efficient in its fulfillment of the larger objective of the actualization of the Right to Privacy at an individual, state and institutional level.

Purpose

The purpose of this research study is to formulate a comprehensive guide that maps the synthesis, structure and implementation of privacy regulations within the healthcare sector in India. It traces the domestic legislation pertaining to various aspects of the healthcare sector and the specific provisions of the law that facilitate the protection of the privacy of individuals who furnish their personal information as well as genetic material to institutions of healthcare, either for the purpose of seeking treatment or to contribute to research studies. It is however imperative that the nature and extent of the information collected be restricted through the establishment of requisite safeguards at an institutional level that percolate down to everyday practices of data collection, handling and storage within healthcare institutions. The study thus aims to collate the existing systems of privacy protection in the form of laws, regulations and guidelines and compare these with actual practices in government and private hospitals and diagnostic laboratories to determine whether these laws are in fact effective in meeting the required standards of privacy protection. Further, the study also broadly looks at International practices of privacy protection and offers recommendations to better the existing mechanisms of delimiting unnecessary intrusions on the privacy of patients.

Importance

The Indian Healthcare sector although at par with international standards in its methods of diagnosis, treatment and the use of contemporary technology, is still nascent in the nature and extent of its interaction with the Law. There are a number of aspects of healthcare that lie on the somewhat blurred line between the interest of the public and the sole right of the individual seeking treatment. One such aspect is the slowly evolving right to privacy. The numerous facets of this right have come to the fore largely through unique case laws that are reflective of a dynamic social structure, one that seeks to reconcile the socio economic rights that once governed society with individual interests that it has slowly come to realize. The right of an individual to disclose the nature of his disease, the liberty of a woman not to be compelled to undergo a blood test, the bodily autonomy to decide to bear children or not, the decisional privacy with regards to the termination of a pregnancy and the custodial rights of two individuals to their child are certain contentious aspects of healthcare that have constructed the porous interface between the right to privacy and the need for medical treatment. It is in this context that this study aims to delve into the existing basic structure of domestic legislation, case laws and regulations and their subsequent application in order to determine important gaps in the formulation of Law and Policy. The study thus aims to draw relevant conclusions to fill these gaps through recommendations sourced from international best practice in order to construct a broad framework upon which one can base future policy considerations and amendments to the existing law.

Methodology

This research study was undertaken in two major parts. The first part assesses domestic legislation and its efficacy in the current context. This is done through the determination of relevant provisions within the Act that are in consonance with the broader privacy principles as highlighted in the A.P Shah Committee report on Privacy Protection[1]. This part of the research paper is based on secondary sources, both in terms of books as well as online resources. The second part of the paper analyses the actual practices with regard to the assimilation, organization, use and storage of personal data as practiced in Government and Private hospitals and Diagnostic laboratories. Three Private hospitals, a prominent Government hospital and a Diagnostic laboratory were taken into consideration for this study. The information was provided by the concerned personnel at the medical records department of these institutions of healthcare through a survey conducted on the condition of anonymity. The information provided was analyzed and collated in accordance with the compliance of the practices of these institutions with the Principles of privacy envisioned in the Report of the Group of Experts on Privacy.

The Embodiment of Privacy Regulation within Domestic Legislation

This section of the study analyses the viability of an approach that takes into account the efficacy of domestic legislation in regulating practices pertaining to the privacy of individuals in the healthcare sector. This approach perceives the letter and spirit of the law as the foundational structure upon which internal practices, self regulation and the effective implementation of policy considerations that aim to create an atmosphere of effective privacy regulation take shape, within institutions that offer healthcare services. To this effect, domestic legislationthat provides for the protection of a patient’s privacy has been examined. The law has been further studied with respect to its tendency to percolate into the everyday practices, regulations and guidelines that private and government hospitals adhere to. The extent of its permeation into actual practice; in light of its efficacy in fulfilling the perambulatory objectives of ensuring safe and unobtrusive practices,within the construct of which a patient is allowed to recover and seek treatment, has also been examined.

The term ‘Privacy’ is used in a multitude of domestic legislations primarily in the context of the foundation of the fiduciary relationship between a doctor and a patient.This fiduciary relationship emanates from a reasonable expectation of mutual trust between the doctor and his patients and is established through the Indian Medical Council Act of 1952, specifically section 20(A) of the Act which lays down the code of ethics which a doctor must adhere to at all times. Privacy within the healthcare sector includes a number of aspects including but not limited to informational privacy (e.g., confidentiality, anonymity, secrecy and data security); physical privacy (e.g., modesty and bodily integrity); associational privacy (e.g. intimate sharing of death, illness and recovery); proprietary privacy (e.g., self-ownership and control over personal identifiers, genetic data, and body tissues); and decisional privacy (e.g., autonomy and choice in medical decision-making).

Privacy Violations stem from policy and information gaps: Violations in the healthcare sector that stem from policy formulation as well and implementation gaps[2] include the disclosure of personal health information to third parties without consent, inadequate notification to a patient of a data breach, unlimited or unnecessary collection of personal health data, collection of personal health data that is not accurate or relevant, the purpose of collecting data is not specified, refusal to provide medical records upon request by client, provision of personal health data to public health, research, and commercial uses without de-identification of data and improper security standards, storage and disposal. The disclosure of personal health information has the potential to be embarrassing, stigmatizing or discriminatory.[3] Furthermore, various goods such as employment, life, and medical insurance, could be placed at risk [4]if the flow of medical information were not restricted. ^{^[5]}

Disclosure of personal health information is permitted and does not amount to a violation of privacy in the following situations: 1) during referral, 2) when demanded by the court or by the police on a written requisition, 3) when demanded by insurance companies as provided by the Insurance Act when the patient has relinquished his rights on taking the insurance, and 4) when required for specific provisions of workmen's compensation cases, consumer protection cases, or for income tax authorities,^{^[6]} 5) disease registration, 6) communicable disease investigations, 7) vaccination studies, or 8) drug adverse event reporting. ^{^[7]}

The following domestic legislations have been studied and relevant provisions of the Act have been accentuated in order to analyse their compliance with the basic principles of privacy as laid out in the A.P Shah Committee report on Privacy.

Mental Health Act, 1987[8]
The Provisions under the Act pertaining to the protection of privacy of the patient have been examined. The principles embodied within the Act include aspects of the Law that determine the nature and extent of oversight exercised by the relevant authorities over the collection of information, the limitation on the collection of data and the restrictions on the disclosure of the data collected. The principle of oversight is embodied under the legislation within the provisions that allow for the inspection of records in psychiatric hospitals and nursing homes only by officers authorized by the State Government.^{^[9]} The limitation on the Collection of information is imposed by the Inspection of living conditionsby a psychiatrist and two social workers are on a monthly basis. This would include analyzing the living condition of every patient and the administrative processes of the psychiatric hospital and/or psychiatric nursing home. ^{^[10]}Additionally, Visitors must maintain a book regarding their observations and remarks.^{^[11]} Medical certificates may be issued by a doctor, containing information regarding the nature and degree of the mental disorder as reasons for the detention of a person in a psychiatric hospital or psychiatric nursing home. ^{^[12]}Lastly, the disclosure of personal records of any facility under this Act by inspecting officers is prohibited^{^[13]}

Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 ^{^[14]}
The Act was instituted in light of a prevalent public interest consideration of preventing female foeticide. However, it is imperative that the provision of the Act remain just shy of unnecessarily intrusive techniques and do not violate the basic human requirement of privacy in an inherently personal sphere. The procedure that a mother has to follow in order to avail of pre-natal diagnostic testing is mandatory consent of age, abortion history and family history. These conditions require a woman to reveal sensitive information concerning family history of mental retardation or physical deformities.[15] Aspecial concern for privacy and confidentiality should be exercised with regards to disclosure of genetic information. [16]

Medical Termination of Pregnancy Act, 1971 ^{^[17]}
Although, the right to an abortion is afforded to a woman within the construct of her inherent right to bodily privacy, decisional privacy (for e.g., autonomy and choice in medical decision-making) is not afforded to patients and their families with regards to determining the sex of the baby. The sections of the Act that have been examined lay down the provisions available within the Act to facilitate the protection of a woman’s right to privacy during the possible termination of a pregnancy. These include the principles pertaining to the choice and consent of the patient to undergo the procedure, a limit on the amount of information that can be collected from the patient, the prevention of disclosure of sensitive information and the security measures in place to prevent the unauthorized access to this information. The Medical Termination of Pregnancy Regulations, 2003 supplement the Act and provide relevant restrictions within every day practices of data collection use and storage in order to protect the privacy of patients. The Act mandates Written Consent of the patient in order to facilitate an abortion .Consent implies that the patient is aware of all her options, has been counselled about the procedure, the risks and post-abortion care.[18]. The Act prohibits the disclosure of matters relating to treatment for termination of pregnancy to anyone other than the Chief Medical Officer of the State. [19]The Register of women who have terminated their pregnancy, as maintained by the hospital, must be destroyed on the expiry of a period of five years from the date of the last entry.[20] The Act also emphasizes upon the security of information collected. The medical practitioner assigns a serial number for the woman terminating her pregnancy.[21]Additionally, the admission register is stored in safe custody of the head of the hospital. [22]

Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 (Code of Ethics Regulations, 2002)
The Medical Council of India (MCI) Code of Ethics Regulations^{^[23]} sets the professional standards for medical practice. These provisions regulate the nature and extent of doctor patient confidentiality. It also establishes universally recognized norms pertaining to consent to a particular medical procedure and sets the institutionally acceptable limit for intrusive procedure or gathering excessively personal information when it is not mandatorily required for the said procedure. The provisions addressed under these regulations pertain to the Security of the information collected by medical practitioners and the nature of doctor patient confidentiality.

Physicians are obliged to protect the confidentiality of patients⁵during all stages of the procedure and with regard to all aspects of the information provided by the patient to the doctor, includinginformation relating to their personal and domestic lives. ^{^[24]}The only exception to this mandate of confidentiality is if the law requires the revelation of certain information, or if there is a serious and identifiable risk to a specific person and / or community ofa notifiable disease.

Ethical Guidelines for Biomedical Research on Human Subjects [25]
The provisions for the regulation of privacy pertaining to biomedical research include aspects of consent as well as a limitation on the information that may be collected and its subsequent use. The provisions of this act aim to regulate the protection of privacy during clinical trials and during other methods of research. The principal of informed consent is an integral part of this set of guidelines. ThePrivacy related information included in the participant/ patient information sheet includes: the choice to prevent the use of their biological sample, the extent to which confidentiality of records could be maintained and the consequences of breach of confidentiality, possible current and future uses of the biological material and of the data to be generated from the research and if the material is likely to be used for secondary purposes or would be shared with others, the risk of discovery of biologically sensitive information and publications, including photographs and pedigree charts.[26] The Guidelines require special concern for privacy and confidentiality when conducting genetic family studies. [27]The protection of privacy and maintenance of confidentiality, specifically surrounding the identity and records, is maintained whenusing the information or genetic material provided by participants for research purposes. ^{^[28]}The Guidelines require investigators to maintain confidentiality of epidemiological data due to the particular concern that some population based data may also have implications on issues like national security or public safety.[29]All documentation and communication of the Institutional Ethics Committee (IEC) must be dated, filed and preserved according to the written procedures.Data of individual participants can be disclosed in a court of law under the orders of the presiding judge, if there is a threat to a person’s life, communication to the drug registration authority regarding cases of severe adverse reaction and communication to the health authority if there is risk to public health.[30]

Insurance Regulatory and Development Authority (Third Party Administrators) Health Services Regulations, 2001
The provisions of the Act that have been addressed within the scope of the study regulate the practices of third party administrators within the healthcare sector so as to ensure their compliance with the basic principles of privacy.An exception to the maintenance and confidentiality of information confidentiality clause in the code of conduct, requires TPAs to provide relevant information to any Court of Law/Tribunal, the Government, or the Authority in the case of any investigation carried out or proposed to be carried out by the Authority against the insurance company, TPA or any other person or for any other reason.[31]In July 2010, the IRDA notified theInsurance Regulatory and Development Authority (Sharing of Database for Distribution of Insurance Products) Regulations [32]. These regulations restrict referral companies from providing details of their customers without their prior consent.[33]TPAs must maintain the confidentiality of the data collected by it in the course of its agreement and maintain proper records of all transactions carried out by it on behalf of an insurance company and are also required to refrain from trading information and the records of its business[34].TPA’s must keep records for a period of not less than three years.[35]

IDRA Guidelines on Outsourcing of Activities by Insurance Companies [36]
These guidelines require the insurer to take appropriate steps that require third party service providers protect confidential information of both the Insurer and its clients from intentional or inadvertent disclosure to unauthorized persons.[37]

Exceptions to the Protection of Privacy
The legal provisions with regard to privacy, confidentiality and secrecy are often superseded by Public Interest Considerations. The right to privacy, although recognized in the course of Indian jurisprudence and embodied within domestic legislation is often overruled prima facie when faced with situations or instances that involve a larger interest of a greater number of people. This policy is in keeping with India’s policy goals as a social welfare state to aid in the effectuation of its utilitarian ideals. This does not allow individual interest to at any point surpass the interest of the masses.

Epidemic Diseases Act, 1897 [38]
Implicit within this formulation of this Act is the assumption that in the case of infectious diseases, the right to privacy, of infected individuals must give way to the overriding interest of protecting public health.[39] This can be ascertained not only from the black letter of the Law but also from its spirit. Thus, in the absolute positivist as well as a more liberal interpretation, at the crux of the legislation lies the undeniable fundamental covenant of the preservation of public health, even at the cost of the privacy of a select few individuals [40].

Policy and Regulations

National Policy for Persons with Disabilities, 2006[41]
The following provisions of the Act provide for the incorporation of privacy considerations in prevalent practices with regard to persons with disabilities. The National Sample Survey Organization collects the following information on persons with disabilities: the socio- economic and cultural context, cause of disabilities, early childhood education methodologies and all matters connected with disabilities, at least once in five years.[42]This data is collected by non-medical investigators. [43]There is thus an inherent limit on the information collected. Additionally, this information is used only for the purpose for which it has been collected.

The Special Employment Exchange, as established under The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 Act, collects and furnishes information in registers, regarding provisions for employment. Access to such data is limited to any person who is authorized by the Special Employment Exchange as well as persons authorized by general or special order by the Government, to access, inspect, question and copy any relevant record, document or information in the possession of any establishment. [44] When conducting research on persons with disabilities consent is required from the individual or their family members or caregivers.[45]

HIV Interventions
In 1992, the Government of India instituted the National AIDS Control Organization (NACO) for the prevention and control of AIDS. NACO aims to control the spread of HIV in India through the implementation of Targeted Interventions (TIs) for most at risk populations (MARPs) primarily, sex workers, men having sex with men and people who inject drugs.[46]The Targeted Interventions (TIs) system of testing under this organization has however raised numerous concerns about relevant policy gaps in the maintenance of the confidentiality and privacy of persons living with HIV/ AIDS. The shortcomings in the existing policy framework include: The Lack of a limitation and subsequent confidentiality in the amount of Information collected. Project staff inTIsrecordthe name, address and other contact information of MARPs and share this data with Technical Support Unit and State AIDS Control Societies.[47] Proof of address and identity documents are required to get enrolled in government ART programs.[48]Peer-educators operate under a system known as line-listing, used to make referrals and conduct follow-ups. Peer-educators have to follow-up with those who have not gone at regular intervals for testing. [49] This practice can result in peer-educators noticing and concluding that the names missing are those who have tested positive. [50] Although voluntary in nature, the policy encourage the fulfillment of fulfilling of numerical targets, and in doing so supports unethical ways of testing.[51]

The right to privacy is an essential requirement for persons living with HIV/AIDS due to the potential stigmatizing and discriminatory impact of the revelation of this sensitive information, in any form.[52] The lack of privacy rights often fuels the spread of the disease and exacerbates its impact on high risk communities of individuals. Fears emanating from a privacy breach or a disclosure of data often deter people from getting tested and seeking medical care. The impact of such disclosure of sensitive information including the revelation of tests results to individuals other than the person being tested include low self esteem, fear of loss of support from family/peers, loss of earnings especially for female and transgender sex workers, fear of incrimination for illicit sex/drug use and the insensitivity of counselors. [53]HIV positive individualslive in constant fear of their positive status being leaked. They also shy away from treatment as they fear people might see them taking their medicines and thereby guess their status. Thus breaches in confidentiality and policy gaps in privacy regulation, especially with respect to diseases such as HIV also prevents people from seeking out treatment. [54]

Case Law

The following cases have been used to deliberate upon important points of contention within the ambit of the implementation and impact of Privacy Regulationsin the healthcare sector. This includes the nature and extent of privacy enjoyed by the patient and instances where in the privacy of the patient can be compromised in light of public interest considerations.

Mr. Surupsingh Hrya Naik vs. State of Maharashtra ,[55] (2007)

The decision in this case held that The RTI Act 2005 would supersede The Medical Council Code of Ethics. The health records of an individual in judicial custody should be made available under the Act and can only be denied in exceptional cases, for valid reasons.

Since the Code of Ethics Regulations are only delegated legislation, it was held in the case of Mr. SurupsinghHrya Naik v.State Of Maharashtra[56] that these would not prevail over the Right to Information Act, 2005 (RTI Act) unless the information sought falls under the exceptions contained in Section 8 of the RTI Act. This case dealt with the important point of contention of whether making the health records public under the RTI Act would constitute a violation of the right to privacy. These health records were required to determine why the convict in question was allowed to stay in a hospital as opposed to prison. In this context the Bombay High Court held thatThe Right to Information Act supersedes the regulation that mandate the confidentiality od a person, or in this case a convict’s medical records. It was held that the medical records of a a person sentenced or convicted or remanded to police or judicial custody, if during that period such person is admitted in hospital and nursing home, should be made available to the person asking the information provided such hospital nursing home is maintained by the State or Public Authority or any other Public Body. It is only in rare and in exceptional cases and for good and valid reasons recorded in writing can the information may be denied.

Radiological & Imaging Association v. Union of India ,^{^[57]} (2011)
On 14 January 2011 a circular was issued by the Collector and District Magistrate, Kolhapur requiring the Radiologists and Sonologists to submit an on-line form “F” under the PNDT Rules. This was challenged by the Radiological and Imaging Association, inter alia, on the ground that it violates the privacy of their patients. Deciding the above issue the Bombay High Court held that .The images stored in the silent observer are not transmitted on-line to any server and thus remain embedded in the ultra-sound machine. Further, the silent observer is to be opened only on request of the Collector/ the civil surgeonin the presence of the concerned radiologist/sonologist/doctor incharge of the Ultra-sound Clinic. In light of these considerations and the fact that the `F' form submitted on-line is submitted only to the Collector and District Magistrate is no violation of the doctor's duty of confidentiality or the patient's right to privacy. It was further observed that The contours of the right to privacy must be circumscribed by the compelling public interest flowing through each and every provision of the PC&PNDT Act, when read in the background of the following figures of declining sex ratio in the last five decades.

The use of a Silent Observer system on a sonograph has requisite safeguards and doesn’t violate privacy rights. The declining sex ratio of the country was considered a compelling public Interest that could supersede the right to privacy.

Smt. Selvi and Ors. v.State of Karnataka (2010)
The Supreme Court held that involuntary subjection of a person to narco analysis, polygraph test and brain-mapping violates the ‘right against self-incrimination' which finds its place in Article 20(3)[58] of the Constitution. [59] The court also found that narco analysis violated individuals’ right to privacy by intruding into a “subject’s mental privacy,” denying an opportunity to choose whether to speak or remain silent, and physically restraining a subject to the location of the tests and amounted to cruel, inhuman or degrading treatment.[60]

The Supreme Court found that Narco-analysis violated an individuals’ right to privacy by intruding into a “subject’s mental privacy,” denying an opportunity to choose whether to speak or remain silent.

Neera Mathur v. Life Insurance Corporation (LIC),[61] (1991)
In this casethe plaintiff contested a wrongful termination after she availed of maternity leave. LIC required women applicants to furnish personal details like their menstrual cycles, conceptions, pregnancies, etc. at the time of appointment. Such a requirement was held to go against the modesty and self respect of women. The Court held that termination was only because of disclosures in application, which was held to be intrusive, embarrassing and humiliating. LIC was directed to delete such questions.

The Court did not refer to the term privacy however it used the term personal details as well as modesty and self respect, but did not specifically link them to the right to life or any other fundamental right. These terms (modesty and self respect) are usually not connected to privacy but although they may be the harm which comes from an intrusion of one’s privacy.

The Supreme Court held that Questions related to an individual’s reproductive issues are personal details and should not be asked in the service application forms.

Ms. X vs. Mr. Z &Anr ,[62] (2001)
In this case, the Delhi High Court held that an aborted foetus was not a part of the body of a woman and allowed the DNA test of the aborted foetus at the instance of the husband. The application for a DNA test of the foetus was contested by the wife on the ground of “Right to Privacy”.7In this regard the court held that The Supreme Court had previously decided that a party may be directed to provide blood as a DNA sample but cannot be compelled to do so. The Court may only draw an adverse interference against such party who refuses to follow the direction of the Court in this respect.The position of the court in this case was that the claim that the preservation of a foetus in the laboratory of the All India Institute of Medical Science, violates the petitioner’s right to privacy, cannot be entertained as the foetus had been voluntarily discharges from her body previously, with her consent. The foetus, that she herself has dischargedis claimed to be subjected to DNA test. Thus, in light of the particular facts and the context of the case, it was held that petitioner does not have any right of privacy.

A woman’s right to privacy does not extend to a foetus, which is no longer a part of her body. The right to privacy may arise from a contract as well as a specific relationship, including a marital relationship. The principle in this case has been laid down in broad enough terms that it may be applied to other body parts which have been disassociated from the body of the individual.

It is important to note here that the fact that the Court is relying upon the principles laid down in the case of R. Rajagopal seems to suggest that the Court is treating organic tissue preserved in a public hospital in the same manner as it would treat a public document, insofar as the exception to the right to privacy is concerned.

B.K Parthasarthi vs. Government of Andhra Pradesh ,[63] (1999)
In this case, the Andhra Pradesh High Court was to decide the validity of a provision in the Andhra Pradesh Panchayat Raj Act, 1994 which stipulated that any person having more than two children should be disqualified from contesting elections. This clause was challenged on a number of grounds including the ground that it violated the right to privacy. The Court, in deciding upon the right to privacy and the right to reproductive autonomy, held thatThe impugned provision, i.eSection 19(3) of the said Act does not compel directly anyone to stop procreation, but only disqualifies any person who is otherwise eligible to seek election to various public offices coming within the ambit of the Andhra Pradesh Panchayat Raj Act, 1994 or declares such persons who have already been holding such offices to be disqualified from continuing in such offices if they procreate more than two children.Therefore, the submission made on behalf of the petitioners 'right to privacy' is infringed, is untenable and must be rejected.”

Mr. X v. Hospital Z, Supreme Court of India ,[64] (1998 and 2002)
The petitioner was engaged to be married and thereafter during tests for some other illness in the hospital it was found that the petitioner was HIV positive. This information was released by the doctor to the petitioner’s family and through them to the family of the girl to whom the petitioner was engaged, all without the consent of the petitioner. The Court held that:

“The Right to privacy is not treated as absolute and is subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedoms of others.”

Right to privacy and is subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedoms of others.

This decision of this case could be interpreted to extend the principle, of disclosure to the person at risk, to other communicable and life threatening diseases as well. However, a positivist interpretation would render these principle applicable to only to HIV+ cases.

M. Vijaya v. Chairman and Managing Director, Singareni Collieries Co. Ltd. [65] (2001)
The petitioner alleged that she had contracted the HIV virus due to the negligence of the authorities of Maternity and Family Welfare Hospital, Godavarikhani, a hospital under the control of Singareni Collieries Company Ltd., (SCCL), in conducting relevant precautionary blood tests before transfusion of blood of her brother (donor) into her body when she was operated for hysterectomy (Chronic Cervicitis) at the hospital. The petition was initially filed as a Public Interest Litigation,which the court duly expanded in order to address the problem of the lack of adequate precautionary measures in hospitals, thereby also dealing with issues of medical confidentiality and privacy of HIV patients. The court thus deliberated upon the conflict between the right to privacy of an HIV infected person and the duty of the state to prevent further transmission and held:

In the interests of the general public, it is necessary for the State to identify HIV positive cases and any action taken in that regard cannot be termed as unconstitutional. As under Article 47 of the Constitution, the State was under an obligation to take all steps for the improvement of the public health. A law designed to achieve this object, if fair and reasonable, in our opinion, will not be in breach of Article 21 of the Constitution of India

The right of reproductive autonomy is a component of the right to privacy .A provision disqualifying a person from standing for elections due to the number of children had, does not violate the right to privacy as the object of the legislation is not to violate the autonomy of an individual but to mitigate the population growth in the country. Measures to control population growth shall be considered legal unless they impermissibly violate a fundamental right.

However, another aspect of the matter is whether compelling a person to take HIV test amounts to denying the right to privacy? The Court analyzed the existing domestic legislation to arrive at the conclusion that there is no general law that can compel a person to undergo an HIV-AIDS test. However, specific provisions under the Prison Laws[66]

provide that as soon as a prisoner is admitted to prison, he is required to be examined medically and the record of prisoner's health is to be maintained in a register. Further, Under the ITP Act, the sex workers can also be compelled to undergo HIV/ AIDS test.[67]

Additionally, under Sections 269 and 270 of the Indian Penal Code, 1860, a person can be punished for negligent act of spreading infectious diseases.

The right to privacy of a person suspected to be HIV+ would be subordinate to the power and duty of the state to identify HIV+ patients in order to protect public interest and improve public health. However any law designed to achieve this object must be fair and reasonable. In a conflict between the individual’s privacy right and the public’s right in dealing with the cases of HIV-AIDS, the Roman Law principle 'SalusPopuliestSuprema' (regard for the public wealth is the highest law) applies when there is a necessity.

After mapping legislation that permit the invasion of bodily privacy, the Court concluded that they are not comprehensive enough to enable the State to collect information regarding patients of HIV/AIDS and devise appropriate strategies and therefore the State should draft a new legislation in this regard. Further the Court gave certain directions to the state regarding how to handle the epidemic of HIV/AIDS and one of those directions was that the “Identity of patients who come for treatment of HIV+/AIDS should not be disclosed so that other patients will also come forward for taking treatment.”

Sharda v. Dharmpal ,[68] (2003)

The basic question in this case was whether a party to a divorce proceeding can be compelled to a medical examination. The wife in the divorce proceeding refused to submit herself to medical examination to determine whether she was of unsound mind on the ground that such an act would violate her right to personal liberty. Discussing the balance between protecting the right to privacy and other principles that may be involved in matrimonial cases such as the ‘best interest of the child’ in case child custody is also in issue, the Court held:

If the best interest of a child is in issue in the case then the patient’s right to privacy and confidentiality would get limited. The right to privacy of an individual would be subordinate to the power of a court to arrive at a conclusion in a matrimonial dispute and the right of a party to protect his/her rights in a Court of law would trump the right to privacy of the other.

"Privacy" is defined as "the state of being free from intrusion or disturbance in one's private life or affairs". However, the right to privacy in India, is only conferred through an extensive interpretation of Article 21 and cannot therefore in any circumstance be considered an absolute right. Mental health treatment involves disclosure of one's most private feelings However, like any other privilege the psychotherapist-patient privilege is not absolute and may only be recognized if the benefit to society outweighs the costs of keeping the information private. Thus if a child's best interest is jeopardized by maintaining confidentiality the privilege may be limited.” Thus, the power of a court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot beheld to violate the petitioner’s right to privacy.

Regulation of Privacy in Government and Private Hospitals and Diagnostic Laborataries

A. Field Study
The Hospitals that have been chosen for the analysis of the efficacy of these legislations include prominent Government Hospitals, Private Hospitals and Diagnostic Centers. These Institutes were chosen because of their widely accredited status as centers of medical research and cutting edge treatment. They have also had a long standing reputation due to their staff of experienced and skilled on call doctors and surgeons. The Private Hospitals chosen had patient welfare centers that addressed the concerns of patients including questions and doubts relating to but not limited to confidentiality and consent. The Government hospitals had a public relations office that addressed the concerns of discharged patients. They also provided counseling services to patients to aid them in addressing concerns relate to the treatment that they might want to be kept confidential. Diagnostic laboratories also have an HR department that addresses similar concerns. The laboratory also has a patient welfare manager who addresses the concerns and queries of the patient prior to and during the procedure.

The following section describes the practices promulgated by Government and Private Hospitals, as well as Diagnostic Laboratories in their endeavor to comply with the basic principles of privacy as laid down in the A.P Shah Committee report on Privacy.

(i) Notice

Through an analysis of the information provided by Government and Private hospitals and diagnostic laboratories, relevant conclusions were drawn with regard to the nature, process and method in which the patient information is recorded. Through interviews of various medical personnel including administrative staff in the patient welfare and medical records departments we observed an environment of openness and accountability within the structure of the patient registration system.

In Government Hospitals, the patient is notified of all types of information that is collected, in terms of both personal information as well as medical history. The Patient admission as well as the patient consent form is filled out by the patient or the attending relative accompanying the patient and assistance for the same is provided by the attending staff members, who explain the required details that need to be filled in a language that the patient is able to understand. The patient is notified of the purpose for which such information is collected and the procedure that he/ she might have to undergo depending on his injury or illness. The patient is not however, notified of the method in which he/she may correct or withdraw the information that is provided. There is no protocol provided for the correction or withdrawal of information, once provided. The patient is, at all times notified of the extent and nature of doctor patient confidentiality including the fact that his/her personal information would not be shared even with his/her immediate relatives , insurance companies, consulting doctors who are not directly involved with his/her treatment or any unauthorized third party without requisite consent from the patient. The patient is informed of the fact that in some cases the medical records of the patient will have to be shared with consulting doctors and that all the patient’s medical records would be provided to insurance companies, but this will only be done with the consent of the patient.

The same system of transparency and accountability transcends across private hospitals and diagnostic laboratories as well. In private hospitals, the patient is informed of all the information that is collected and the purpose for which such information may be collected. Diagnostic laboratories have specific patient consent forms for specific types of procedures which the patient will have to fill out depending on the required tests. These forms contain provisions with regard to the confidential nature of all the information provided. This information can only be accessed by the patient and the consulting doctor with the consent of the patient. Both private hospitals and diagnostic laboratories have a specific protocol and procedure in place to correct or withdraw information that has been provided. In order to do so the patient would have to contact the medical records department with requisite proof of the correct information. Private hospitals inform patients of the nature and extent of doctor patient confidentiality at every stage of the registration process. Some private hospitals contain patient safety brochures which inform patients about the nature and extent of consent and confidentiality, even with regard to consulting doctors and insurance agencies. If the patient does not want certain information revealed to insurance agencies the hospital will retain such records and refraining from providing them to third party insurance agencies. Thus, all information provided by the patient remains confidential at the behest of the patient.

(ii) Choice and Consent

Choice and consent are two integral aspects of the regulation of privacy within the healthcare sector. Government and Private hospitals as well as diagnostic laboratories have specific protocols in place to ensure that the consent of the patient is taken at every stage of the procedure. The consent of the patient can also be withdrawn just prior to the procedure even if this consent has already been given by the patient in writing, previously. The choice of the patient is also given ample importance at all stages of the procedure. The patient can refuse to provide any information that may not mandatorily required for the treatment provided basic information regarding his identity and contact information in case of emergency correspondence has been given.

(iii) Collection Limitation

The information collected from the patient in both government and private hospitals is used solely for the purpose that the patient has been informed of. In case this information is used for purposes other than for the purpose that the patient has been informed of, the patient is informed of this new purpose as well. Patient records in both Government and Private hospitals are stored in the Medical Records Department as hard copies and in some cases as scanned soft copies of the hard copy as well. These Medical Records are all stored within the facility. The duration for which the records are stored range from a minimum of two years to a maximum of ten years in most private hospitals. Some private hospitals store these records for life. Government hospitals store these records for a term of thirty years only as hard copies after which the records are discarded. Private hospitals make medical records accessible to any medical personnel who may ask for it provided the requisite proof of identity and reasons for accessing the same are provided, along with an attested letter of authorization of the doctor who is currently involved or had been involved in the treatment of the patient. Government hospitals however do not let any medical personnel access these records except for the doctor involved in the treatment of that particular patient. Both private and government hospitals are required to share the medical records of the patient with the insurance companies. Government Hospitals only share patient records with nationalized insurance agencies such as The Life Insurance Corporation of India (LIC) but not with private insurance agencies. The insurance claims forms that are required prior to providing medical records to the insurance companies mandatorily require the signature of the patient. The patient is thus informed that his records will be shared with the insurance agencies and his signature is a proof of his implied consent to the sharing of these records with the company with which he has filed a health insurance claim.

Diagnostic laboratories collect patient information solely for the purpose of the particular test that they have been asked to conduct by the treating or consulting doctor. Genetic samples (Blood, Semen, Urine etc) are collected at one time and the various tests required are conducted on these samples. In case of any additional testing that is required to be conducted on these samples, the patient is informed. Additional testing is conducted only in critical cases and in cases where the referral doctor requests for the same to be conducted on the collected samples. In critical cases, where immediate testing is required and the patient is unreachable, the testing is conducted without informing the patient. The patient is mandatorily informed after the test that such additional testing was conducted. The patient sample is stored for one week within the same facility. The Patient records are digitized. They can only be accessed by the patient, who is provided with a particular username and password using which he can access only his records. The information is stored for a minimum of two years. This information can be made available to a medical personnel only if such medical personnel has the required lab no, the patients name, and reason for which it needs to be accessed. He thus requires the permission of the authorities at the facility as well as the permission and consent of the patient to access such records. The Medical test records of a patient are kept completely confidential. Even insurance companies cannot access such records unless they are provided to the company by the patient himself. In critical cases however, the patient information and tests results are shared with the treating or referral doctor without the consent of the patient.

(iv) Purpose Limitation

In Government and Private Hospitals, the information is only used for the purpose for which it is collected. There is thus a direct and relevant connection between the information collected and the purpose for which it used. Additional information is collected to gauge the medical history of the patient that may be relevant to the disease that has to be treated. The information is never deleted after it has been used for the purpose for which it had been collected. The Medical Records of the patient are kept for extended periods in hard copy as well as soft copy versions. There is a provision for informing the patient in case the information is used for any purpose other than the purpose for which it was collected. Consent of the patient is taken at all stages of collecting and utilizing the information provided by him.

Diagnostic Laboratories have a database of all the information collected which is saved in the server. The information is mandatorily deleted after it has been used for the purpose for which it was collected after a period of two years. In case the information is used for any purpose other than the purpose for which it was collected, for example, in critical cases where additional tests have to be conducted the patient is\ always informed of the same.

(v) Access and Correction

In private hospitals, the patient is allowed to access his own records during his stay at the hospital. He is given a copy of his file upon his discharge from the hospital in the form of a discharge summary. However, if he needs to access the original records at a later stage, he can do so by filing a request for the same at the Medical Records Department of the hospital. A patient can make amendments or corrections to his records by providing requisite proof to substantiate the amended information. The patient however at no stage can confirm if the hospital is holding or processing personal information about him or her with the exception of the provisions provided for the amendment or correction to the information held.

The Medical records of a patient in a government hospital are completely sealed. A patient has no access to his own records. Only the concerned doctor who was treating the patient during his stay at the hospital can access the records of the patient. This doctor has to be necessarily associated with the hospital and had to have been directly involved in the patient’s treatment in order to access the records. The patient is allowed to amend information in his medical records but only generic information such as the spelling of his name, his address, telephone number etc. The patient is at no point allowed to access his own records and therefore cannot confirm if the hospital is holding or processing any information about him/her. The patient is only provided with a discharge summary that includes his personal information, the details of his disease and the treatment provided in simple language.

Diagnostic laboratories have an online database of patient records. The patient is given a username and a password and can access the information at any point. The patient may also amend or correct any information provided by contacting the Medical records department for the same. The patient can at any time view the status of his record and confirm if it is being held or processed by the hospital. A copy of such information can be obtained by the patient at any time.

(vi) Disclosure of Information

Private Hospitals are extremely cautious with regard to the disclosure of patient information. Medical records of patients cannot be accessed by anyone except the doctor treating that particular patient or consulting on the case. The patient is informed whenever his records are disclosed even to doctors. Usually, even immediate relatives of the patient cannot access the patient’s records without the consent of the patient except in cases where the condition of the patient is critical. The patient is always informed about the type and extent of information that may be disclosed whenever it is disclosed. No information of the patient is made available publicly at any stage. The patient can refuse to consent to sharing of information collected from him/her with non-authorized agencies. However, in no circumstance is the information collected from him/her shared with non authorized agencies. Some private hospitals also provide the patient with patient’s safety brochures highlighting the extent of doctor patient confidentiality, the patient’s rights including the right to withdraw consent at any stage and refuse access of records by unauthorized agencies.

In government hospitals, the medical records of the patient can only be disclosed to authorized agencies with the prior approval of patient. The patient is made aware of the type and extent of information that is collected from him/her and is mandatorily shared with authorized bodies such as insurance agencies or the treating doctor. No information of the patient is made publicly available. In cases where the information is shared with insurance agencies or any such authorized body the patient gives an undertaking via a letter of his consent to such disclosure. The insurance companies only use medical records for verification purposes and have to do so at the facility. They cannot take any original documents or make copies of the records without the consent of the patient as provided in the undertaking.

Diagnostic Laboratories provide information regarding the patient’s medical records only to the concerned or referred doctor. The patient is always informed of any instance where his information may be disclosed and the consent of the patient is always taken for the same. No information is made available publicly or shared with unauthorized agencies at any stage. Information regarding the patient’s medical records is not even shared with insurance companies.

Government and Private Hospitals provide medical records of patients to the police only when a summons for the same has been issued by a judge. Diagnostic laboratories however do not provide information regarding a patient’s records at any stage to any law enforcement agencies unless there is summons from a judge specifying exactly the nature and extent of information required.

Patients are not made aware of laws which may govern the disclosure of information in private and government hospitals as well as in diagnostic laboratories. The patient is merely informed that the information provided by him to the medical personnel will remain confidential.

(vii) Security

The security measures that are put in place to ensure the safety of the collected information is not adequately specified in the forms or during the collection of information from the patient in Government or Private Hospitals. Diagnostic laboratories however do provide the patient with information regarding the security measures put in place to ensure the confidentiality of the information.

(viii) Openness

The information made available to the patient at government and private hospital and diagnostic laboratories is easily intelligible. At every stage of the procedure the explicit consent of the patient is obtained. In government and private hospitals the signature of the patient is obtained on consent forms at every stage of the procedure and the nature and extent of the procedure is explained to the patient in a language that he understands and is comfortable speaking. The information provided is detailed and is provided in simplistic terms so that the patient does at all stages understand the nature of any procedure he is consenting to undergo.

(ix) Accountability

Private hospitals and Diagnostic laboratories have internal and external audit mechanisms in place to check the efficacy of privacy measures. They both have grievance redress mechanisms in the form of patient welfare cells and complaint cells. There is an assigned officer in place to take patient feedback and address and manage the privacy concerns of the patient.

Government hospitals do not have an internal or external audit mechanism in place to check the efficacy of privacy measures. There is however a grievance redressal mechanism in government hospitals in the form of a Public Relations Office that addresses the concerns, complaints, feedback and suggestions of the patients. There is an officer in charge of addressing and managing the privacy concerns of patients. This officer also offers counseling to the patients in case of privacy concerns regarding sensitive information.

International Best Practices and Recommendations

A. European Union
An official EU data protection regulation [69]was issued in January 2012. A key objective of this was to introduce a uniform policy directive across all member states. The regulation, once implemented was to be applicable in all member states and left no room for alteration or amendments.

The regulation calls for Privacy Impact Assessments[70]when there are specific risks to privacy which would include profiling, sensitive data related to health, genetic material or biometric information. This is an important step towards evaluating the nature and extent of privacy regulation required for various procedures and would be effective in the creation of a systematic structure for the implementation of these regulations. The regulation also established the need for explicit consent for sensitive personal data. The basis for this is an inherent imbalance in the positions of the data subject and the data controller, or in simpler terms the patient and the hospital or the life sciences company conducting the research. Thus, implied consent is not enough [71]and a need arises to proceed with the testing only when there is explicit informed consent.

Embedded within the regulation is the right to be forgotten [72]wherein patients can request for their data to be deleted after they have been discharged or the clinical trial has been concluded. In the Indian scenario, patient information is kept for extended periods of time. This can be subject to unauthorized access and misuse. The deletion of patient information once it has been used for the purpose for which it was collected is thus imperative towards the creation of an environment of privacy protection.

Article 81 of the regulation specifies that health data may be processed only for three major processes[73] :

a) In cases of Preventative or occupational medicine, medical diagnosis, the care, treatment or management of healthcare services, and in cases where the data is processed by the healthcare professionals, the data is subject to the obligation of professional secrecy;

b) Considerations of public interest bearing a direct nexus to public health, for example, the protection of legitimate cross border threats to health or ensuring a high standard of quality and safety for medicinal products or services;

c) Or other reasons of public interest such as social protection.

An added concern is the nature and extent of consent. The consent obtained during a clinical trial may not always be sufficient to cover additional research even in instances of data being coded adequately. Thus, it may not be possible to anticipate additional research while carrying out initial research. Article 83[74] of the regulation prohibits the use of data collected for an additional purpose, other that the purpose for which it was collected.

Lastly, the regulation covers data that may be transferred outside the EEA, unless there is an additional level of data protection. If a court located outside the EU makes a request for the disclosure of personal data, prior authorization must be obtained from the local data protection authority before such transfer is made. It is imperative that this be implemented within Indian legislation as currently there is no mechanism to regulate the cross border transfer of personal data.

B. The United States of America
The Health Maintenance Organizations Act, 1973 [75]was enacted with a view to keep up with the rapid development in the Information Technology sector. The digitization of personal information led to new forms of threats with regard to the privacy of a patient. In the face of this threat, the overarching goal of providing effective and yet unobtrusive healthcare still remains paramount.

To this effect, several important federal regulations have been implemented. These include the Privacy and Security Ruled under the Health Insurance Portability and Accountability Act (HIPAA) 1996[76] and the State Alliance for eHealth (2007) [77].The HIPAA privacy rules addressed the use and subsequent disclosure of a patient's personal information under various healthcare plans, medical providers, and clearinghouses. These insurance agencies were the primary agents involved in obtaining a patients information for purposes such as treatment, payment, managing healthcare operations, medical research and subcontracting. Under the HIPAA it is required of insurance agencies to ensure the implementation of various administrative safeguards such as policies, guidelines, regulations or rules to monitor and control inter as well as intra organizational access.

Apart from the HIPAA, approximately 60 laws related to privacy in the healthcare sector have been enacted in more than 34 states. These legislations have been instrumental in creating awareness about privacy requirements in the healthcare sector and improving the efficiency of data collection and transfer. Similar legislative initiative is required in the Indian context to aid in the creation of a regulated and secure atmosphere pertaining to the protection of privacy within the healthcare sector.

C. Australia
Australia has a comprehensive law that deals with sectoral regulations of the right to privacy.An amendment to the Privacy Act1988 [78]applies to all healthcare providers and was made applicable from 21st December 2001.The privacy Act includes the followingpractices:

a. A stringent requirement for informed consent prior to the collection of health related information

b. A provision regarding the information that needs to be provided to individuals before information is collected from them

c. The considerations that have to be taken into account before the transfer of information to third parties such as insurance agencies, including the specific instances wherein this information can be passed on

d. The details that must be included in the Privacy policy of the healthcare service providers' Privacy Policy

e. The securing and storing of information; and

f. Providing individuals with a right to access their health records.

These provisions are in keeping with the 13 National Privacy [79]Principles that represent the minimum standards of privacy regulation with respect to the handling of personal information in the healthcare sector.These guidelines are advisory in nature and have been issued by the Privacy Commissioner in exercise of his power under Section 27(1)(e) [80]of the Privacy Act.

The Act also embodiessimilar privacy principles which include a collection limitation, a definitive use and purpose for the information collected, a specific set of circumstance and an established protocol for the disclosure of information to third parties including the nature and extent of such disclosure, maintenance accuracy ofthe data collected, requisite security measures to ensure the data collected is at all times protected, a sense of transparency,accountability and openness in the administrative functioning of thehealthcare provider and accessibility of the patient to his ownrecords for the purpose of viewing, corroboration or correction.

Additionally, the Act includes the system of identifiers which includes a number assigned by the organization to an individual to identify the purpose of that person's data for the operation of the organization. Further, the Act provides for anonymity wherein individuals have the optionnot to identify themselves while entering into transactions with an organization. The Act also provides for restrictions on the transfer of personal data outside Australia and establishes conclusive and stringent barriers to the extent of collection of personal and sensitive data.These principles although vaguely similar to those highlighted in the A.P. Shah Committee report can be usedto streamline the regulations pertaining to privacy in the healthcare sector and make them more efficient.

Key Recommendations

It is Imperative that Privacy concerns relating to the transnational flow of Private data be addressed in the most efficient way possible. This would involve international cooperation and collaboration to address privacy concerns including clear provisions and the development of coherent minimum standards pertaining to international data transfer agreements. This exchange of ideas and multilateral deliberation would result in creating more efficient methods of applying the provisions of privacy legislation even within domestic jurisdictions.

There is a universal need for the development of a foundational structure for the physical collection, use and storage of human biological specimens (in contrast to the personalinformation that may be derived from those specimens) as these are extremely important aspects of biomedical research and clinical trials. The need for Privacy Impact Assessments would also arise in the context of clinical trials, research studies and the gathering of biomedical data.

Further, there also arises the need for patients to be allowed to request for the deletion of their personal information once it has served the purpose for which it was obtained. The keeping of records for extended periods of time by hospitals and laboratories is unnecessary and can often result in the unauthorized access to and subsequent misuse of such data.

There is a definitive need to ensure the incorporation of safeguards to regulate the protection of patient’s data once accessed by third parties, such as insurance companies. In the Indian Context as well as insurance agencies often have unrestricted access to a patient's medical records however there is a definitive lack of sufficient safeguards to ensure that this information is not released to or access by unauthorized persons either within these insurance agencies or outsourced consultants

The system of identifiers which allocate specific numbers to an individual’s data which can only be accessed using that specific number or series of numbers can be incorporated into the Indian system as well and can simplify the administrative process thus increasing its efficacy. This would afford individuals the privilege of anonymity while entering into transactions with specific healthcare institutions.

An important means of responding to public concerns over potential unauthorized use ofpersonal information gathered for research, could be through the issuing of Certificates of confidentiality as issued in the United States to protectsensitive information on research participants from forced disclosure. [81]

Additionally, it is imperative that frequent discussions, deliberations, conferences and roundtables take place involving multiple stakeholders form the healthcare sector, insurance companies, patient’s rights advocacy groups and the government. This would aid in evolving a comprehensive policy that would aid in the protection of privacy in the healthcare sector in an efficient and collusive manner.

Conclusions

The Right to Privacy has been embodied in a multitude of domestic legislations pertaining to the healthcare sector. The privacy principles envisioned in the A.P Shah Committee report have also been incorporated into the everyday practices of healthcare institutions to the greatest possible extent. There are however significant gaps in the policy formulation that essentially do not account for the data once it has been collected or its subsequent transfer. There is thus an imminent need for institutional collaboration in order to redress these gaps. Recommendations for the same have been made in the report. However, for an effective framework to be laid down there is still a need for the State to play an active role in enabling the engagement between different institutions both in the private and public domain across a multitude of sectors including insurance companies, online servers that are used to harbour a data base of patient records and civil action groups that demand patient privacy while at the same time seek to access records under the Right to Information Act. The collaborative efforts of these multiple stakeholders will ensure the creation of a strong foundational framework upon which the Right to Privacy can be efficiently constructed.

[1] . Report of the group of experts on Privacy chaired by Justice A.P Shah <http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf> [Accessed on 14^th May 2014]

[2] . Nissenbaum, H. (2004). Privacy as Contextual Integrity. Washington Law Review, 79(1), 101-139.

[3] . Ibid.

[4] . Thomas, J. (2009). Medical Records and Issues in Negligence, Indian Journal of Urology : IJU : Journal of the Urological Society of India, 25(3), 384-388. doi:10.4103/0970-1591.56208.

[5] . Ibid

[6] . Plaza, J., &Fischbach, R. (n.d.). Current Issues in Research Ethics : Privacy and Confidentiality. Retrieved December 5, 2011, from http://ccnmtl.columbia.edu/projects/cire/pac/foundation/index.html.

[7] . Ibid.

[8] . The Mental Health Act, 1987 <https://sadm.maharashtra.gov.in/sadm/GRs/Mental%20health%20act.pdf> [Accessed on 14^th May 2014]

[9] . The Mental Health Act, 1987, s. 13(1).

[10] .The Mental Health Act, 1987, s. 38.

[11] .The Mental Health Act, 1987, s. 40.

[12] .The Mental Health Act, 1987, s. 21(2).

[13] .The Mental Health Act, 1987, s. 13(1), Proviso.

[14] . Also see the: Pre-Conception and and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996.

[15] . Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, s. 4(3).

[16] . Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, s. 4(2). Pre-natal diagnostic techniques shall be conducted for the purposes of detection of: chromosomal abnormalities, genetic metabolic diseases, haemoglobinopathies, sex-linked genetic diseases, congenital anomalies any other abnormalities or diseases as may be specified by the Central Supervisory Board.

[17] .Medical Termination of Pregnancy Amendment Act, 2002, Notification on Medical Termination of Pregnancy (Amendment) Act, Medical Termination of Pregnancy Regulations, 2003 and Medical Termination of Pregnancy Rules, 2003.

[18] .Medical Termination of Pregnancy Act, 1971 (Amended in 2002), s. 2(4) and 4, and Medical Termination of Pregnancy Rules, 2003, Rule 8

[19] .Medical Termination of Pregnancy Regulations, 2003, Regulation 4(5).

[20] .Medical Termination of Pregnancy Regulations, 2003, Regulation 5.

[21] .Medical Termination of Pregnancy Regulations, 2003, Regulation 4(2).

[22] .Medical Termination of Pregnancy Regulations, 2003, Regulations 4(2) and 4(4).

[23] . Code of Ethics Regulations, 2002 available at

http://www.mciindia.org/RulesandRegulations/CodeofMedicalEthicsRegulations2002.aspx .

[24] . Code of Ethics Regulations, 2002 Chapter 2, Section 2.2.

[25] .Ethical Guidelines for Biomedical Research on Human Subjects. (2006) Indian Council of Medical Research New Delhi.

[26] . Informed Consent Process, Ethical Guidelines for Biomedical ResearchonHuman Subjects (2006). Indian Council of Medical Research New Delhi.P. 21.

[27] . Statement of Specific Principles for Human Genetics Research, Ethical Guidelines for Biomedical ResearchonHuman Subjects (2000) . Indian Council of Medical Research New Delhi.P. 62.

[28] . General Ethical Issues. Ethical Guidelines for Biomedical ResearchonHuman Subjects (2006). Indian Council of Medical Research New Delhi.P. 29.

[29] . Statement of Specific Principles for Epidemiological Studies, Ethical Guidelines for Biomedical ResearchonHuman Subjects (2000) . Indian Council of Medical Research New Delhi P. 56.

[30] . Statement of General Principles, Principle IV and Essential Information on Confidentiality for Prospective Research Participants, Ethical Guidelines for Biomedical ResearchonHuman Subjects (2006). Indian Council of Medical Research New Delhi.P. 29.

[31] . The IRDA (Third Party Administrators - Health Services) Regulations 2001, (2001), Chapter 5. Section 2.

[32] . The IRDA (Sharing Of Database for Distribution of Insurance Products) Regulations 2010.

[33] . The IRDA (Sharing Of Database For Distribution Of Insurance Products) Regulations 2010.

[34] . The IRDA (Sharing Of Database For Distribution Of Insurance Products) Regulations 2010

[35] . List of TPAs Updated as on 19th December, 2011, Insurance Regulatory and Development Authority (2011), http://www.irda.gov.in/ADMINCMS/cms/NormalData_Layout.aspx?page=PageNo646 (last visited Dec 19, 2011).

[36] . The IRDA, Guideline on Outsourcing of Activities by Insurance Companies, (2011).

[37] . The IRDA, Guideline on Outsourcing of Activities by Insurance Companies, (2011), Section 9.11. P. 8.

[38] .The Epidemic Diseases Act, 1897.

[39] .The Epidemic Diseases Act, 1897. s. 2.1.

[40] .The Epidemic Diseases Act, 1897, s. 2.2(b).

[41] . The National Policy for Persons with Disabilities, 2006, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996.

[42] . Research, National Policy for Persons with Disabilities, 1993.

[43] . Survey of Disabled Persons in India. (December 2003) National Sample Survey Organization. Ministry of Statistics and Programme Implementation. Government of India.

[44] .Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act. 1995, Section 35.

[45]. Research. National Policy for Persons with Disabilities, 2003.

[46]. http://www.lawyerscollective.org/files/Anti%20rights%20practices%20in%20Targetted%20Interventions.pdf

[47]. http://www.lawyerscollective.org/files/Anti%20rights%20practices%20in%20Targetted%20Interventions.pdf

[48]. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.22.

[49]. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.16.

[50]. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.16.

[51]. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.14.

[52]. http://www.hivaidsonline.in/index.php/HIV-Human-Rights/legal-issues-that-arise-in-the-hiv-context.html

[53]. Chakrapani et al, (2008) ‘HIV Testing Barriers and Facilitators among Populations at-risk in Chennai, India’, INP, p 12.

[54]. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.24.

[55] .http://www.indiankanoon.org/doc/570038/

[56] .http://www.indiankanoon.org/doc/570038/

[57] .http://www.indiankanoon.org/doc/680703/

[58] . No person accused of any offence shall be compelled to be a witness against himself’, (the 'right to silence').

[59] . http://indiankanoon.org/doc/338008/

[60] . http://www.hrdc.net/sahrdc/hrfeatures/HRF205.pdf

[61] . AIR 1992 SC 392.

[62] . 96 (2002) DLT 354.

[63] .AIR 2000 A.P 156.

[64] .http://indiankanoon.org/doc/382721/

[65] .http://indiankanoon.org/doc/859256/

[66] .See Sections 24, 37, 38 and 39 of The Prisons Act, 1894 (Central Act 9 of 1894) Rules 583 to 653 (Chapter XXXV) and Rules 1007 to 1014 (Chapter LVII) of Andhra Pradesh Prisons Rules, 1979

[67] .Section 10-A,17(4) ,19(2) Immoral Traffic (Prevention) Act 1956

[68] .http://www.indiankanoon.org/doc/1309207/

[69] . http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf

[70] . Article 33, Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) < http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf> [Accessed on 14^th May, 2014]

[71] .Article 4 (Definition of “Data Subject’s Consent”), Article 7, Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

[72] . Article 17, “Safeguarding Privacy in a Connected World – A European Data Protection Framework for the 21st

Century” COM(2012) 9 final. Based on, Article 12(b), EU Directive 95/46/EC – The Data Protection Directive at <http://www.dataprotection.ie/docs/EU-Directive-95-46-EC-Chapter-2/93.htm> [Accessed on 14^th May, 2014]

[73] . Article 81, Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

[74] .Article 83, Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

[75] . Health Maintainence and Organization Act 1973, Notes and Brief Reports available at http://www.ssa.gov/policy/docs/ssb/v37n3/v37n3p35.pdf [Accessed on 14th May 2014].

[76] . Health Insurance Portability and Accountability Act, 1996 available at http://www.hhs.gov/ocr/privacy/hipaa/administrative/statute/hipaastatutepdf.pdf [Accessed on 14th May 2014]

[77] . Illinois Alliance for Health Innovation plan available at http://www2.illinois.gov/gov/healthcarereform/Documents/Alliance/Alliance%20011614.pdf [Accessed on 14^th May 2014]

[78] . The Privacy Act 1988 available at http://www.comlaw.gov.au/Series/C2004A03712 [Accessed on 14th May 2014]

[79] . Schedule 1, Privacy Act 1988 [Accessed on 14^th May 2014]

[80] .Section 27(e), Privacy Act 1988 [Accessed on 14^th May 2014]

[81] . Guidance on Certificates of Confidentiality, Office of Human Research Protections, U.S Department of Health and Human Services available at http://www.hhs.gov/ohrp/policy/certconf.pdf [Accessed on 14^th May, 2014].

For more details visit https://cis-india.org/internet-governance/blog/privacy-in-healthcare-policy-guide

University of Mysore Re-releases Kannada Vishwakosha (Encyclopaedia) under Creative Commons Free License

pavanaja — 2014-07-24T07:03:45Z

The University of Mysore and the Centre for Internet and Society co-organized the Open Knowledge Day in Mysore on July 15, 2014. On this occasion Mysore University released six volumes of Kannada Vishwakosha under the Creative Commons (CC) license.

Kannada Vishwakosha brought out by the University of Mysore can easily be termed as the best encyclopaedia in Kannada. It has been modelled after the famous Britannica encyclopaedia. Mysore University Vishwakosha has 14 volumes having a total of 13802 pages. The very first volume was brought out in the year 1969 and the final volume was released in 2004. Many famous Kannada authors, scientists, academicians and stalwarts from other fields have worked on creating this encyclopaedia. The print volumes of the first version of the encyclopaedia are out of stock now. Recently UoM has started revising and reprinting the encyclopaedia. So far 4 volumes have been revised, enhanced and published.

UoM believes in Open Access to Knowledge. It has put up the research outputs from its departments online for free access to the public. UoM has done these as a subscriber to the idea of Budapest Open Access Initiative. The Open Access Institutional Repository, of UoM, covers scholarly publications covering journal articles, conference papers, books, book reviews, presentations, reports and patents ever since UoM was established in 1916. Extending the philosophy of open knowledge to the Kannada encyclopaedia published by UoM becomes a natural extension. UoM is in the verge of celebrating its centenary soon and has taken many initiatives in that direction.

CIS-A2K has been in negotiations with UoM towards releasing of its high quality Kannada Vishwakosha (Kannada Encyclopaedia) under Creative Commons license. CIS and UoM signed a MoU on February 22, 2014. Here is the relevant extract from the MoU: "They will work together to digitize all encyclopaedic publications for which the copyright is owned by UoM, and re-release them under the Creative Common license (CC-BY-SA 3.0). The digitized content will be made available for everyone through free content distribution platforms like Wikipedia and Wikisource. The digitization will be done employing the global standard Unicode so that the content has longevity, is universally portable and is easily searchable. Both parties have joined hands to undertake the above in order to enhance digital literacy in the Kannada language and facilitate collaborative production and free dissemination of knowledge in Kannada to the students, academics, researchers and the wider public. The parties also believe that by reintroducing the knowledge in digital and openly accessible formats could significantly enhance the production of knowledge in Kannada and give a new lease of life to Kannada language in the digital era. The parties will co-design and jointly implement relevant programmes to achieve this objective." As part of this MoU, UoM agreed to release the first six volumes of Kannada Vishwakosha under CC.

Volume numbers 1, 2, 4 and 6 of Kannada Vishwakosha of UoM have been revised and published recently. A project page has been created in Kannada Wikipedia for this project. Kannada Wikipedians joined hands in the project. The project involved extracting the text from the soft copies of the files, converting them into Unicode, extracting articles from these files and uploading them to Kannada Wikisource.

A team of interns from Christ University had a major role to play in this development. These were students from the Wikipedia in Education Program that was conducted in Christ University during the academic period of 2013-14. These students took active part in the current project and uploaded about 1200 articles so far (till July 21, 2014).

Media Coverage

The event attracted very good media coverage. Leading English and Kannada dailies like Andolana Kannada, City Today, Deccan Herald, Hosa Diganta, Kannada Jana Mana, Kannada Prabha, Rajya Dharma, Samyukta Karnataka, The Hindu, The New Indian Express, Udayavani, Vijaya Karnataka, and Vijaya Vani published about this. Scanned versions of the published articles can be downloaded here.

Other Links:

UoM Kannada Vishwakosha conversion project page in Kannada Wikipedia - http://bit.ly/mysoreunivwp
Articles from UoM Kannada Vishwakosha in Kannada Wikisource - http://bit.ly/mysoreuniv
Category UoM Kannada Vishwakosha in Kannada Wikisource - http://bit.ly/mysoreunivws
For pictures from the Open Knowledge Day event in Mysore - https://commons.wikimedia.org/wiki/Category:Mysore_University_Open_Knowledge_Day

For more details visit https://cis-india.org/openness/blog-old/university-of-mysore-releases-kannada-vishwakosha-under-cc-license

Delhi High Court Orders Blocking of Websites after Sony Complains Infringement of 2014 FIFA World Cup Telecast Rights

sinha — 2014-07-08T07:02:16Z

Of late the Indian judiciary has been issuing John Doe orders to block websites, most recently in Multi Screen Media v. Sunit Singh and Others. The order mandated blocking of 472 websites, out of which approximately 267 websites were blocked as on July 7, 2014. This trend is an extremely dangerous one because it encourages flagrant censorship by intermediaries based on a judicial order which does not provide for specific blocking of a URL, instead provides for blocking of the entire website.

The High Court of Delhi on June 23, 2014 issued a John Doe injunction restraining more than 400 websites from broadcasting 2014 FIFA world cup matches. News reports indicate that the Single judge bench of Justice V. Kameswar Rao directed the Department of Telecom to issue appropriate directions to ISPs to block the websites that Multi Screen Media provided, as well as “any other website identified by the plaintiff” in the future. On July 4, Justice G. S. Sistani permitted reducing the list to 219 websites.

Background

Multi Screen Media (MSM) is the official broadcaster for the ongoing 2014 FIFA World Cup tournament. FIFA (the Governing body) had exclusively licensed rights to MSM which included live, delayed, highlights, on demand, and repeat broadcast of the FIFA matches. MSM complained that the defendants indulged in hosting, streaming, providing access to, etc, thereby infringing the exclusive rights and broadcast and reproduction rights of MSM.

The court in the instant order held that the defendants had prima facie infringed MSM’s broadcasting rights, which are guaranteed by section 37 of the Copyright Act, 1957. In an over-zealous attempt to pre-empt infringement the court called for a blanket ban on all websites identified by MSM. Further, the court directed the concerned authorities to ensure ISPs complied with this order and block the websites mentioned by MSM presently, and other websites which may be subsequently be notified by MSM.

Where the Court went Wrong

The court stated that MSM successfully established a prima facie case, and on its basis granted a sweeping injunction to MSM ordering blocking 471 second level domains. I’d like to point out numerous flaws with the order-

Dissatisfactory "Prima facie case"

In my opinion the court could have scrutinised the list of websites provided by MSM more carefully. There is nothing in the order to suggest that evidence was proffered by MSM in support of the list. The order reveals that the list was prepared by MarkScan, a “consulting boutique dedicated to (the client’s) IP requirements in the cyberspace and the Indian sub-continent.” The list throws up names such as docs.google.com, goo.gl & ad.ly (provide URL shortening service only), torrent indexing websites, IP addresses, online file streaming websites, etc., at a cursory glance. Evidently, perfectly legitimate websites have been targeted by an ill conducted search and shoddily prepared list which may lead to blocking of legitimate content on account of no verification by the court. 471 websites out of 472 mentioned in the first list are second level domains and 23 websites have been listed twice.

2. Generic order which abysmally fails to identify specific infringing URLS

Out of the 472 websites (list provided in the order by MarkScan)-

471 are file streaming websites, video sharing websites, file lockers, URL shorteners, file storage websites; only one is a specific URL [http://www.24livestreamtv.com/brazil-2014-fifa-world-cup-football-%20%C2%A0%C2%A0live-streaming-online-t ].

The order calls for blocking of complete websites. This is in complete contradiction to the 2012 Madras High Court’s order in R K Productions v BSNL which held that only a particular URL where the infringing content is kept should be blocked, rather than the entire website. The Madras High Court order had also made it mandatory for the complainants to provide exact URLs where they find illegal content, such that ISPs could block only that content and not the entire site. MSM did not adhere to this and I have serious doubts if the defendants brought the distinguishing Madras High Court judgment to the attention of the bench. The entire situation is akin to MarkScan scamming MSM by providing their clients a dodgy list, and MSM scamming the court and the public at large.

3. Lack of Transparency – Different blocking messages on different ISPs

The message displayed uniformly on blocked websites was:

"This website/URL has been blocked until further notice either pursuant to court orders or on the directions issued by the Department of Telecommunications."

I observed that a few websites showed the message “Error 404 – File or Directory not found” without the blocking message (above) on the network provider Reliance, and same Error 404 with the blocking message on the network provider Airtel highlighting the non-transparent manner of adherence to the order. Further, both the messages do not indicate the end period of the block.

Legality of John Doe orders in Website Blocking

It is pertinent to reiterate the ‘misuse’ of John Doe orders to block websites in India. The judiciary has erred in applying the John Doe order to protect copyrightable content on the internet. While the R K Productions v BSNL case appears reasonable in terms of permitting blocking of only URL specific content, the application of John Doe order to block websites remains unfounded in law. Ananth Padmanabhan in a three part study (Part I, II and III) had earlier analysed the improper use of John Doe injunctions to block websites in India. The John Doe order was conceived by US courts to pre-emptively remedy the irreparable damages suffered by copyright holders on account of unidentified/unnamed infringers. The interim injunction allowed collection of evidence from infringers, who were identified later as certain defendants and the final relief was accordingly granted. The courts routinely advocated judicious use of the order, and ensured that the identified defendants were provided and informed of their right to apply to the court within twenty four hours for a review of the order and a right to claim damages in an appropriate case. Therefore, the John Doe order applied against primary infringers per se.

On the other hand, whilst extending this remedy in India the courts have unfortunately placed onus on the conduit i.e. the ISP to block websites. This is tantamount to providing final relief at the interim stage, since all content definitely gets blocked; however, this hardly helps in identifying the actual infringer on the internet. The court is prematurely doling out blocking remedies to the complaining party, which, legally speaking should be meted out only during the final disposition of the case after careful examination of the evidence available. Thus, the intent of a John Doe order is miserably lost in such an application. Moreover, this lends an arbitrary amount of power in the hands of intermediaries since ISPs may or may not choose to approach the court for directions to specifically block URLs which provide access to infringing content only.

For more details visit https://cis-india.org/internet-governance/blog/delhi-high-court-orders-blocking-of-websites-after-sony-complains-infringement-of-2014-fifa-world-cup-telecast-rights

India's Ratification of the Marrakesh Treaty Celebrated; Accessible Books Consortium Launched

nehaa — 2014-07-01T11:09:08Z

On Day 1 of the 28th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”), the WIPO organized an event to mark India’s ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, 2013 (“Marrakesh Treaty”), and to launch the Accessible Books Consortium (“ABC”).

India Becomes the First Country to Ratify the Marrakesh Treaty

Francis Gurry, Director General, WIPO said that the Marrakesh Treaty received 79 signatures in the twelve month period that the treaty was open for signatures. He further said that India’s ratification of the Marrakesh Treaty one year from its conclusion was a “WIPO record of sorts” and a “great example from a major country” of the importance attached to the Marrakesh Treaty.

Dilip Sinha, Ambassador and Permanent Representative of India to the United Nations in Geneva handed over India’s Instrument of Accession to the Marrakesh Treaty to Francis Gurry. Ambassador Sinha in his speech stressed on the importance of the Marrakesh Treaty to India and said that it helped that India had its amendments to its Copyright Act, 1957 in place, incorporating the provisions of the Marrakesh Treaty.

Maryanne Diamond, the Immediate Past President of the World Blind Union (“WBU”) congratulated India on its ratification. Calling it a country who showed “huge leadership” in negotiations of the Marrakesh Treaty, Ms. Diamond said that this ratification was extremely significant, with India being home to a large number of blind and print disabled people and a part of the Global South. Ms. Diamond urged other nations to follow India’s example and make it a priority to ratify the Marrakesh Treaty.

Jens Bammel, Secretary General, International Publishers Association (“IPA”) also congratulated India on its ratification of the Marrakesh Treaty and called on other member states to ratify it.

Accessible Books Consortium Launched

At the launch of the ABC, Mr. Gurry said that the Marrakesh Treaty was only the means to an end, where the end was books in the hands of print disabled and visually impaired persons across the world. “To make it operational,” said Mr. Gurry, “we need to have operational activities.” He said that the ABC was an operational activity which would “breathe life” into and “make operational” the legal framework provided by the Marrakesh Treaty.

What Does it Do?

Mr. Gurry said that the ABC aimed at achieving three things- first, capacity building; second, international book exchange and third, international book exchange.

Capacity Building- Mr. Gurry said that the ABC seeks to provide training on accessible book production and distribution. He thanked the Republic of Korea which has committed to providing financial assistance for training in respect of production of books in accessible formats.
International Book Exchange- Mr. Gurry said that this activity was an IT supported facility, namely, the TIGAR Service which has its origins in India. This would allow participating institutions to perform international searches of databases to find out if accessible formats of books are available.
Inclusive Publishing- Mr. Gurry said that at the end of the day, “books should be born accessible” and technology was creating the “promise of the realization of this aspiration.” Mr. Gurry said that the ABC would promote accessible publishing and to this end, had drawn up a charter of accessible publishing- Accessible Publishing Best Practice Guidelines for Publishers. Elsevier is the first publisher to have signed this charter.

India, WBU and IPA delighted

Praising the ABC, Ambassador Sinha called it an indicator of what multi-stakeholder cooperation needs to do. He said that the ABC would assist organizations such as the DAISY Forum of India in achieving the goal of access to books in accessible formats. Congratulating the WIPO for its efforts on this front, Ambassador Sinha said that this would help nations like India realize their goal of achieving the purposes of the Marrakesh Treaty. Ms. Diamond, representing the WBU congratulated Elsevier on signing the charter. Jens Bammel, on behalf of the IPA expressed concern for making books available in accessible formats for non English speakers. The ABC, he said, was a project initiated to “genuinely complement” the Marrakesh Treaty, and would create a global catalogue of accessible works, whether provided by libraries or by publishers. Expressing his delight that the ABC was being supported equally by all stakeholders, Mr. Bammel reached out to member states to support this initiative politically.

For more details visit https://cis-india.org/accessibility/blog/indias-ratification-of-marrakesh-treaty-celebrated

The Embodiment of the Right to Privacy within Domestic Legislation

tanvi — 2014-09-08T02:37:39Z

The Right to Privacy is a pivotal construct, essential to the actualization of justice, fairness and equity within any democratic society. It is an instrument used to secure the boundaries of an individual’s personal space, in his interaction with not only the rest of society but also the State.

It is within this realm of the social transaction that there exists an unending conflict between the Right to Privacy of an individual and the overbearing hand of the State as a facilitator of public interest. This right thus acts as a safety valve providing individuals with a sacred space within which their interactions in their personal capacity have no bearing on their conduct in the public sphere. The preservation of this space is incredibly important in order to ensure a willingness of individuals to engage and cooperate with the State in its fulfillment of public welfare measures that would otherwise be deemed as intrusive. It is in this regard that the Right to Privacy, one of the last sustaining rights that an individual holds against a larger State interest, ought to be protected by the law.

There are numerous dimensions to the idea of the Right to Privacy. These include but are not limited to the privacy of person, privacy of communication, personal privacy, transactional privacy, privacy of information and the privacy of personal data.

The Supreme Court of India has come to the rescue of individuals, time and again by construing "Right to Privacy" as an extension of the Fundamental Right to “Protection of Life and Personal liberty” under Article 21 of the Constitution. This has been reflected in the adjudicatory jurisprudence of the Constitutional courts in the country. However, there exists no Constitutional remedy to redress the breach of privacy by a nongovernmental actor, except under tortuous liability. The power and authority of public and private institutions to use an individual’s personal data for larger interests of national security or effectuation of socio-economic policies is still under extensive scrutiny. It is in this regard that we have compiled a number of sectoral legislations, regulating domains ranging from Finance and Telecom to Healthcare, Freedom of Expression, Consumer rights and Procedural codes. The highlighted provisions under each Act pertain to the mechanisms embodied within the legislation for the regulation of privacy within their respective sectors. Through this we aim to determine the threshold for permissible collection of confidential data and regulatory surveillance, provided a sufficient need for the same has been established. The determination of such a threshold is imperative to formulating a consistent and effective regime of privacy protection in India.

Click to download the below resources:

Legislations
Master Circulars
Finance and Privacy
Code of Civil Procedure and Code of Criminal Procedure
Freedom of Expression
Identity and Privacy
National Security and Privacy
Consumer Protection
Transparency and Privacy
Healthcare
Telecom

Case Laws
Code of Civil Procedure and Code of Criminal Procedure
Freedom of Expression
Identity and Privacy
National Security and Privacy
Consumer Protection
Transparency and Privacy
Healthcare
Telecom

For more details visit https://cis-india.org/internet-governance/blog/the-embodiment-of-right-to-privacy-within-domestic-legislation

Enabling Elections

nirmita — 2014-05-10T00:12:00Z

For making the 2014 General Elections in India participatory and accessible for voters with disabilities the Centre for Law and Policy Research and the Centre for Internet and Society have come up with a report. The report addresses the barriers that people with disabilities face during elections and recommends solutions for the same.

Executive Summary

The report examines three main areas:

The barriers that people with disabilities face at the time of elections.
The legal framework around this issue.
The measures which need to be taken to eliminate the barriers in the pre-voting phase, during voting phase and also post-voting phase, so as to enhance the participation of voters with disabilities.

Access to the public sphere and full political participation is a matter of right for persons with disabilities and the state is constitutionally mandated to enforce this right. The rights of voters with disabilities are examined under the constitutional provisions, the Representation of People’s Act 1951, the relevant directions of the Supreme Court and the international conventions. This report also considers international best practices while making recommendations, to the extent that they are suitable and practical in the Indian context.

This report looks at Electoral Participation in two dimensions:

“Pre-electoral Participation” and
“Actual Electoral Participation”

The report then goes on to make recommendations for enhancing accessibility in both these categories.

On Pre-electoral Participation, the report inter alia recommends the following:

Opportunities for people with disabilities to participate in public consultations.
Immediate outreach programs for higher voter registrations.
Making election material and candidate guides available in different formats such as large print, Braille and audio formats upon request so that voters can have full knowledge of the candidate they want to vote for.
Providing information for voters about locations which have special access, wheelchair facilities, technological assistance for visually impaired, etc.

On Actual Electoral Participation, we inter alia recommend the following:

Accessible polling sites.
Training election staff to be sensitive to diverse needs of voters.
Enabling privacy and independent voting by persons with disabilities.
Arranging for mobile polling booths.
Making EVM’s compatible and accessible such as by providing for Braille, large print.
Tactile buttons, 'sip and puff' and audio devices.

The report also recommends the need to monitor participation of voters with disabilities in the forthcoming elections.There is a need to collect data, surveys and studies in the pre-election, election and post-election phases.

Click here to download and read the full report (PDF, 4.5 MB)

For more details visit https://cis-india.org/accessibility/blog/enabling-elections

Institute for Internet & Society 2014, Pune

samantha — 2014-04-07T11:31:23Z

Last month, activists, journalists, researchers, and members of civil society came together at the 2014 Institute for Internet & Society in Pune, which was hosted by CIS and funded by the Ford Foundation. The Institute was a week long, in which participants heard from speakers from various backgrounds on issues arising out of the intersection of internet and society, such as intellectual property, freedom of expression, and accessibility, to name a few. Below is an official reporting summarizing sessions that took place.

Day One

February 11, 2014

Time	Detail
9.30 a.m. – 9.40 a.m.	Introduction: Sunil Abraham, Executive Director Centre for Internet and Society
10.00 a.m. – 10.15 a.m.	Introduction of Participants
10.15 a.m. – 12.00 p.m.	Internet Governance and Privacy: Sunil Abraham
12.00 p.m. – 12.30 p.m.	Tea-break
12.30 p.m. – 1.00 p.m.	Keynote: Bishakha Datta, Filmmaker and Activist, and Board Member, Wikimedia Foundation
1.00 p.m. – 2.00 p.m.	Lunch
1.30 p.m. – 3.00 p.m.	Participant Presentations
3.00 p.m. – 3.15 p.m.	Tea Break
3.15 p.m. – 4.45 p.m.	Histories, Bodies and Debates around the Internet: Nishant Shah, Director-Research, CIS

This year’s Internet Institute, hosted by the Centre for Internet & Society (CIS), kicked off in Pune to put a start to a week of learnings and discussions surrounding internet usage and its implications on individuals of society. Twenty two attendees from all over India attended this year, from backgrounds of activism, journalism, research and advocacy work.

Attendees were welcomed by Dr. Ravina Aggarwal, Program Officer for Media Rights & Access at the Ford Foundation, the event’s sponsor, who started off the day by introducing the Foundation’s initiatives in pursuit of bridging the digital divide by addressing issues of internet connectivity.

Internet Governance & Privacy, Sunil Abraham
The Institute’s first session was led by Sunil Abraham, Executive Director of CIS, and engaged with issues of internet governance and privacy with reference to four stories: 1) a dispute between tweeters from the US and those in South Africa over the use of hashtag #thingsdarkiesays, which is said not to be as racially derogatory as it is in the US; 2) Facebook’s contested policies on photos featuring users breastfeeding, 3) a lawsuit between Tata and Greenpeace over the organization’s use of Tata’s logo in a video game created for public criticism of their environmentally-degrading practices, and lastly, 4) the case of Savita Bhabhi, an Indian pornographic cartoon character which had been banned by India’s High Court and which had served as a landmark case in expanding the statutory laws for what is considered to be pornographic.

Each of these stories has one major thing in common: due to their nature of taking place over the internet, they are not confined to one geographic location and in turn, are addressed at the international level. The way by which an issue as such is to be addressed cuts across State policies and internet intermediary bodies to create quite a messy case in trying to determine who is at fault. Such complexity illustrates how challenging internet governance can be within today’s society that is no longer restricted to national or geographic boundaries.

Sunil also goes on in explaining the relationship between privacy, transparency, and power, summing it up in a simple formula; privacy protection should have a reverse relationship to power—the more the power, the less the privacy one should be entitled to. On the contrary, a direct correlation goes for power and transparency—the more the power, the more transparent a body should be. Instead of thinking about these concepts as a dichotomy, Sunil suggests to see them as absolute rights in themselves—instrumental in policies and necessary to address power imbalances.

The Web We Want, Bishakha Datta
The Institute’s kickoff was also joined by Indian filmmaker and activist, Bishakha Datta, who had delivered the keynote address. Bishakha bridged together notions of freedom of speech, surveillance, and accessibility, while introducing campaigns that work to create an open and universally accessible web, such as the Web We Want and Sexuality and Disability. Bishakha stresses how the internet as a space has altered how we experience societal constructs, which can be easily exhibited in how individuals experience Facebook in the occurrence of a death, for example. Bishakha initiated discussion among participants by posing questions such as, “what is our expectation of privacy in this brave new world?” and “what is the society we want?” to encompass the need to think of privacy in a new way with the coming of the endless possibilities the internet brings with it.

Histories, Bodies and Debates around the Internet, Nishant Shah
CIS Research Director, Nishant Shah, led a session examining internet as a technology more broadly, and our understandings of it in relation to the human body. Nishant proposes the idea that history is a form of technology, as well as time, itself, for which our understanding only comes into being with the aid of technologies of measurement. Although we are inclined to separate technology from the self, Nishant challenges this notion while suggesting that technology is very integral to being human, and defines a “cyborg” as someone who is very intimate with technology. In this way, we are all cyborgs. While making reference to several literary pieces, including Haraway’s Cyborg: Human, Animus, Technology; Kevin Warwick’s Living Cyborg; and Watt’s small world theory, Nishant challenges participants’ previous notions of how one is to understand technology in relation to oneself, as well as the networks we find ourselves implicated within.

Also brought forth by Nishant, was the fact that the internet as a technology has become integral to our identities, making us accessible (rather than us solely making the technology accessible) through online forms of documentation. This digital phenomenon in which we tend to document what we know and experience as a means of legitimizing it can be summed in the modern version of an old fable: “If a tree falls in a lonely forest, and nobody tweets it, has it fallen?”

Nishant refers to several case studies in which the use of online technologies has created a sense of an extension of the self and one’s personal space; which can then be subject to violation as one can be in the physical form, and to the same emotional and psychological effect—as illustrated within the 1993 occurrence referred to as “A Rape in Cyberspace.”

Attendee Participation
Participants remained engaged and enthusiastic for the duration of the day, bringing forth their personal expertise and experiences. Several participants presented their own research initiatives, which looked at issues women face as journalists and as portrayed by the media; amateur pornography without the consent of the woman; study findings on the understandings of symptoms of internet addiction; as well as studies looking at how students engage with college confession pages on Facebook.

Day Two

February 12, 2014

Time	Detail
9.30 a.m. – 11.00 a.m.	Wireless Technology: Ravikiran Annaswamy, CEO and Co-founder at Teritree Technologies
11.00 a.m. – 11.15 a.m.	Tea-break
11.15 a.m. – 12.45 p.m.	Wired Technology: Ravikiran Annaswamy
12.45 p.m. – 1.30 p.m.	Lunch
1.30 p.m. – 3.00 p.m.	Network, Threats and Securing Yourself: Kingsley John, Independent Consultant
3.00 p.m. – 3.15 p.m.	Tea Break
3.15 p.m. – 4.45 p.m.	Practical Lab: Kingsley John
4.45 p.m. – 5.00 p.m.	Wrap-up: Sunil Abraham

Day Two of the Institute entailed a more technical orientation to “internet & society” across sessions. Participants listened to speakers introduce concepts related to wired and wireless internet connectivity devices and their networks, along with the network of internet users and how one may secure him or herself while “online.”

Wireless & Wired Technology, Ravikiran Annaswamy
Senior industry practitioner, Ravikiran Annaswamy had aimed to enable the Institute’s participants to “understand the depth and omnipresent of telecom networks” that we find ourselves implicated within. Ravikiran went through the basics of these networks—including fixed line-, mobile-, IP-, and Next Generation IP-networks—as well as the technical structuring of wired and wireless broadband. Many participants found this session to be particularly enriching as their projects aimed to provide increased access to internet connectivity to marginalized areas in India, and had been without the know-how to go about it.

Network, Threats and Securing Yourself, Kinglsey John
An instructional session on how to protect oneself was given by Kingsley John, beginning with a lesson on IP Addresses—what they are and the different generations of such, and how IP addresses fit into a broader internet network. Following, Kingsley demonstrated and explained email encryption through the use of software, Kleopatra, and how it may be used to generate keys to encrypt emails through Thunderbird mail client.

Evening Discussion

A handful of participants voluntarily partook in an evening discussion, looking at the role of big players in the global internet network, such as Google and Facebook, how they collect and utilize users’ data, and what sorts of measures can be taken to minimize the collecting of such. Due to the widely varying backgrounds of interest among participants, those coming from this technical orientation towards the internet were able to inform their peers on relevant information and types of software that may be found useful related to minimizing one’s online presence.

Day Three

February 13, 2014

Time	Detail
9.30 a.m. – 11.00 a.m.	Free Software: Prof. G. Nagarjuna, Chairperson, Free Software Foundation
11.00 a.m. – 11.15 a.m.	Tea-break
11.15 a.m. – 12.45 p.m.	Open Data: Nisha Thompson, Independent Consultant
12.45 p.m. – 1.30 p.m.	Lunch
1.30 p.m. – 3.00 p.m.	Freedom of Expression: Bhairav Acharya, Advocate and Adviser, Centre for Internet and Society
3.00 p.m. – 3.15 p.m.	Tea-break
3.15 p.m. – 4.45 p.m.	Copyright: Nehaa Chaudhari, Program Officer, Centre for Internet and Society

The third day of the Internet Institute incorporated themes presented by speakers ranging from free software, to freedom of expression, to copyright.

Free Software, Prof. G. Nagarjuna
Chairman on the Board of Directors for the Free Software Foundation of India, Professor G. Nagarjuna shared with the Institute’s participants his personal expertise on software freedom. Nagarjuna mapped for us the network of concepts related to software freedom, beginning with the origins of the copyleft movement, and also touching upon the art of hacking, the open source movement, and what role software freedom plays in an interconnected world.

Nagarjuna looks at the free software movement as a political movement in the digital space highlighting the user’s freedoms associated to the use, distribution, and modification of software for the greater good for all. This is said to distinguish this movement from that of Open Source—a technical and more practical development-oriented movement. The free software movement is not set out to compromise the fundamental issues for the sake of being practical and in that sense, ubiquitous. Instead, its objective is “not to make everybody use the software, but to have them understand why they are using the software,” so that they may become “authentic citizens that can also resonate why they’re doing what they’re doing. We want them to understand the ethical and political aspects of doing so,” Nagarjuna says.

Open Data, Nisha Thompson
Participants learned from Nisha Thompson on Open Data; what it is, its benefits, and how it is involved in central government initiatives and policy, as well as civil society groups—generally for uses such as serving as evidence for decision making and accountability. Nisha explored challenges concerning the use of open data, such as those pertaining to privacy, legitimacy, copyright, and interoperability. The group looked at the India Water Portal as a case study, which makes accessible more than 300 water-related datasets already available in the public space for use from anything from sanitation and agriculture to climate change.

Freedom of Expression, Bhairav Acharya
Bhairav Acharya, a constitutional lawyer, traced the development of the freedom of speech and expression in India. Beginning with a conceptual understanding of censorship and the practice of censorship by the state, society, and the individual herself, Bhairav examines the limits traditionally placed by a nation-state on the right to free speech.

In India, modern free speech and censorship law was first formulated by the colonial British government, which broadly imported the common law to India. However, the colonial state also yielded to the religious and communitarian sensitivities of its subjects, resulting in a continuing close link between communalism and free speech in India today. After Independence, the post-colonial Indian state carried forward Raj censorship, but tweaked it to serve to a nation-building and developmental agenda. Nation-building and nationalism are centrifugal forces that attempt to construct a homogenous 'mainstream'; voices from the margins of this mainstream (the geographical, ethnic, and religious peripheries) and of the marginalised within the mainstream (the poor and disadvantaged), are censored.

Within this narrative, Bhairav located and explained the evolution of the law relating to press censorship, defamation, obscenity, and contempt of court. Free speech law applies equally online. Broadly, censorship on the internet must survive the same constitutional scrutiny that is applied to offline censorship; but, as technology develops, the law must innovate.

Copyright, Nehaa Chaudhari
CIS Programme Officer, Nehaa Chaudhari examined the concept of Copyright as an intellectual property right in discussing its fundamentals, purpose and origins, and Copyright’s intersection with the internet. Nehaa also explained the different exceptions to Copyright, along with its alternatives, such as opposing intellectual property protection regimes, including the Creative Commons and Copyleft. Within this session, Nehaa also introduced several cases in which Copyright came into play with the use of the internet, including Hunter Moore’s “Is Anyone Up?” website, which had showcased pornographic pictures obtained by submission bringing rise to the phenomenon of “revenge porn.” Instances as such blur the lines of what is commonly referred to as intellectual property, and what specific requirements enables one to own the rights to such.

Day Four

February 14, 2014

Time	Detail
9.30 a.m. – 11.00 a.m.	E-Accessibility and Inclusion: Prashant Naik, Union Bank
11.00 a.m. – 11.15 a.m.	Tea-break
11.15 a.m. – 12.45 p.m.	Patents: Nehaa Chaudhari
12.45 p.m. – 1.30 p.m.	Lunch
1.30 p.m. – 2.00 p.m.	Fieldwork Assignment

Day Four of the Internet Institute introduced concepts of eAccessibilty and Inclusion on the internet for persons with disabilities, along with patents as an intellectual property right. Participants were also assigned a fieldwork exercise as a hands-on activity in which they were to employ what they’ve learned to initiate conversation with individuals in public spaces and collect primary data while doing so.

eAccessibility and Inclusion, Prashant Naik

Prashant Naik started off the day with his session on E-Accessibility and Inclusion. Prashant illustrated the importance of accessibility and what is meant by the term. Participants learned of assistive technologies for different disability types and how to create more accessible word and PDF documents, as well as web pages for users. Prashant demonstrated to participants what it is like to use a computer as a visually impaired individual, which provided for an enriching experience.

Patents, Nehaa Chaudhari
Nehaa Chaudhari led a second session at the Internet Institute on intellectual property rights—this one looking at patents particularly and their role within statutory law. Nehaa traced the historical origins of patents before examining the fundamentals of them, and addresses the questions, “Why have patents? And is the present system working for everyone?” Nehaa also introduced notions of the Commons along with the Anticommons, and perspectives within the debate around software patents, as well as different means by which the law can address the exploitation of patents or “patent thickets”—such as through patent pools or compulsory licensing.

Fieldwork Assignment, Groupwork
Participants were split into groups and required to carry out a mini fieldwork assignment in approaching individuals in varying public spaces in Pune in attempts to collect primary data. Questions asked to individuals were to be devised by the group, so long as they pertained to themes examined within the Internet Institute. Areas visited by groups included the Pune Central Mall, MG Road, and FC Road.

Day Five

February 15, 2014

Time	Detail
9.30 a.m. – 11.00 a.m.	E-Governance: Manu Srivastav, Vice President, eGovernments Foundation
11.00 a.m. – 11.15 a.m.	Tea-break
11.15 a.m. – 12.45 p.m.	Market Concerns: Payal Malik, Economic Adviser, Competition Commission of India
12.45 p.m. – 1.30 p.m.	Lunch
1.30 p.m. – 3.00 p.m.	Digital Natives: Nishant Shah
3.00 p.m. – 3.15 p.m.	Tea-break
3.15 p.m. – 4.45 p.m.	Fieldwork Presentations

Day Five of the Internet Institute brought with it sessions related to themes of e-governance, market concerns of telecommunications, and so called “Digital Natives.”

eGovernance, Manu Srivastava
Vice President of the eGovernments Foundation, Manu Srivastava led a session on eGovernance—the utilization of the internet as a means of delivering government services communicating with citizens, businesses, and members of government. Manu examined the complexities of the eGovernance and barriers to implementation of eGovernance initiatives. Within discussion, participants examined the nuanced relationship between the government and citizens with the incorporation of other governing bodies in an eGovernance system, as well as new spaces for corruption to take place.

Market Concerns, Payal Malik
Payal Malik, Advisor of the Economics Division of the Competition Commission of India shared her knowledge on market concerns of the telecommunications industry, and exclaimed the importance of competition issues in such an industry as a tool to create greater good for a greater number of people. She demonstrated this importance by stating that affordability as a product of increased access can only be possible once there is enough investment, which generally only happens in a competitive market. In this way, we must set the conditions to make competition possible, as a tool to achieve certain objectives. Payal also demonstrated the economic benefits of telecommunications by stating that for every 10% increase in broadband penetration, increase in GDP of 1.3%. She also examined the broadband ecosystem in India and touched upon future possibilities of increased broadband penetration, such as for formers and the education sector.

Digital Natives, Nishant Shah
Nishant Shah shed some light on one of the areas that the Centre for Internet & Society looks at within their research scope, this being the “Digital Native.” As referred to by Nishant, the Digital Native is not to categorize a specific type of internet user, but can be said for simply any person who is performing a digital action, while doing away with this false dichotomy of age, location, and geography.

Nishant examines varying case studies in which “the digital is empowering natives to not merely be benefactors of change, but agents of change,” from the Blank Noise Project’s “I NEVER Ask for it…” campaign in efforts to rethink sexual violence, to Matt Harding’s foolish dancing with groups of individuals from all over the world.

As occurrences in the digital realm, however, these often political expressions may be rewritten by the network when picked up as a growing phenomenon, in order to make it accessible to online consumers by the masses. In doing so, the expression is removed from its political context and is presented in the form of nothing more than a fad. For this reason, Nishant stresses the need to become aware of the potential of the internet in becoming an “echo-chamber”—in which forms of expression are amplified and mimicked, resulting in a restructuring of the dynamics surrounding the subject—whether it be videos of boys lipsyncing to Backstreet Boys in their dorm room going viral, or a strong and malicious movement to punish the Chinese girl who had taken a video of her heinously and wickedly killing a kitten after locating her using the Human Flesh Search Engine.

Fieldwork Presentations, Groupwork

To end off the day, participant groups presented findings collated from the prior evening’s fieldwork exercise, in which they were to ask strangers in various public places of Pune questions pertaining to themes looked at from within this year’s Institute. Participants were divided into four groups and visited Pune’s FC Road, Mahatma Gandhi Road, and Central Mall.

Groups found that the majority of those interviews primarily accessed the phone via the mobile. There was also a common weariness of using the internet and concern for one’s privacy while doing so, especially with uploading photos to Facebook and online financial transactions. People were also generally concerned about using cyber cafes for fear of one’s accounts being hacked. Generally people suspected that so long as conversations are “private” (i.e. in one’s Facebook inbox), so too are they secure. Just as well, those interviewed shared a sense of security with the use of a password.

Day Six

February 16, 2014

Time	Detail
9.30 a.m. – 11.00 a.m.	Wikipedia: Dr. Abhijeet Safai
11.00 a.m. – 11.15 a.m.	Tea-break
11.15 a.m. – 12.45 p.m.	Open Access: Muthu Madhan (TBC)
12.45 p.m. – 1.30 p.m.	Lunch
1.30 p.m. – 3.00 p.m.	Case Studies Groupwork
3.00 p.m. – 3.15 p.m.	Tea-break
3.15 p.m. – 4.45 p.m.	Case Studies Presentations

As the Institute came closer to its end, participants got the opportunity to hear from speakers on topics pertaining the Wikipedia editing in addition to Open Access to scholarly literature. Participants also worked together in groups to examine specific case studies referenced in previous sessions, and then presented their conclusions.

Wikipedia, Dr. Abhijeet Safai
The Institute was joined by Medical Officer of Clinical Research at Pune’s Symbiosis Centre of Health Care, Dr. Abhijeet Safai, who led a session on Wikipedia. Having edited over 3700 Wikipedia articles, Dr. Abhijeet was able to bring forth his expertise and familiarity in editing Wikipedia to participants so that they would be able to do the same. Introduced within this session were Wikipedia’s different fundamental pillars and codes of conducts to be complied with by all contributors, along with different features and components of Wikipedia articles that one should be aware of when contributing, such as how to cite sources and discuss the contents of an article with other contributors.

Open Access, Muthu Madhan
Muthu Madhan joined the Internet Institute while speaking on Open Access (OA) to scholarly literature. Within his session, Muthu examined the historical context within which the scholarly journal had arisen and how the idea of Open Access began within this space. The presence of Open Access in India and other developing nations was also examined in this session, and the concept of Open Data, introduced.

Case Studies, Groupworks

Participants were split up into groups and assigned particular case studies looked at briefly in previous sessions. Case studies included #thingsdarkiessay, a once trending Twitter hashtag in South Africa which had offended many Americans for its use of “darkie” as a derogatory term; the literary novel, The Hindus, which offers an alternative narrative of Hindu history had been banned in India for obscenity; a case in which several users’ avatars had been controlled by another in a virtual community and forced to perform sexual acts, referred to as A Rape Happened in Cyber Space; and lastly, a pornographic submission website, Is Anyone Up?, for which content was largely derived from “revenge porn.” Each group then presented on the various perspectives surrounding the issue at hand.

The Cyborg, Nishant Shah
Nishant Shah led an off-agenda session in the evening looking more closely at the notion of the human cyborg. Nishant deconstructs humanity’s relationship to technology, in suggesting that we “think of the human as produced with the technologies… not who produces technology.” Nishant explores the Digital Native as an attained identity for those who, because of technology, restructure and reinvent his or her environment—offline as well as online. Among other ideas shared, Nishant refers to works by Haraway on the human cyborg in illustrating our dependency on technology and our need to care for these technologies we depend on.

Day Seven

February 17, 2014

Time	Detail
9.30 a.m. – 11.00 a.m.	Internet Activism: Laura Stein, Associate Professor, University of Texas and Fulbright Fellow
11.00 a.m. – 11.15 a.m.	Tea-break
11.15 a.m. – 12.45 p.m.	Domestic and International Bodies: Chinmayi Arun, Research Director
12.45 p.m. – 1.30 p.m.	Lunch
1.30 p.m. – 3.00 p.m.	Participant Presentations
3.00 p.m. – 3.15 p.m.	Tea-break
3.15 p.m. – 4.45 p.m.	Hot Question Challenge

The last day of the week-long Internet Institute examined concepts of Internet Activism and Domestic and International Bodies. Some participants led presentations on topics of personal familiarity, before a final wrap-up exercise, calling upon individuals to share any new formulations resulting from the Institute.

Internet Activism, Laura Stein

Associate Professor from the University of Texas, Laura Stein, spoke on activism on the internet. Laura examined some grassroots organizations and movements taking place on the online and the benefits that the internet brings in facilitating their impact, such as its associated low costs, accessibility and possibility for anonymity. Despite the positive effects catalyzed by the internet, Laura stresses that the “laying field is still unequal, and movements are not simply transformed by technology.” Some of the websites exemplifying online activism that were examined within this session includes the It Gets Better Project, which aims to give hope to LGBT youth facing harassment, and the national election watch by the Association for Democratic Reforms. Additionally, Laura spoke on public communication policy, comparing that of the US and India, and how this area of policy may influence media content and practice.

Domestic and International Bodies, Chinmayi Arun
As the Internet Institute’s final speaker, Research Director for Communication Governance at National Law University , Chinmayi Arun, explores the network of factors that affect one’s behavior on the internet—these including: social norms, the law, the markets, and architecture. In referring to Lawrence Lessig’s pathetic dot theory, Chinmayi illustrates how individual’s—the pathetic dots in question—are functions of the interactions of these factors, and in this sense, regulated, and stresses the essential need to understand the system, in order to effectively change the dynamics within it. It is worth noting that not all pathetic dots are equal, and Google’s dot, for example, will be drastically bigger than a single user’s, having more leveraging power within the network of internet bodies. Also demonstrated, is the fact that we must acknowledge the need for regulation by the law to some extent, otherwise, the internet would be a black box where anything goes, putting one’s security at risk of violation.

Hot Question Challenge
The very last exercise of the Institute entailed participants asking each other questions on demand, relating back to different themes looked at within the last week. Participants had the chance, here, to bridge together concepts across sessions, as well as formulate their own opinions, while posing questions to others that they, themselves, were still curious about.

For more details visit https://cis-india.org/telecom/blog/institute-for-internet-society-2014-pune

Can Judges Order ISPs to Block Websites for Copyright Infringement? (Part 3)

ananth — 2014-02-14T05:13:36Z

In a three-part study, Ananth Padmanabhan examines the "John Doe" orders that courts have passed against ISPs, which entertainment companies have used to block dozens, if not hundreds, of websites. In this, the third and concluding part, he looks at the Indian law in the Copyright Act and the Information Technology Act, and concludes that both those laws restrain courts and private companies from ordering an ISP to block a website for copyright infringement.

In the third part of his study, Ananth Padmanabhan looks into the fair use provisions recently introduced in respect of mere conduit intermediaries by the Copyright (Amendment) Act, 2012, and concludes that there is no scope for any general, or specific, access blocking orders at the behest of the plaintiff in a civil suit, in India. He also argues that the Information Technology Act, 2000 read with the Information Technology (Intermediaries Guidelines) Rules, 2011 do not in any manner permit the Government to override the provisions of the Copyright Act, 1957 (as amended) while facilitating the denial of access to websites on grounds of copyright infringement, because the Copyright Act, 1957, is a complete code by itself.

In 2010, the controversial Copyright (Amendment) Bill came up for deliberation before the Parliamentary Standing Committee on Human Resource Development headed by Mr. Oscar Fernandes. While a major part of the discussion on this amendment revolved around the altered royalty structure and rights allocation between music composers and lyricists on the one hand and film producers on the other, it can be safely stated that this is the most significant amendment to the Copyright Act, 1957 for more than this one reason. The amendment seeks to reform the Copyright Board, bring in a scheme of statutory licenses, expand the scope of performers’ rights and introduce anti-circumvention measures to check copyright piracy. As part of its ambitious objective, the amendment also attempts a new fair use model to protect intermediaries and file-sharing websites.

The Copyright (Amendment) Act, 2012, which gives expression to this fair use model through Sections 52(1)(b) and (c), reads thus:

52. Certain acts not to be infringement of copyright. - (1) The following acts shall not constitute an infringement of copyright, namely:

(a) to (ad) - *****

(b) the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public;

(c) transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy:

Provided that if the person responsible for the storage of the copy has received a written complaint from the owner of copyright in the work, complaining that such transient or incidental storage is an infringement, such person responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he receives an order from the competent court refraining from facilitating access and in case no such order is received before the expiry of such period of twenty-one days, he may continue to provide the facility of such access;

From a plain reading, it is clear that two important exceptions are carved out: one, in respect of the technical process of electronic transmission and the other, in respect of providing electronic links, access or integration. The material distinction between these exceptions is the presence of a take-down proviso in respect of the latter kind of activity, ie. when providing electronic links, access or integration. This window of opportunity is not provided to the copyright owner when the third party is an ISP involved in the pure technical process of electronic transmission of data.

In R.K. Productions, the court was not informed of the introduction of these provisions vide the Copyright (Amendment) Act, 2012, despite the hearing happening on a date subsequent to the amendment coming into force. This probably influenced the outcome as well, since the court held that ISPs were liable to block access to infringing content, once the specific webpage was brought to the notice of the concerned ISP. Newly introduced Section 52(1)(b) however makes it abundantly clear that ISPs cannot, in any manner, be held liable when they are acting as mere conduit pipes for the transmission of information. This legal position is also materially different from jurisdictions such as the United Kingdom where, the ISPs though not liable for copyright infringement, are statutorily mandated to lend all possible assistance such as take-down or blocking of access upon notice of infringement being furnished to them. This dichotomy between liability for infringement on the one hand and a general duty to assist in the prevention of infringement on the other is explained clearly by the Chancery Division in Twentieth Century Fox Film Corporation v. British Telecommunications Plc.[1]

In Newzbin2, the Chancery Division took note of the safe harbour provisions created by the E-Commerce Directive,[2] particularly Articles 12 to 14 that dealt with acting as a “mere conduit”, caching and hosting respectively. The interesting feature with the “mere conduit” exception, which in all other respects is akin to the exception contained in Section 52(1)(b) of the Copyright Act, 1957, is the additional presence of Article 12(3). This provision clarifies that the “mere conduit” exception shall not stand in the way of a court or administrative authority requiring the service provider to terminate or prevent an infringement. Article 18 of this Directive also casts an obligation upon Member States to ensure that court actions available under national law permit the rapid adoption of measures, including interim measures, designed to terminate any alleged infringement and to prevent any further impairment of the interests involved. Similarly, the court looked into the Information Society Directive,[3]

Article 8(3) of which provides that “Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.” This Directive was transposed into the domestic law in UK by the Copyright and Related Rights Regulations 2003, SI 2003/2498, resulting in the insertion of Section 97A in the Copyright, Designs and Patents Act 1988. This provision empowers the court to grant an injunction against a service provider who has actual knowledge of another person using their service to infringe copyright, such as where the service provider is given sufficient notice of the infringement. Finally, the Chancery Division also took note of the Enforcement Directive,[4]

Article 11 of which provided that Member States shall ensure that copyright owners are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right. This entire legislative scheme compelled the court in Newzbin2 to conclude that an order of injunction could be granted against ISPs who are “mere conduits”, restraining them from providing access to websites that indulged in mass copyright infringement. The court reasoned that the language used in Section 97A did not require knowledge of any particular infringement but only a more general kind of knowledge about certain persons using the ISPs’ services to infringe copyright. Thus, it is seen that in the United Kingdom, though a “mere conduit” activity is not infringement at all, the concerned ISP can be directed by the court to block access to a website that hosts infringing content on the basis of the above legislative scheme. The enquiry should therefore be directed towards whether India has a similar scheme for copyright enforcement.

The Information Technology Act – An Inapplicable Scheme for Website Blocking

The Information Technology Act, 2000[5]read with certain recently framed guidelines provides for a duty that could be thrust upon even “mere conduit” ISPs to disable access to copyrighted works. This is due to the presence of Section 79(2)(c) of this Act, which makes it clear that an intermediary shall be exempt from liability only where the intermediary observes due diligence as well as complies with the other guidelines framed by the Central Government in this behalf. Moreover, Section 79(3) provides that the intermediary shall not be entitled to the benefit of the exemption in Section 79(1) in a situation where the intermediary, upon receiving actual knowledge that any information, data, or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit an unlawful act, fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner. In pursuance of Section 79(2)(c), the Central Government has also framed the Information Technology (Intermediaries Guidelines) Rules, 2011, which came into effect on 11.04.2011. Rule 4 of these Rules, when read along with Rule 2(d), casts obligation on an intermediary on whose computer system, copyright infringing content has been stored, hosted or published, to disable such information within thirty six hours from when it is brought to actual knowledge of the existence of such content by any affected person.

One way of understanding and interpreting in harmonious fashion, the provisions of the IT Act and the Rules therein and the recent amendments to the Copyright Act, is to contend that the issue of infringement of copyright by “mere conduit” ISPs is governed by Section 52(1)(b), which completely absolves them of any liability, while that of enforcement of copyright through the medium of such ISPs is governed by the IT Act. This bifurcation suffers from the difficulty that Section 79 of the IT Act is not an enforcement provision. It is a provision meant to exempt intermediaries from certain kinds of liability, in the same way as Section 52 of the Copyright Act. This provision, read with Section 81, makes it clear that the IT Act does not speak to liability for copyright infringement. From this, it has to necessarily follow that all issues pertaining to liability for such infringement have to be decided by the provisions of the Copyright Act. Therefore, the scheme in the IT Act read with the Intermediaries Guidelines Rules cannot confer additional liability for copyright infringement on ISPs where the Copyright Act exempts them from liability. More to the point, the intermediary cannot be liable for copyright infringement in the event of non-compliance with Section 79(3) or Rule 4 of the Intermediaries Guidelines Rules read with Section 79(1)(c) of the IT Act. Rule 4 of the Intermediaries Guidelines Rules, 2011, to the extent that it renders intermediaries outside the protective ambit of Section 79(1) upon failure to disable access to copyrighted content, is of no relevance as “mere conduits” have already been exempted from liability under Section 52(1)(b). Moreover, since these provisions in the IT Act do not deal with enforcement measures such as injunction orders from the court to disable access to infringing content in particular or infringing websites in general, it would be wrong to contend that the scheme in India is similar to the one in the United Kingdom where the issue of infringement has been divorced from that of enforcement.

To conclude, Section 52(1)(b) is a blanket “mere conduit” exemption from liability for copyright infringement that stands uninfluenced by the presence of Section 79 of the IT Act or the Intermediaries Guidelines Rules. In the absence of a legislative scheme for enforcement in India akin to Section 97A of the UK Copyright, Designs and Patents Act 1988, Indian Courts cannot grant an injunction directing such “mere conduit” ISPs to block access to websites in general or infringing content in particular and any such action is not even maintainable in law post the insertion of Section 52(1)(b). The decision to the contrary in the R.K.Productions case is incorrect.

[1]. [2011] EWHC 1981 (Ch.). Hereinafter referred to as Newzbin2.

[2]. European Parliament and Council Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (8 June 2000). This Directive was transposed into the domestic law in UK by the Electronic Commerce (EC Directive) Regulations 2002, SI 2002/2013.

[3]. European Parliament and Council Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (22 May 2001).

[4]. European Parliament and Council Directive 2004/48/EC on the enforcement of intellectual property rights (29 April 2004). This Directive was transposed into the UK domestic law primarily by the Intellectual Property (Enforcement, etc.) Regulations 2006, SI 2006/1028.

[5]. Hereinafter referred to as the IT Act.

For more details visit https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-3

Can Judges Order ISPs to Block Websites for Copyright Infringement? (Part 2)

ananth — 2014-03-06T16:48:18Z

In a three-part study, Ananth Padmanabhan examines the "John Doe" orders that courts have passed against ISPs, which entertainment companies have used to block dozens, if not hundreds, of websites. In this, the second part, he looks at the law laid down by the U.S. Supreme Court and the Delhi High Court on secondary and contributory copyright infringement, and finds that those wouldn't allow Indian courts to grant "John Doe" orders against ISPs.

In the second part of his study, Ananth Padmanabhan proceeds to examine applying a general theory of secondary or contributory copyright infringement against ISPs. He traces the basis for holding a third party liable as a contributory by closely examining the decisions of the U.S. Supreme Court in Sony Corp. v Universal City Studios[1] and MGM Studios, Inc. v Grokster, Ltd.[2] and concludes that this basis does not hold good in the case of a mere conduit intermediary such as an ISP.

[1]. 464 U.S. 417 (1984). Hereinafter referred to as Betamax.

[2]. 545 U.S. 913 (2005). Hereinafter referred to as Grokster.

Primary and Secondary Infringement

Liability for copyright infringement can either be primary or secondary in character. In the case of ISPs, liability as primary infringers does not arise at all, and it is in their capacity as conduit pipes facilitating the transmission of information that they could be held secondarily liable. Even in such cases, the contention of copyright owners is that once the ISP is notified of infringing content, it has the primary responsibility of preventing access to such content. This contention is essentially rooted in a theory of secondary infringement based on knowledge and awareness, and the means to prevent further infringement.

The controversy around a suitable model of secondary infringement is reflected in two judicial pronouncements – separated by a gap of more than two decades – delivered by the U.S. Supreme Court. In Sony Corp. v Universal City Studios,[3] the US Supreme Court held that the manufacturers of home video recording devices known in the market as Betamax would not be liable to copyright owners for secondary infringement since the technology was capable of substantially non-infringing and legitimate purposes. The U.S. Supreme Court even observed that these time-shifting devices would actually enhance television viewership and hence find favour with majority of the copyright holders too. The majority did concede that in an appropriate situation, liability for secondary infringement of copyright could well arise. In the words of the Court, “vicarious liability is imposed in virtually all areas of the law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another”. However, if vicarious liability had to be imposed on the manufactures of the time-shifting devices, it had to rest on the fact that they sold equipment with constructive knowledge of the fact that their customers may use that equipment to make unauthorized copies of copyrighted material. In the view of the Court, there was no precedent in the law of copyright for the imposition of vicarious liability merely on the showing of such fact.

Notes of dissent were struck by Justice Blackmun, who wrote an opinion on behalf of himself and three other judges. The learned Judge noted that there was no private use exemption in favour of making of copies of a copyrighted work and hence, unauthorised time-shifting would amount to copyright infringement. He also concluded that there was no fair use in such activity that would exempt it from the purview of infringement. The dissent held the manufacturer liable as a contributory infringer and reasoned that the test for contributory infringement would only be whether the contributory infringer had reason to know or believe that infringement would take place and not whether he actually knew of the same. Off-the-air recording was not only a foreseeable use for the Betamax, but also its intended use, for which Sony would be liable for copyright infringement.

This dissent has considerably influenced the seemingly contrarian position taken by the majority in the subsequent decision, MGM Studios, Inc. v Grokster, Ltd.[4] This case called into question the liability of websites that facilitated peer-to-peer (P2P) file-sharing. Re-formulating the test for copyright infringement, the US Supreme Court held that ‘one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties’. In re-drawing the boundaries of contributory infringement, the Court observed that contributory infringement is committed by any person who intentionally induces or encourages direct infringement, and vicarious infringement is committed by those who profit from direct infringement while declining to exercise their right to limit or stop it. When an article of commerce was good for nothing else but infringement, there was no legitimate public interest in its unlicensed availability and there would be no injustice in presuming or imputing intent to infringe in such cases. This doctrine would at the same time absolve the equivocal conduct of selling an item with substantial lawful as well as unlawful uses and would limit the liability to instances of more acute fault than the mere understanding that some of the products shall be misused, thus ensuring that innovation and commerce are not unreasonably hindered.

The Court distinguished the case at hand from Betamax, and noted that there was evidence here of active steps taken by the respondents to encourage direct copyright infringement, such as advertising an infringing use or instructing how to engage in an infringing use. This evidence revealed an affirmative intent that the product be used to infringe, and an active encouragement of infringement. Without reversing the decision in Betamax, but holding that it was misinterpreted by the lower court, the Court observed that Betamax was not an authority for the proposition that whenever a product was capable of substantial lawful use, the producer could never be held liable as a contributory for the use of such product for infringing activity by third parties. In the view of the Court, Betamax did not displace other theories of secondary liability. This other theory of secondary liability applicable to the case at hand was held to be the inducement rule, as per which any person who distributed a device with the object of promoting its use to infringe copyright, as evidenced by clear expression or other affirmative steps taken to foster infringement, would be liable for the resulting acts of infringement by third parties. However, the Court clarified that mere knowledge of infringing potential or of actual infringing uses would not be enough under this rule to subject a distributor to liability. Similarly, ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability etc. would not by themselves attract the operation of this rule. The inducement rule, instead, premised liability on purposeful, culpable expression and conduct, and thus did nothing to compromise legitimate commerce or discourage innovation having a lawful promise.

These seemingly divergent views on secondary infringement expressed by the U.S. Supreme Court are of significant relevance for India, due to the peculiar language used in the Indian Copyright Act, 1957.[4]

Section 51 of the Act, which defines infringement, bifurcates the two types of infringement – ie. primary and secondary infringement – without indicating so in as many words. While Section 51(a)(i) speaks to primary infringers, 51(a)(ii) and 51(b) renders certain conduct to be secondary infringement. Even here, there is an important distinction between 51(a)(ii) and 51(b). The former exempts the alleged infringer from liability if he could establish that he was not aware and had no reasonable ground for believing that the communication to the public, facilitated through the use of his “place”, would amount to copyright infringement. The latter on the other hand permits no such exception. Thus, any person, who makes for sale or hire, or by way of trade displays or offers for sale or hire, or distributes for the purpose of trade, or publicly exhibits by way of trade, or imports into India, any infringing copies of a work, shall be liable for infringement, without any specific mens rea required to attract such liability. It is in the context of the former provision, ie. 51(a)(ii) that the liability of certain file-sharing websites for copyright infringement has arisen.[5]

Mere Conduit ISPs – Secondary Infringement Absent

In MySpace, the Delhi High Court examined the liability for secondary infringement on the part of a website that provides a platform for file-sharing. While holding the website liable, the Single Judge considered material certain facts such as the revenue model of the defendant, which depended largely on advertisements displayed on the webpages, and automatically generated advertisements that would come up for a few seconds before the infringing video clips started playing. Shockingly, the Court even considered relevant the fact that the defendant did provide for safeguards such as hash block filters, take down stay down functionality, and rights management tools operational through fingerprinting technology, to prevent or curb infringing activities being carried on in their website. This, in the view of the Court, made it evident that the defendant had a reasonable apprehension or belief that the acts which were being carried on in the website could infringe someone else’s copyright including that of the plaintiff. The logic employed by the Court to attribute liability for secondary infringement on file-sharing websites is befuddling and reveals complete disregard for the degree of regulatory authority available on the internet even where the space, i.e., the website, is supposedly “under the control” of a person. However, a critical examination of this decision is not relevant in understanding the liability of mere conduit ISPs. This is for the reason that none of the factual considerations relied on by the Single Judge to justify imposition of liability on a file-sharing website under Section 51(a)(ii) arise when the defendant is an ISP that only provides the path for content-neutral transmission of data.

This was completely ignored by the Madras High Court in R.K.Productions v. B.S.N.L.,[6] where the producers of the Tamil film “3”, which enjoyed considerable pre-release buzz due to its song “Kolaveri Di”, sought an omnibus order of injunction against all websites that host torrents or links facilitating access to, or download of, this film. Though this was worded as a John Doe plaint by branding the infringers as unknown administrators of different torrent sites and so on, the real idea was to look to the resources and wherewithal of the known defendants, ie. the ISPs, to block access to the content hosted by the unknown defendants.

This prompted the ISPs to file applications under Or. VII, Rule 11 of the Civil Procedure Code, seeking rejection of the plaint on the ground that the suit against them was barred by law. The Single Judge of the Madras High Court dismissed these applications for rejection of the plaint, after accepting the contention that the ISPs are necessary parties to the suit as the act of piracy occurs through the channel or network provided by them. The High Court heavily, and incorrectly, relied on MySpace without appreciating the distinction between a mere conduit ISP and a file-sharing website such as MySpace or YouTube, as regards their respective roles and responsibilities, the differing degrees of regulatory control over content enjoyed by them, and most importantly, the recognition and formalisation of these distinctions in the Copyright Act, 1957, vide the Copyright (Amendment) Act, 2012.

[3]. 464 U.S. 417 (1984). Hereinafter referred to as Betamax.

[4]. 545 U.S. 913 (2005). Hereinafter referred to as Grokster.

[5]. Hereinafter the Act.

[6]. Super Cassette Industries Ltd. v MySpace Inc., MIPR 2011 (2) 303 (hereinafter referred to as MySpace). This decision of the Delhi High Court has been rightly criticised. See http://cis-india.org/a2k/blog/super-cassettes-v-my-space (last accessed on 24.03.2013).

For more details visit https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-2

Centre for Internet and Society

Availability and Accessibility of Government Information in Public Domain

White Paper on RTI and Privacy V1.2

Introduction

The Privacy Exception

Section 8(1)(j) in Practice

Conclusion

List of References

Guidelines for Examination of Computer Related Inventions: Mapping the Stakeholders' Response

Big Data and Positive Social Change in the Developing World: A White Paper for Practitioners and Researchers

Summary

Expanding the World of Telugu Wikipedia – CIS-A2K and ALC join hands

NIE Steps in to Grow Konkani Wikipedia

Privacy in Healthcare: Policy Guide

Introduction

Purpose

Importance

Methodology

The Embodiment of Privacy Regulation within Domestic Legislation

Policy and Regulations

Case Law

Regulation of Privacy in Government and Private Hospitals and Diagnostic Laborataries

(i) Notice

(ii) Choice and Consent

(iii) Collection Limitation

(iv) Purpose Limitation

(v) Access and Correction

(vi) Disclosure of Information

(vii) Security

(viii) Openness

(ix) Accountability

International Best Practices and Recommendations

Key Recommendations

Conclusions

University of Mysore Re-releases Kannada Vishwakosha (Encyclopaedia) under Creative Commons Free License

Media Coverage

Delhi High Court Orders Blocking of Websites after Sony Complains Infringement of 2014 FIFA World Cup Telecast Rights

Background

Where the Court went Wrong

Legality of John Doe orders in Website Blocking

India's Ratification of the Marrakesh Treaty Celebrated; Accessible Books Consortium Launched

India Becomes the First Country to Ratify the Marrakesh Treaty

Accessible Books Consortium Launched

What Does it Do?

India, WBU and IPA delighted

The Embodiment of the Right to Privacy within Domestic Legislation

Click to download the below resources:

Enabling Elections

Executive Summary

Institute for Internet & Society 2014, Pune

Day One

Day Two

Day Three

Day Four

Day Five

Day Six

Day Seven

Can Judges Order ISPs to Block Websites for Copyright Infringement? (Part 3)

Fair Use Provisions Introduced by the Copyright (Amendment) Act, 2012

The Information Technology Act – An Inapplicable Scheme for Website Blocking

Can Judges Order ISPs to Block Websites for Copyright Infringement? (Part 2)

Primary and Secondary Infringement

Mere Conduit ISPs – Secondary Infringement Absent