Right to Privacy – The Law Blog

Right to be Forgotten: A Forgotten Part of Right to Privacy

Posted on 7 Nov 20187 Nov 2018 by The Law Blog

Right to privacy is a fundamental right and not merely a common man right. The ambit of the right to life embodied in Art.21 is wide and far reaching[1]. The right to life has been liberally interpreted so as to mean something more than mere survival and mere existence. It, therefore, includes all those aspects of life which go to make man’s life meaningful, complete and worth living.[2] To make one’s life meaningful and complete right to privacy is a core aspect of life.

Right to be forgotten is a part of privacy that needs to be provided for every individual for protecting his sensitive private and personal information. The availability of a plethora of information sometimes becomes inconsistent with the desire for privacy. There may be instances, where information that one wishes to hide from the public domain, is available freely online. To imbibe the concept of a dignified life guaranteed by Art.21 right to be forgotten need to be considered as a facet of right to privacy thus a fundamental right.

POSITION IN US AND UK REGARDING RIGHT TO BE FORGOTTEN

The concept of the right to be forgotten had originated from the much older droit à l’oubli (right to oblivion) that has historically been applied in exceptional cases involving an individual who has served a criminal sentence and wishes to no longer be associated with the criminal actions.

The right to be forgotten has been recognised as a part of the right to privacy in countries like UK and US. But in both the countries this right is not regarded as an absolute one and it needs to be balanced with the right to freedom of speech and expression and right to information. In May 2014, the Court of Justice of the European Union (‘Court’) recognized the right to be forgotten as a part of the fundamental right to privacy in the case of Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González[3]. Similarly in US in the case of Melvin v. Reid[4], the court recognised right to be forgotten as a part of right to privacy and reasoned that “any person living a life of rectitude has that right to happiness which includes a freedom from unnecessary attacks on his character, social standing or reputation”.

VIEW OF INDIAN HIGH COURTS ON RIGHT TO BE FORGOTTEN

The Karnataka High Court in the case of Sri Vasunathan v. Registrar General[5], upheld a women’s right to be forgotten and Justice Bypareddy had observed that “This is in line with the trend in western countries of the ‘right to be forgotten’ in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned.”

The Kerala High Court had also recognised the right to be forgotten as a part of the right to privacy[6]. In this case, a writ petition was filed for protection of the right to privacy under Art.21 of the constitution and petitioner was seeking directions from the court for the removal of the name and personal information of the rape victim from the search engines in order to protect her identity. The court held in favour of the petitioners recognising the right to be forgotten and issued an interim order directing the search engine to remove the name of the petitioner from orders posted on its website until further orders were issued.

The famous privacy judgment is also highly significant also for the holding on the right to be forgotten. The concurrent judgment delivered by Justice Sanjay Kishan Kaul affirmed and identified the right to be forgotten, in physical and virtual spaces such as the internet, under the umbrella of informational privacy. The right to be forgotten puts individual in control of the information they put and seek out to the erasure of data concerning them[7].

CONCLUSION

Art 21 is an ever expanding and the list of rights under its ambit is not exhaustive. Right to be forgotten too is such a right, which comes under the preview of the right to privacy. Though the right to be forgotten can be termed as a narrow right, it is obvious that this right must be protected in all sensitive cases and in issues of informational privacy to protect the true object of holding the right to privacy as a fundamental right.

[1] Indian Constitutional Law, M.P.Jain 6th edition, Lexis Nexis Butterworths Wadhwa Nagpur

[2] ibid

[3] Case C-131/12, Google Spain SL, Google Inc. v. Agencia Espa ˜nola de Protecci ´on de Datos (AEPD), Mario Costeja Gonz ´alez, 2014 ECLI:EU:C:2014:317

[4] Cal.App. 285, 297 P.91 (1931)

[5] Petition No.62038 of 2016, Karnataka HC

[6] Sredharan T v. State Of Kerala,Civil Writ Petition No. 9478 of 2016

[7] Justice K.S Puttaswamy v Union of India

ABOUT THE AUTHOR

Sowjanya S

Miss Sowjanya S is a third-year law student at School of law, Sastra deemed to be University, Thanjavur, Tamil Nadu where she is pursuing B.com LL.B.(Hons). She hails from Chennai where she had also completed her schooling. Research had always been a fascinating work for her. She is a hardworking smart student who always has the curiosity to learn. She loves to brainstorm problems and find effective solutions.

“Restitution of Conjugal Rights OR Deprivation of Privacy Rights”?

Posted on 2 Sep 2018 by The Law Blog

Marriage is defined as “the civil status, condition, or relation of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex”[1]. Marriage is the union of a man and woman by law for mutual rights and discharge of obligations. This cluster of mutual rights is collectively called conjugal rights.

As per Hindu law, marriage is eternal, divine, and sacramental. According to the Hindu philosophy, the objectives of marriage are Dharma- righteousness, virtue and justice, Praja or Santhana – Procreation, and Rati- Pleasure. “Marriage is considered as a socio-legally sanctioned route to progeny, in obligation to ancestral debts and mandates.[2]”

A positive remedy that was formulated to protect the institution of marriage by the Hindu Marriage Act is a restitution of conjugal rights. Though it was constituted a positive remedy for preserving the sanctity and affirmation, the provision does not adapt itself with changing times. Since the institution of marriage had several changes, only confusion and problems are popping out of this remedy.

The first case where this provision was declared to be unconstitutional was T. Sareetha v Venkata Subbaih[3]. In this case, the Andhra Pradesh High court had held restitution of conjugal rights as against right to privacy. This judgment was subsequently overruled in Saroj Rani[4] Case. But it should be noted that the right to privacy was not considered a fundamental right when these judgments were declared. But now the Honourable Supreme court had held that right to privacy is a fundamental right[5] under Art 21 of the constitution. Therefore, this puts the validity of the provision into question.

Article 21 states that “No person shall be deprived of his life or personal liberty except according to the procedure established by Law”. This is narrated in a negative style but entrusts the positive rights of life and personal liberty. Privacy is an element of Art 21 and privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation[6]. Therefore, sexual activity without the person’s will is only making “one’s body a vehicle for the procreation of another human being”, as stated in the T. Sareetha[7] case. This leads to surrender one’s body to the domination of another is a mental torture, degrading dignity and grossly violating the right of privacy.

A right of free choice is complete autonomy to decide how one’s body is to be sensed and how it is to be used of procreation of children. Forced marital cohabitation is a major violation of the right to privacy and this should never be carried on with a legal sanction and support from legislation. “A decree of restitution of conjugal rights thus enforced offends the inviolability of the body and the mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of such a person.[8]” Therefore, restitution of conjugal rights gives wide scope to degrade the integrity of one’s body and restricts the autonomy of decision making about oneself.

Marriage, procreation and sexual orientation are integral parts of the right to privacy that gets infringed because of this provision. Even the ancient Hindu law does not forcibly compel the wife to cohabit with her husband. In Bai Jiva v Narsingh Lalbhai[9] it was observed by the Bombay HC that, “Hindu law itself even while it lays down the duty of the wife of implicit obedience and return to her husband, has laid down no such sanction or procedure as compulsion by the courts to force her to return against her will”.

Restitution of conjugal rights originated in England where marriage is considered as a contract and wife is a chattel supposed to be owned and possessed by the husband. The same started having its roots in India from the case of Monshee Buzloor V Shumsoonaissa Begum[10] in 1866. But in Britain itself, this remedy was abolished in 1970. It is clear that restitution of conjugal rights is a remedy that had never existed in ancient India; it was implemented in India from England even in England this had been abolished in 1970. Moreover, this remedy infringes the fundamental right of right to privacy. Therefore, it is high time for the legislature to amend this outdated unconstitutional provision for the protection of dignity and privacy rights.

[1] Black’s law dictionary, 4^th edition, 1968

[2] 71st Report of the Law Commission- the Hindu Marriage Act, para 6.5

[3] T. Sareetha v Venkata Subbaiah, AIR 1983 AP 356

[4] Saroj Rani v Sudarshan Kumar Chanda, AIR 1984 SC 1562

[5] Justice K.S Puttaswamy and others v Union of India and anr

[6] ibid

[7] Supra note 3

[8] ibid

[9] ILR 1927 Bom 264

[10] 1866-67 (11) MIA 551

ABOUT THE AUTHOR

Sowjanya S

Fundamental Rights, Right to Privacy

Right to Privacy – A Fundamental Right

Posted on 22 Jan 2018 by The Law Blog

The Supreme Court of India’s judgment in Justice K.S. Puttaswamy (Retd) vs Union of India[1] was a milestone in the history of democratic India. The wordings of the judgement are as follows:

“The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”

The Right to Privacy in India has been developed through a series of decisions by the Supreme Court. Right to Privacy was never an explicit right i.e. it is not verbally stated in the Constitution of India. However, constitutional provisions must be read and interpreted in a manner established by the courts or in a manner which would enhance its conformity with treaties and conventions which is a signatory of.

The judgment also concludes that privacy is a necessary condition for the meaningful exercise of other guaranteed fundamental rights. This judgement was timely given when there was a serious outrage on linking of the aadhar cards to the bank accounts, mobile numbers and so on.

The public felt that this was a pure ground of discrimination as the aadhar card reviled all the personal details of an individual including their religion, caste etc. The government to this accusation clearly stated that aadhar was only a medium through which they are looking forward to improve the livelihood of the underprivileged, provide them with facilities and also introduce people who are not aware of the schemes started by the government for their development.

After this judgement, the Union of India, eroded the two decisions of the Supreme Court – the 8-judge bench decision in M.P. Sharma v. Satish Chandra[2], and the 6-judge bench decision in Kharak Singh v. The State of U.P[3], where they said search and seizure were not subject to be recognized under the fundamental right to privacy and in the other “right to privacy is not guaranteed under the Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which the privacy is invaded is not an infringement of a fundamental right guaranteed by Part III” respectively.

International conventions have also expressly recognized the right of privacy. Article 12[4] of the Universal Declaration of Human Rights , Article 17[5] of the International Convention on Civil and Political Rights , Article 8[6] of The European Convention on Human Rights explicitly provides for right to privacy as a fundamental right and an way to protect an individual’s dignity and integrity of his/her personal life.

All the 9 Judges in the 9 Judge Bench headed by Chief Justice JS Khehar unanimously agreed on the same point that the right to privacy was not an absolute right and it will be subjected to certain restrictions which are to be tested under Article 21[7] with the fair, just and reasonable standards.

In Maneka Gandi v. Union of India,[8] the expression ‘personal liberty’ saw the widest amplitude during those days which included the rights which were not explicitly mentioned in the article. The rule of Natural Justice was also applied and held that every person has a right to fair hearing and a right against bias. Now, this personal liberty would also include Right to privacy after the said judgement. There were a few judgements even before the Aadhar card case where the right to privacy was upheld[9].

The Bench hearing the Aadhar card case passed an interim order restricting compulsory linking of Aadhaar for benefits delivery, after the 9 Judge Bench had marked the beginning of Right to Privacy as a fundamental right. The decision is still awaited.

There are a lot of question which riddles and a few cases which have to be revisited by the Supreme Court after the said judgment, one of those would definitely be the NAZ FOUNDATION[10] case i.e. SECTION 377[11] of IPC. One of the main reasons why the case has to be revisited is because when all the citizens are guaranteed right to life, personal liberty and right to privacy as a fundamental right, the LGBT community deserves the same liberty and the same rights. When Article 15[12] talks about not discriminating citizens based on their caste, creed, sex, and religion, then criminalizing S.377 would be an infringement to a person’s enjoyment of his fundamental right. Also Article 14[13] which ensures right to equality and fair treatment of all the citizens would be breached.

Justice Shah holding the part of S.377 stated that a person’s sexual orientation remains his personal choice and is a matter of privacy and privacy in itself being a fundamental right, therefore choice of sexual orientation will also be a fundamental right. This judgment was later set aside by the Parliament and said that it was beyond the scope of the court’s jurisdiction.

[1] WRIT PETITION (CIVIL) NO 494 OF 2012

[2] 1954 SCR 1077

[3] 1964 (1) SCR 332

[4] Article 12 – Universal Declaration of Human Rights. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

[5] Article 17

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

[6] Article 8 of the European Convention on Human Rights provides a right to respect for one’s “private and family life, his home and his correspondence”, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”.

[7] “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

[8] (1978) 1 SCC 248,

[9] PUCL v. Union of India, 1997 1 SCC 301 (2 judges), Mr. X v. Hospital Z, 1998 8 SCC 296 (2 judges).

[10] Suresh Koushal v. Naz Foundation, 2014 1 SCC 1

[11] 377. Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

[12] 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

[13] 14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

ABOUT THE AUTHOR

Deepa Karanam

Deepa Karanam is currently a third-year student at Symbiosis Law School, Hyderabad. She is currently working as the president of the Legal Aid Centre at Symbiosis Law School, Hyderabad. Social work and charity is something she always looks up to, and the famous JFK saying going by ‘If not us, who? If not now, when?’ fascinates her to keep going and never wait for anybody to bring about a change in the society. An aspiring bureaucrat, her pass time has always been music because of its healing power.

Constitution of India, Critical Analysis, Indian Law

Privacy versus National Interest – An overview

Posted on 25 Oct 2017 by The Law Blog

The journey of privacy has been a roller-coaster ride in INDIA. This topic has been debated a lot and has again come to highlight because of the controversial biometric project.

Most people value their ability to keep their private lives private, to protect information that they consider private. Some people do it to hide information about their financial status, or relationship status.The importance of such a right cannot be denied – secret voting enshrines the principle that how people vote is ultimately their own private decision – even if they choose to publicly back a particular candidate, nobody is allowed to scrutinize their DECISION.

However, in the case of the biometric project, it has caused great concern among civil liberties campaigners, who argue that such state intervention threatens the privacy of ordinary citizens and also many experts believe it is not a fair trade-off for protecting the national interest.

When it comes to defining National Interest, it is the interest of a nation as a whole held to be an independent entity separate from the interests of subordinate areas or groups and also of other nations or supranational groups. In this case, it seems to be a fair decision to trade off citizen’s privacy for national security.

What actually privacy is? Privacy is widely regarded as an important right in free and democratic societies. Article 17 of the United Nations International Covenant on Civil and Political Rights states that: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation” and “Everyone has the right to the protection of the law against such interference or attacks”.

In India, the Right to privacy is one such right, which has come to its existence after widening up the dimensions of Article 21. The constitution in specific doesn’t grant any right to privacy as such. However, such a right has been culled by the Supreme Court from Art. 21 and several other provisions of the constitution read with the Directive Principles of State Policy.

Security versus privacy

The idea of government possessing citizen’s private information can be associated with AUTHORITARIAN REGIMES and can be a key feature of George Orwell’s dystopian novel 1984, in which privacy is all but eliminated.

Despite a general consensus on the value of privacy, many argue it has limits or rather it must have some restrictions. If the government is able to maintain the right balance between privacy and security enabling the authorities to keep tabs on personal information, without giving them carte blanche to snoop on citizens. For those in favour of compromising on privacy for the sake of national security, the key point is that seeking such information is no big deal given the rationale behind it. In other words, privacy might be important, but is it so important that we should risk national and international security rather than compromise a little?

Even the supreme court of India quoted that “Right to privacy can never be an absolute entitlement.” In my own opinion, I believe that both privacy, as well as security, are important for different reasons. I believe that national security is important because we are and will be protected as a whole. On the other hand, our privacy is important as well because everyone wants to keep their personal business to their self’s, or at least have the opinion to keep it that way. I believe that people should be able to have their own personal privacy without worrying that it’ll be interrupted. I also believe that national security is important so that people will know they are and will be protected without worry. What is to be done is maintaining the right balance and a reasonable compromise between privacy and security. Well, as many say, “We should be willing to compromise our privacy in the interests of national and international security”

RIGHT TO PRIVACY IN INDIA

The right to privacy is seeded in several articles of Part III of the Constitution.

To pass the test of privacy, any law framed must be constitutionally valid. It must be need-based and it must be proportionated to the abridgement sought to the right to privacy consistent with actual need.

GOVERNMENT IS FACING A CHALLENGE

The government faces a formidable legal challenge in implementing its ambitious unique identification programme. Pleas have been made before the Supreme Court questioning the lack of a statutory basis for the collection of biometric details, and the government has to meet this point to the court’s satisfaction. Instead of arguing that privacy is not a fundamental right, it would do well to assure the court that it has the technology and systems to protect the data collected. And that it would do everything possible to prevent unauthorised disclosure of or access to such data.

WHAT WE NEED IS PRIVACY ACT

A Group of Experts appointed by the Planning Commission and headed by Justice (retd.) A.P. Shah came out with a comprehensive report in 2012 containing a framework for a Privacy Act. Such a law, it said, should recognise all dimensions of the right to privacy and address concerns about data safety, protection from unauthorised interception, surveillance, use of personal identifiers and bodily privacy. Underscoring a set of privacy principles, the committee said the underlying idea should be that the data controller should be accountable for the collection, processing and use to which data are put. In its zeal to aggregate data in electronic form and target subsidies better, the government cannot ignore its responsibility to protect citizens from the perils of the cyber era.

BUT To pass the test of privacy, any law framed must be constitutionally valid. It must be need-based and it must be proportionate to the abridgement sought to the right to privacy consistent with actual need.

Also, many people who totally protest that privacy should not be compromised at any cost should not forget what former president of Obama quoted, “THAT YOU CANNOT HAVE 100% SECURITY AND 100% PRIVACY.”

ABOUT THE AUTHOR

DEEKSHA KATHAYAT

Deeksha Kathayat is currently pursuing BLS LLB (third-year) from Dr. D. Y. Patil College of Law. An enthusiast debater and avid mooter, she’s into occasions where she can express her views on various issues. She believes that we realize the importance of our voice only when we are silenced. An aspiring bureaucrat, she describes herself as Unstoppable, Unconstrained, and Zealous.

Constitution of India, Constitutional Law

Right to Privacy – An analysis of the recent developments

Posted on 13 Sep 201713 Sep 2017 by The Law Blog

The Aadhaar scheme by the Union Government has been the point of friction for quite a few days. It had been under the lens of allegations like breaching individual’s privacy as it involved the collection of biometric data. With the 12-digit Aadhaar becoming the basis of obtaining the benefits of Government programmes, subsidies, tax administration, and online financial transactions, right to privacy comes under threat.

Privacy has been defined as “a state in which one is not observed or disturbed by other people” or “the state of being free from public attention” by the Oxford dictionary. Privacy can also be defined in the realms of body and mind. The three aspects of privacy include bodily integrity, dissemination of personal information, and right to make own choices.

The debate over privacy has come to light after two cases: the first being the Satish Chandra versus M.P. Sharma case whose documents were searched and seized when a First Information Report was lodged against him, and the second being Kharak Singh versus the State of Uttar Pradesh in which the petitioner was subjected to constant surveillance by police authorities which led to infringement of his constitutionally guaranteed rights.

The Government had reverberatingly stated that “privacy” was never a fundamental right. The government said that “privacy is an elitist concept” and has no benefit for the common masses. It also asserted that privacy is not explicitly mentioned as a right in the Indian Constitution. The increasing number of petitions coerced the Supreme Court to decide on this highly contested issue. Hence a separate nine-judge constitutional bench was formed. This constitutional bench on 24^th August overturned the previous decisions of the 1950s and 1960s which held that “Right to Privacy” is not a fundamental right.

Although it was clear that “Right to Privacy” was not absolute in all aspects, the court needs to establish a balance between the rights of the state and citizens on one side and rights of citizens and non-state actors on other.

Four states, West Bengal, Karnataka, Punjab, Himachal Pradesh, and one Union Territory, Puducherry, have argued in the SC that they support a constitutional right to privacy.

The apex court said that although Right to privacy is not mentioned anywhere in the Constitution but can be easily interpreted if we look through Article 21 and thus forms an integral part of this fundamental right. Privacy forms the heart and soul of Constitution as it embedded in both dignity and liberty which is Article 21. It was a historical unanimous decision though there were six judgements given.

There were 5 different judgements of 5 judges while a common judgement of four judges, including Chief Justice J S Khehar. The common verdict in the words of the court is “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”

“Right to Privacy” is not absolute in the sense that it has to withstand the threshold of restrictions imposed on other fundamental rights. These aberrations must be a fair, just, and reasonable in the context of Article 21.

The ambit and the contentious areas of the right to privacy will soon be defined with the course of time. Other highly disputed areas include the various social networking sites and applications like the Facebook, WhatsApp, and other messaging services which breach Privacy by selling personal information to private companies.

The bench concluded that “Privacy” is the core of human dignity. This judgment has also wobbled the fate of Section 377 of the Indian Penal Code and the recent beef ban by the Maharashtra Government. Privacy also covers the aspect of personal intimacies, sexual orientation, marriage and food.

This mammoth decision has a galore of impacts and consequences. Now, Aadhaar enrollment would be voluntary and not mandatory, thus not depriving anyone of the welfare benefits if one opts not to enrol. The government is entrusted to advertise that Aadhaar is a voluntary scheme.

This verdict will have an impact on the collection of data by the government and even private companies. This could also lead to the formulation of a legal framework to safeguard individual data as well.

ABOUT THE AUTHOR

ASHISH KUMAR YADAV

Ashish is an undergraduate student at Cluster Innovation Centre, University of Delhi. The institution has a Meta College concept and focuses on an interdisciplinary approach. He is the co-founder of two non-profit ventures, one of which deals with education and the other in enhancing scientific communication among the masses. He has done three research projects at Cluster Innovation Centre the first aimed to create a prototype of full- fledged Hindi dictionary and another on the Study of a community’s cultural tradition (Banjara community). The third project was Hafta bazaar aimed to digitalize and study the various weekly markets in Delhi. He is quite ardent in the field of economics and journalism and is intrigued by topics from digital marketing to management, which are reflected in his undergraduate studies. He was also a part of a report published on education.

Right to Privacy

The Tale of Two Elephants: Finding the Balance Between the Right to privacy and National Security

Posted on 18 May 201718 May 2017 by The Law Blog

Following the recent terrorist attack at Westminster, London, the legal authorities have been faced with the challenge of getting access to private data as soon as evidence suggested that the attacker was in use of WhatsApp three minutes before the attack.

While the authorities are asking the tech companies to voluntarily allow them access, the tech giants have clearly stated and maintained their stance that they would not allow such as it’s against their policy and pledge to their users.

Various arguments by the two parties have been raised in view of this situation. Therefore it is the intention of the author to find the right balance between the right to private and national security.

WhatsApp which seems to be the villain as acted out by the government have raised rationales as to why they would not assist the government in creating a back door to get access to private data. One of its justifications was the purpose of encryption of data which is to protect its users’ data from hackers. The government authorities not too pleased with this rationale, argued that the purpose of data encryption has been overreached which makes it difficult for them to solve crime cases and prevent terror attacks.

Another reason given by WhatsApp is the possibility of these extremists switching to other communication platforms, which would make no sense to then create a back door investigating one man while putting the other billion users at risk of exploitation of their right to privacy by unapologetic hackers.

The government have in response stated that there would be no hiding space for terrorists and as such, it was unacceptable for WhatsApp or any tech company in the justification of their policy rights, to refuse them their demands.

While there have been raging critics for and against the actions of WhatsApp, it is important to strike a right balance between the right to privacy and national security

The UK Data Protection Act in its first schedule provides that personal data will only be obtained for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose/purposes. It further provides that accidental loss or damages to personal data will face technical and organizational measures.

The Investigatory Powers Act and The Counter – Terrorism Act also provides that tech companies can be legally compelled to hand over data for investigatory purposes. These legislations evidence that UK now wields surveillance powers over tech companies.

While it may look like a great idea for the authorities to enforce these legal provisions, having given the power to do so, its effect will undoubtedly pose economic threats such as giant tech companies, corporations and global bodies leaving the shores of the country which will result economic downturn.

More importantly, the security of the country will be further threatened not just by extremists who would source for smaller and unpopular communication platforms to execute their deadly plans, but most sadly the social and political upheaval which would be caused by its own citizens and residents as a result of the gross violations of their right to privacy resulting in a country devoid of peace, stability and economic growth.

However, it will definitely be unconscionable for these tech giants to ignore the loops in their technical programs and not proffer a solution to the misuse of their social platforms by these extremists while making a noise about data protection.

Therefore, while it is advised that the government authorities avoid the Orwellian approach of punishing the good people to catch the bad guys, and the tech companies being more concerned about national security than enrichment of themselves in the hypocrisy of data protection, it is recommended that the two opposing teams should become a team in proffering solutions to putting a stop to these attacks.

While it is not easy to proffer a solution which would not hurt either of the parties in relation to national interest and data protection, it is important that these stakeholders come together to implement a balanced policy on privacy and security.

More importantly, it is highly recommended that these tech companies develop software or programs that identify terrorist activities and provide more support for emerging communication platforms to close all ends and avoid any leakage for terrorists to carry out their activities.

The right to privacy and national security must not be compromised. Any compromise on the right to privacy could also lead to vulnerability of its security to external attackers. As such, there is an obligation on the shareholders to find the right balance between national security and privacy by way of a new legislation which closes the loopholes that the existing legislations already have.

ABOUT THE AUTHOR

ESTHER OYEWOLE

Esther is an undergraduate of law in the university of Lagos, currently in her penultimate year. She enjoys writing law and business articles, including writing resumes and proposals for individuals, and organizations. Her freedom lies in the ability to use her imaginations to solve problems and living to her fullest human potential.