Editorial: Address privacy concerns
The Joint Parliamentary Committee’s report on the Personal Data Protection Bill, tabled in both the Houses, has ended up raising more privacy concerns than it has managed to address. Instead of prioritising the protection of citizens’ privacy, declared as a fundamental right by the Supreme Court, the JPC has approved more powers to the state […]
The Joint Parliamentary Committee’s report on the Personal Data Protection Bill, tabled in both the Houses, has ended up raising more privacy concerns than it has managed to address. Instead of prioritising the protection of citizens’ privacy, declared as a fundamental right by the Supreme Court, the JPC has approved more powers to the state agencies in the collection and usage of the data and justified it on the grounds of national security. After studying the provisions of the draft Bill for two years, the committee has made fundamental changes to the legislation. It has expanded its mandate to include discussions on non-personal data, thereby changing the mandate of the Bill from personal data protection to broader data protection. Through a set of 99 recommendations, the panel has virtually taken away the fundamental right of the citizen to privacy and put it in the hands of the government. On the face of it, however, the Bill aims to provide for the protection of the privacy of individuals relating to their personal data, specify the flow and usage of personal data, create a relationship of trust between persons and entities processing the personal data, protect the rights of individuals whose personal data are processed, create a framework for organisational and technical measures in the processing of data, laying down norms for social media intermediary, cross-border transfer, accountability of entities processing personal data, remedies for unauthorised and harmful processing, and to establish a Data Protection Authority of India.
The widespread exemptions granted to the state run counter to the well-established norms, such as the ones laid down by the constitutional bench of the Supreme Court which declared the right to privacy as a fundamental right of the citizen and therefore unbreachable. The inherent design flaws in the formulation of the Bill have resulted in the creation of two parallel universes: one for the private sector where the law would apply with full rigour and another for the government where it is riddled with exemptions and escape clauses. Understandably, industry bodies have raised concerns over several provisions like the inclusion of non-personal data, treating certain social media networks as publishers and the expanded data localisation mandates. Among the key recommendations is that social media companies that do not act as intermediaries should be treated as content publishers. This means they become liable for the content they host. Under the existing law, all social media platforms enjoy exemptions from liability based on their status as intermediaries. The new proposal would herald a significant exercise of sovereign regulatory power over businesses. Sweeping powers have been given to the state as data processing and collection is allowed even without the consent for providing government services, maintaining public order and safety under Section 12 of the Bill.
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