The advancement of the technology and the dynamism of legal world provides outlook of privacy and data protection issues in this recent era. Privacy is something that is not to interfere to the interest of others. Privacy is becoming a concern of every individual due to technological advancement and it also emphasizes narrowly for protection of data. Data protection emphasis individual liberty and these individual’s liberty is under threat by the interference of the stranger. The activity of the stranger to the individual’s activity by any means is required to halt. The basic legal requirement of any new phenomenon can be validated through the constitution. The constitution of India has given more emphasis on right rather than duty. For giving emphasis data protection, it considers as a right based approach. As India is developing state, it needs some time for the effectiveness or implementation of the new area of law.
The data protection issue mainly attracted by these areas which are Right to Privacy, Right to Information, Information Technology, Indian penal Code, National Security, Intellectual property, Corporate Affairs, Consumer etc. Every person is eligible to a ‘personal domain’ free from unjustified interference or surveillance by the State or other actors. Notwithstanding the pervasive recognition of the obligation to protect privacy, the specific content of this right was not fully developed by international human rights protection mechanisms. The lack of clear expression of the content of this right has contributed to difficulties in its application and enforcement. As the right to privacy is a qualified right, its interpretation raises challenges with respect to what organizes the private sphere and in establishing notions of what constitutes public interest.
Concept of Data Protection
The concept of data protection is taking the important place in worldwide. Gradually all nations are embracing the concepts of Data protection and implementing laws regulating the use and abuse of personal information. This terminology of “data protection” is deriving from the German term “Datenschutz”. The data protection concept is more of less connected with the individual’s privacy. It is typically reserve for a set of norms that serve a wider range of interests than simply privacy protection. It is not privacy only which are been taken into consideration for data protection. There are variety of other, partly overlapping concepts have been invoked too, particularly those of “freedom”, “liberty” and “autonomy”. In the concern the first and foremost condition come in mind for the individual that data protection is a right or not. An emerging issue in this area is the extent to which such laws should protect organizations and groups. This data protection concept mostly accepted about the individual’s information protection. The scope of the data protection is also the protection of information laws to “data subjects” defined narrowly as “living individuals”. Thus, in matter of corporate body, such as a limited company, has no right of access to any information concerning itself because the organization is not a data subject, and information about it is not personal data. Therefore, data protection issues authoritative value is considering a debatable matter. The state or non-state actor or the individual who will protect it as a matter of right. In non-state actor the two essential aspect of data protection are as, firstly, the narrower meaning based on the argument that legislation should extend to organizations, particularly smaller enterprises, because information about the organization may indirectly be information about the organization’s owners and controllers. Second, the broader meaning, that organization have legitimate rights in respect of information about them held by others in the same way that individuals have.
Data Protection & Right to privacy
The ‘data protection’ and ‘right to privacy’ has much more similar to each other. The ‘data protection’ can only be possible if the encroachment of privacy is being stopped. Privacy law in general, and informational privacy in particular, have always been closely linked to technological development. In their seminal 1890 article ‘The Right to Privacy’, Warren and Brandeis lament the ‘instantaneous photographs and newspaper enterprise that have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops”. This is the genesis of the privacy matter. Now a days this is being developed in ‘data protection’. The idea of ‘Data Protection’ has its different aspects. The different aspects of data protection as a right like, the right of access to data banks, the right to check their exactness, the right to bring them up to date and to correct them, the right to the secrecy of sensitive data, the right to authorize their dissemination: all these rights together today constitute the new right to privacy. Hence in this matter the linkage of ‘Data Protection’ and ‘Privacy’ status are very much appropriate as a right based approach. The evolution of the Constitutional right to privacy began in the early 1950s in the context of police surveillance of the accused and domiciliary visits to a person’s home. The domiciliary visits could be conducted any time, night or day, to monitor whether persons were engaging in suspicious criminal activity. In a case of M.P Sharma v. Satish Chandra, Supreme Court held that the contention that search and seizure violated Article 19(1) (f) of the Constitution. The Court took the view that a mere search by itself did not affect any right to property, and though seizure affected it, such effect was only temporary and was a reasonable restriction on the right to privacy. Then the right to privacy has been developed in the Constitutional sphere of India under the Article 19 (1) (a) and Article 21.
Data Protection & Right to Information Act, 2005
In India, Right to Information come with that contention that, “the practical regime of right to information for citizens to secure information under the control of public authorities in order to promote transparency and accountability for matters connected therewith or incidental thereto”. This is the preamble of the Act 2005 and the Section 2(j) speaks about the definition of ‘right to information’. Now the issue arise that ‘data’ which was kept with the public authority are safe or not. The digital data as per clause (iv) of Section 2(j) is being maintaining properly or not is really in doubt. The ‘data protection’ in this Act is concern are being taken care as a matter of right to the individual. In a case, Bannett Coleman v. Union of India the court held that ‘it is indisputable that by freedom of press meant the right of all citizens to speak, publish and express their views,’ and ‘freedom of speech and expression includes within its compass the right of all citizens to read and be informed’.
Data Protection & Information Technology (Amendment) Act 2008
The ‘data protection’ and the ‘Information Technology Act” has its own implication with each other relation. The objectives of the Act clearly speak about the protection of the cyber relation matters. It provides for protection against certain of breaches in relation to data from computer systems. The said Act comprises provisions to prevent the unlawful use of computers, computer systems and data stored therein. There are several provisions has been inserted which are related to the ‘data protection’. The new section 43A and Section 72A of the Act clearly speaks about the protection of data. This 2008 Amendment Act represent a significant step towards combating the multitude of crimes of the cyber age. The changes introduced in the statutory data protection in Indian laws thereby finally ceding to the demand of the US and European nations over the past decade.
Data Protection & Consumer
The consumer relation with the organization is a very vital to articulate the ‘data protection’ matter. In the case of Shakankarlal Agarrwalla v. State Bank of India, the Calcutta High Court held that a banker is under an obligation to secrecy. According to Lord Halsbury’s laws of England, “it is implied term of the contract between a banker and his customer that the banker will not divulge to third person without the express and implied consent of the customer either the state of the customer’s account or any of his transactions with the bank or any information’s relating to the customer acquired through the keeping of his account unless the banker is compelled to do so by order of a court or the circumstances give rise to a public duty of disclosure or protection of the banker’s own interest requires it.” Therefore, the idea to put forward the relation of the banker and customer must be maintaining.
In the other way, due to e-commerce data protection is in danger and the misuse is growing day by day. The only issue is relating to collection, storage, accuracy and use of data provided by internet users. The most concern about this is BPO fraud, all this fraud come under the penal provision of the IT Act. This phenomenon is only because of the customer relation with the authority. If the authority i.e. the service provider maintains the proper privacy policy, then this situation will not arise. But the unfortunate part is that the authority are not at all bother about this kind of privacy policy. The enforcement agencies also not aware of all such kind of violation of rights. The privacy issue along with the data protection only be satisfy by the well-equipped ‘right based approach’.
The analysis of different themes highlighted data protection has treated as a right on different perspective. The scope of technology day by day increasing to maintain this increasing phenomenon, it is requiring strengthening data protection regime for the protection of individual liberty. Idea to have this research work is to establish right to privacy and data protection right as a fundamental right and after analysis; it is justified to treat as right. From others interference and Infringement of individual liberty can only be satisfied the entire legal requirement as a right of data protection. Institutional status of data protection can give a universal approach to data protection. To give special status to data protection as a right, the facets of data protection like data collection, processing, storage, security and access should provide a platform together in legal framework. The awareness about the right base approach of data protection and privacy has to spread worldwide unanimously.
