This article has been written by Tarannum Vashisht, a student of the Rajiv Gandhi National University Of Law, Punjab. This article attempts to explain the interface of social media and the right to privacy, dealing primarily with the current situation of India.
Table of Contents
Media has entered in almost every sphere of our lives, connecting us to both the local and global community. Most popular these days are social media platforms. These have become the most preferred pedestals of sharing information, most importantly on glaring social issues. They have become a vital source of information, especially for the younger generation. Hence, they create a glaring impact on young minds.
This is where the issue of the right to privacy creeps in. Right to privacy is a fundamental right of every citizen of India, interpreted by the Supreme court of India to derive from Article 21 of the Constitution of India. The issue at hand is that of competing claims between staunch advocates of social media platforms and people claiming breach of their right to privacy, at the behest of social media platforms, eulogized as the right to freedom of speech and expression.
Role Of Media
As is evident, media has become an intrinsic part of the lives of every person of the modern world, therefore having an obvious impact on us. This impact is both positive and negative. The most important positive impact is the easy accessibility of information, that too, at a minimal cost. We get information from around the globe in seconds. Also, with social media, we get to connect with our friends and family, who may be living at a great distance from us. Staying in touch with our loved ones, and also the world at large instils a feeling of connectedness in us from the very vicinity of our homes.
Coming to the negative impacts, the list is long. The most talked-about being addiction to mobile phones, stress and bad mental health. This can cause change in sleeping patterns, various sleep problems and can even be the cause of various psychological problems. Another area of concern is the breach of the right to privacy, particularly concerning social media and would be discussed further in this article.
Growth of Social Media and its Increasing Influence on Youth
From a thirteen-year-old child to a seventy-five-year-old senior citizen, from a daily wage worker to a software engineer, everybody is on social media. Social media sites like Facebook, Instagram, Twitter, Youtube, have made almost every mobile phone in their home. Among all these kinds of people, it is the youth who is most involved in social media. This involvement may have positive repercussions for some, these include easy accessibility to a wide variety of information, providing an encouraging platform to showcase their creativity, skills and also voicing their opinions on issues which may be social, political or economic. Therefore, it may serve as a source of empowerment for the youth.
With this flexibility, every person has access to a platform where he or she may share information or voice his or her opinions. However, it has to be kept in mind that this free flow of information is by no means an all empowering process for everyone. This may prove to be a bane for some innocent people who may fall prey to others mal intentions. Yes, flowing of false information, intentionally or unintentionally has become a commonplace on social media. We often hear news of fake allegations like that of sexual harassment, fraud etc particularly to defame someone. There are also many cases where someone’s personal information is made available on the internet for public view. All this amounts to a breach of the fundamental right to privacy.
Right To Privacy
Privacy, in the simplest sense, is the state of being secure from public intervention, without one’s permission. Recognition of the right to privacy as a fundamental right was a bone of contention for years for the Indian judiciary. In the earlier judgements of M.P Sharma vs Satish Chandra and Kharak Singh vs the State of U.P, it was held that the right to privacy is not a fundamental right guaranteed under the Constitution of India.
In an unprecedented and historic judgement, in the case of Puttaswamy v. Union of India, right to privacy was declared as a fundamental right, falling well within the boundary of Article 14, 19 and 21 of the Constitution of India. It particularly exists intrinsic in the right of life and liberty. It was declared that this is a fundamental and inalienable right protecting all personal information of every individual, from even state scrutiny. Therefore, any act by anyone, including the state, which infringes on the right to privacy of an individual is subject to strict judicial scrutiny.
However, it was also clarified by the Apex court that, though the right to privacy is now a fundamental right, it is still subject to reasonable restrictions. For the imposition of these restrictions, the state has to fulfil threefold criteria, laid down by the Supreme court.
Impact Of Social Media On the Right To Privacy
Social media is basically a form of communication via the internet. Its main goal, when it came into being, was to create a virtual kinship network throughout the world. The major social networking sites are Instagram, Facebook, WhatsApp, etc. The users of these social networking sites were untroubled until the coming of the 1990s. This was when cybercrime was born.
Believe it or not, it is us who give away our personal information online. Intentionally or unintentionally, we give away a lot of our personal information. This can be by signing up for Amazon prime, Facebook, Instagram etc. Out of the internet users, one third admit to knowing nothing about their personal information which is available online. Tons of cyber information available online has opened the gates for new legal challenges for which adequate laws are yet to be framed.
Also, it just doesn’t stop with not saving your passwords online or not giving away any of your personal information online. Much more is splayed across cyberspace ranging from the people you are connected with on social media, your buying patterns, to the frequent visiting of some website etc.
If you fail to protect your personal information from online hackers, the damage caused to you can be huge. These can range from stealing your social security benefits, filing of compensation claims using your credentials and using your names for making monetary transactions in their name to using your credentials for making fake passports, PAN cards etc. More importantly, the cases of sexual predators, cyberstalking, defamation and identity thefts have come into focus.
It has been noted that the younger generation falls prey to such cybercrimes the most. This is because usually, they see no harm in giving out even their personal information. This is major because of their immaturity, which is easily identified by these criminal minds.
It is shocking to note that one of the largest social networking sites, Twitter, has admitted that they have scanned the contacts of all their users so that they can get more information regarding their users. Another example of this is Facebook, giving contradicting statements about its own nature. One the one hand, it takes the firm stand that it owns all the contacts available, and on the other hand, it grants users the right to access any contacts available.
Social Media and Privacy Related Laws In India
Laws related to social media and privacy in India are clearly insufficient. The Indian judiciary and legislature have proved to be far behind expectations when it comes to the framing of laws in this arena. Some rules and legislations have been issued, those too are primarily related to defamation.
In the Kharak Singh v State of UP, often called the PUCL case, it was held that tapping of phones amounts to a breach of privacy. Extending this reasoning, it can be reasonably held that sharing of information by WhatsApp with Facebook, post its update, is an obvious breach of privacy of its users.
Now let’s come to the Information and Technology Act, 2000. The concept of privacy in this act is comprehended in a very liberal and traditional sense. The act of knowingly sending pictures of a person’s private parts, without his permission, then Section 66E of this act is violated. Social media finds only a mention in Section 79 of this act. This section clarifies that if any person posts or uploads anything derogatory to some other, then the medium on which it is posted, that is Twitter, Facebook etc, is not to be held liable for the acts of such person. Beyond this, nothing is mentioned in the whole article with regard to social media. Let us understand this by a simple example- If X, a Facebook user posts something derogatory to Y, another Facebook user, then Facebook is not to be blamed for X’s act.
This concept has however evolved with time, in the case of Shreya Singhal, it was held that it is Facebook’s duty to remove any material posted by them which is objectionable. This has to be done by Facebook, applying its discretion, after complaints regarding the same are received.
One concept to be noted here is the growing popularity of meme culture. Memes of famous personalities carrying derogatory comments and comparisons can be safely termed as an invasion of the privacy of such individuals. To check such incidents is urgently required.
Next, let’s learn about the recent Whatsapp- Facebook Privacy Case or Karmanya Singh v. Union of India. Constitutional rights were meant to deal primarily with the relationship between the state and individuals. However, this concept has seen a marked change due to the boom of privatisation in India. Private companies have taken up many functions which are traditionally associated with the state. Our Constitution makers, however, had framed laws according to the situation of the country which was prevailing at that time.
Due to these changed conditions, these private actors when performing state-like actions are subjected to the same Constitutional scrutiny. In the case at hand, the contract between two social networking sites, Whatsapp and Facebook was challenged, both private parties, invoking the above-mentioned ideology.
The facts of this case are – Whatsapp contends that now Facebook is its parent company, and hence data of its users can be sent to the latter. Examples of the data in question are- names, phone numbers, credentials, location, status etc. This vulnerable data may be used for a number of purposes of which the users would not even be made aware of. The most harmful one being the risk of uncalled for surveillance. It was also noted that this update of WhatsApp would affect a wide variety of users, most of whom would not even be aware of the damage that can be caused to them.
This case is presently pending before the Supreme court of India. The question of privacy as a fundamental right was then referred to a larger constitutional bench. This bench ruled that privacy has a tripartite structure namely, intimate, public and private zones of privacy. The intimate zone includes physical and sexual privacy, the private zone encompasses ATM number, PAN number etc. These two zones, held by the Supreme court of India are beyond the facts of the case at hand. The zone of public privacy, it was held, has to be dealt with on a case to case basis. The present case falls under this zone and is pending before the Supreme Court.
It can be concluded that much needs to be done in the arena of the interface of social media and the right to privacy. There is an urgent need for the development of a unique and comprehensive statute encompassing this arena. Also, the present statute, that is, the Information and Technology Act, 2000 has to be widened, explaining in greater detail, issues related to privacy and social media. Most importantly a wider definition of privacy is also to be adopted in this Act. There is also a need for proper implementation of guidelines issued by the Supreme Court Of India, in various cases related to privacy and social media.
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