Learner’s Submission: Right to Privacy in India

24/01/2012

“In the present “information and cyber age”, the importance of data cannot be underestimated by any government of the world. Having strong spirituality in belief, in my country, India, the majority masses believe in confidentiality of their personal information. At present, Indian Law is at a crossroads with regard to the development of data protection. Thus, in India to some extent, law related to data protection is illusory, never-the-less it can at best be regarded as a promise of future improvements.

Legislative Provision

The Law of the Land has endorsed “right to privacy” as one of the most fundamental right of all persons whether they are citizen or not of India. Privacy was held to be important aspect of fundamental right vide Article 14, Article 19 (1) (a) and Article 19 (1) (d), and Article 21. In fact, the Information Technology Act, 2000, the Indian Copyright Act, 1957, the right to Information Act, 2005, enacted by the Indian Parliament, is the main legislations in this field.

The Information Technology Act, 2000

The main principles on data protection and privacy enumerated under the Information Technology Act, 2000 are:

(i) defining ‘data’, ‘computer database’, ‘information’, ‘electronic form’, ‘originator’, ‘addressee’, etc;

(ii) Creating civil liability if any person accesses or secures access to computer, computer system or computer network;

(iii) Creating criminal liability if any person accesses or secures access to computer, computer system or computer network;

(iv) Declaring any computer, computer system or computer network as a protected system;

(v) Imposing penalty for breach of confidentiality and privacy;

(vi) Setting up of hierarchy of regulatory authorities, namely adjudicating officers, the Cyber Regulations Appellate Tribunal, etc.

Right to Information Act 2005

After right to file “Public Interest litigation”, “Right to Information act’ is another milestone in contemporary legal history.

RTI Act laid down a procedure to guarantee right. Under this law, all Government Bodies or Government funded agencies have to designate a Public Information Officer (PIO). The PIO’s responsibility is to ensure that information requested is disclosed to the petitioner within 30 days or within 48 hours in case of information concerning the life or liberty of a person.

Use of Data Protection Law

I have used Right to Information Act 2005 to access data from several leading government organizations.

The practical way to get access of data under Right to Information Act 2005 is to send enquiry to the designated PIOs of the concern organization who is duty bound to provide the details. If the information pertains to other organization, then instead of refusing directly, he has to forward the enquiry to the concern organization with the information to the concern person. The most important aspect is to ensure that respond must be send to the concern person within the stipulated time period.

To get access of data, I generally prepare information sought to be taken in the form of list of questionnaire. The questionnaire is prepared in such a way which involve direct questions, but in tricky manner. The required information is send to the concern designated PIO by registered post/speed post.

As far as my experience is concern, I observed in most of the cases the concern authority generally respond on information sought, never-the-less the information provided by them are either not in complete sense or simply mention that information sought does not pertains to their department.

Never-the-less, despite of some lacunas, it is beyond reasonable doubt that Right to Information Act 2005 is certainly one of the most important legislation which give right to general masses to get access data in India.

Conclusion

India is still at a very early stage of developing personal data protection. At present India does not provide significant protection to personal data in relation to all or most of the common privacy principles, in any sector, to meet any international standards. We should always remember the lines of Robert frost:

“The woods are lovely, dark and deep,
But I have promises to keep,
And miles to go before I sleep,
And miles to go before I sleep.”” – Ashutosh Kumar – Delhi, India


Learner’s Submission: Access and Protection to Information in South Africa

20/12/2011

“Tuesday, the 22nd of November 2011 (Black Tuesday), marked the passing of the controversial Protection of State Information Bill (Secrecy Bill) by the African National Congress (ANC) dominated National Assembly in South Africa.

Although it is still a proposed law and has now been referred to the National Council of Provinces(NCOP) – the lower house of parliament – for further consultations, it has been widely critised for its provisions that could help the government hide corruption and is in direct contravention of the 1995 Freedom Charter.

The following are some of the contents of this piece of legislation:

  • There are espionage and hostile activities offenses which punish the communication of classified information which the person “knows or ought reasonably to have known would directly or indirectly benefit” a foreign state or a non-state actor, or prejudice national security. These offenses attract jail terms ranging from 3 years to 25 years;
  • Intentionally accessing classified information or unauthorized possession of classified material is a criminal act and can land one in jail for up to 10 years;
  • Foreign spies are required to register their status as agents with the government or face between 3 to 5 years in prison;
  • Any head of an organ of state may classify or reclassify information. The State Security Ministry is the custodian of all classified information and material remains classified for no longer than 20 years, unless the state provides a compelling reason to keep it secret;
  • Disclosing classified information unless protected under the Protected Disclosure Act or the Companies Act is punishable by a fine or a maximum jail term of 5 years;
  • Failing to report the possession of and to return a classified document attracts a fine or a maximum 5-year jail sentence;
  • The branch that classifies information can decide whether to grant requests for declassification;
  • Computer hacking of state records is a criminal offense which attracts a jail sentence of 5 years to 10 years.

The criminal sanctions this bill seeks to impose are very stiff indeed and of great concern, is the absence of a public interest defense clause, which would allow journalists to publish classified information without fear of being arrested for exposing wrongdoing in government or any state organ. It would allow careful decisions to be made by the journalist and editor concerned about whether the public interest indeed justifies disclosure, and if this decision is wrong, there will be criminal law consequences.

In 2002, the African Commission on Human and People’s Rights adopted the Declaration of Principles on Freedom of Expression in Africa, which states:

  • Public bodies hold information not for themselves but as custodians of the public good and everyone has the right to access this information, subject only to clearly defined rules established by law;
  • The right to information shall be guaranteed by law in accordance with the following principles;
  • Everyone has the right to access to information held by public bodies;
  • Everyone has the right to access information held by private bodies which is necessary for the exercise or protection of any right;
  • Any refusal to disclose information shall be subject to appeal to an independent body and/or the courts;
  • Public bodies shall be required, even in the absence of a request, actively to publish important information of significant public interest;
  • No one shall be subject to any sanction for releasing in good faith information on wrongdoing, or that which would disclose a serious threat to health, safety or the environment save where the imposition of sanctions serves a legitimate interest and is necessary in a democratic society;
  • Secrecy laws shall be amended as necessary to comply with freedom of information principles;
  • Everyone has the right to access and update or otherwise correct their personal information, whether it is held by public or by private bodies.

In the meantime the ruling Tripartite Alliance is clearly divided over this piece of proposed legislation which has already been passed by the National Assembly.” – Butholezwe Bhebhe – Johannesburg, South Africa


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