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My Labrador, named Phantom, is one of the friendliest beings around. Still, over the years, I’ve noticed that while he is quite comfortable being petted and fondled by most; he is distinctly displeased with some who come up to him, attempting to pet or fondle him. Without doubt, with some, Phantom prefers to reserve his space.
In the wild, with overwhelming varieties of life; it is easily noticeable that they don’t like intruders, particularly strangers, in territory that either they consider as their own or where the intruder or the stranger has approached rather too close. Sometimes the creature in question, such as say a bear or a herd of wild buffaloes or a pride of lions are prone to show their displeasure at such intrusion to their proximity by a display of aggression. But near all do show some reaction to such intrusion, either by moving away or by remonstrating through bodily behaviour.
Humans, too, as is noticed, do display similar attributes where they resent intrusion by others in such aspect.
In 1890, Samuel Warren and Louis Brandeis, in their seminal article published in Harvard Law Review, tracing the rights to privacy under the common law of torts, argued for the right to privacy to be given a more clear and stronger pedestal under the law. The catchphrase by which they sought to define the right to privacy was “the right to be to let alone”; which phrase – a coining from Judge Thomas Cooley’s celebrated work on torts in 1880 – was to set the momentum to greater heed and regard to the right of privacy. United States Supreme Court benchmarked the right “to let alone” in its decision in “Union Pac. Ry. Co. V. Botsford”, 141 US 250, 251 (1891).
Over the years, the right to privacy has evolved and has been recognised as a basic human right. Article 12 of the United Nations Declaration of Human Rights provides that (1) “No one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation”; and that; (2) “Everyone has the right to the protection of the law against such interference or attacks.” Article 8 of the European Convention on Human Rights declares that (1) “Everyone has the right to respect for his private and family life, his home and his correspondence”; and that (2) “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the right and freedoms of others.”
A right to privacy is recognised under the constitutional law of a large number of countries as a basic human right. In India, the Supreme Court has recognised the right to privacy as a basic human right in some of its decisions and the approach has been to seek the existence or absence of such right and the weight attached to it in a given situation and not to undertake to define the right to privacy and justified restrictions on it in any general manner.
In recent years, aided by developments in technology; collection of data, often of a personal nature, at an ever increasing scale has led to burgeoning issues and controversies in such respect.
Witness the condition to disclose data, including that as would be clearly defined as personal relating to family photographs, friends contact list et cetera, to downloading applications on Google play.
In June 2 013, based on revelations made by Edward Snowden, a US government contractor, “The Guardian” published that National Security Agency (NSA) of the US had collected telephone records of tens of millions of Americans. Close on the heels of the same, “The Guardian” and “Washington Post” published that NSA had direct access to – via the PRISM program – to the servers, amongst others, of Apple, Google and Microsoft and that these companies had assisted NSA in infringing laws and regulations pertaining to privacy controls. Following thereto, based on information provided by Snowden, it appeared that not only the NSA; but government agencies in a number of other countries had undertaken surveillance in a manner seemingly at odds with privacy protection.
The issue of privacy, in present times, therefore is a hot one and promises to remain so for times to come leading to an ever pressing need to have a clearer understanding of privacy and the concomitant rights.
The catchphrase “right to let alone” given by Warren and Brandeis did help set the tone to further probing of issues of privacy and to set about charting a more clear road to the understanding of privacy; but in itself, the phrase “the right to let alone”, is too wide, imprecise and leaves the issue to be clearly probed much deeper and incisively in the interests of better understanding of the issues of privacy, especially in the context of ever increasing technology in such respect.
In “Understanding Privacy”, a well-researched and well-reasoned work, Daniel J. Solove argues that a definition, all pervasive, of privacy would seem to be infeasible and any such definition would be either overwide or on the narrower side and it is better, for a proper understanding of the working of issues of privacy, to relate it to the context in which such issues arise. Still, realising the need for cornerstones or guidelines as a necessary bastion towards the understanding of the issue of privacy; Daniel J. Solove submits that the concept of privacy, or better, rather it’s working in reality, can be approached from four different contextual angles namely, (1) collection of data, (2) processing of data, (3) dissemination of data and (4) invasion. In all these broad context; – issues of privacy arise on regular basis and are to be understood and dealt with in their contexts; though, of course, these contexts can overlap and are not watertight compartments exclusive of each other.
While the segregation of the working of privacy issues in such four broad groups of “information collection”, “information processing”, “information dissemination” and “invasion” is helpful – “invasion” here would include the more conventionally or traditionally understood aspects of intrusion in private spaces such as homes and the like – nonetheless, it behoves a more succinct and, if possible, a tighter defining of the subject matter of the issues that relate to and give rise to the rights to privacy.
It is submitted here and, as put right in the beginning, privacy seems to have its origin in basic human will and instinct. It is prevalent in most other forms of life which resent intrusion in their private spaces. Such resentment can be on grounds of perceived dangers or displeasure simpliciter at the disturbance of a state of environment or atmosphere not desired to be disturbed by the presence of others, particularly strangers.
The will or the instinct to privacy, for a better correlation to adjudicating it in practicality, can be broken down broadly to a compendium of two situations.
In both the situations, whether it is a perception of threat to safety or where it is resentment against disturbance being posed to a certain state of affairs; possession seems to play a critical role. Issues of privacy seem to be at their strongest in matters of incursions inside the home or a space which is under possession or with regard to information or data that one considers as pertaining to or being so largely linked to oneself as to be considered matters of personal possession. Incursion into feelings, sentiments and emotions which again is perceived to be so linked or pertaining to oneself as to lay claims to possession over the same also are strong bastions of issues relating to claim to privacy.
Proceeding from the above cornerstones giving rise to issues of privacy; namely where intrusion is in matters of one’s possession and which are perceived as safety threat; or where the intrusion is resented on grounds of disturbance or conflict to a desired state of things including emotions, sentiments or decisions in areas held to be so vitally linked to oneself as to be that justified as possession over the same; what would then be required is to firstly adjudicate whether the perceived subject matter, either on grounds of threats to safety or disturbance to a desired state of affairs or things, is so substantially linked as to justify claims of possession over the same on part of the person or entity claiming privacy protection with respect to the same and then, secondly, to see whether, if a claim to a right of privacy does arise as aforesaid, then there is a need to roll back or restrict such a right to privacy on grounds of ABSOLUTE NECESSITY.
The first step, in adjudicating issues of privacy, to reiterate, therefore, is to see whether the claim is indeed over such subject matter as to which indeed one can lay a genuine claim to being vitally linked to oneself – and possession here would be the instrument to conveniently decide most of such issues – and then to see whether the rolling back or restricting such right or claim to privacy, if made out, on the basis of the first test as aforesaid, is able to be justified on grounds of absolute necessity.
As a ramification or component of human will and instinct; which is indeed a founding bastion of all basic human rights: all such basic human rights, including that of privacy, need to be restricted or rolled back only on grounds of absolute necessity if the human life is to be given a scope and allowance to attain its potential in keeping with principles of natural justice.
To give an example, the issue before the Supreme Court of India relating to government’s sought after pervasiveness of Aadhaar card may be tested on the basis given above. Aadhaar card contains biometrics which undoubtedly are matters of claims of privacy. Since privacy, with its origins in human will and instinct, is a basic human right critical and necessary to the allowance of the potential of human growth and existence, or putting it differently – to the removal of hurdles or obstructions to the same; rights to privacy can be rolled back only on grounds of absolute necessity. The test would be to see therefore whether such increasing pervasiveness of Aadhaar card as sought by the government is justified or not on grounds of absolute necessity.
The requirement of a statute or legislation on privacy, therefore, is an absolute must. An absolute must to ensure the protection of this vital right. Given, for instance, the opening of floodgates of agreements on the internet which – leave aside the question of going through suitably on part of overwhelming number of human beings, given its legal technicalities and verbosity – is so on the spur of the moment thing when one is in the need of a particular application or a software or other requirements on the internet as to leave the overwhelming number of populace helpless without any real choice to disagree with such agreements; the duty of the government to step in, first by laying down a clear law on issues of privacy and, secondly, to set up a body or tribunal to aid and assist the human populace on their behalf by calling in question such agreements suo moto and providing suitable redressal against the same and other unlawful breaches of privacy – as per the law adequately defined through statute in such respect – is a must.