By Krishna Jha
Lok Sabha passed Data Protection Bill amid Opposition protest. It was passed on August 7, 2023 and now Rajya Sabha has also passed it despite opposition boycott. The law would allow the government to have access to the privacy of any citizen. It will also be able to enforce mass censorship and have right to engage in surveillance. The right to privacy was declared six years back as fundamental right for the citizens of India by the Apex Court unanimously. But it is the government apparatus that the bill protects while the entire masses have to face the sword hanging on them for always, ever. No one can prevent the government from encroaching into their most intimate personal affairs.
The media has always been considered the fourth estate, to which the government has to be answerable. But in section 36 of the Bill, it is the government itself that has all the right to ask any citizen, or public, to offer personal information. This right would eventually get media also under its control. There is also every possibility that the bill would stretch over to what is called “private information” and therefore the public officials would have the right to conceal information about their activities by claiming that these are “private matters”, stated the Editors’ Guild. The Bill has all the contents included that was in the original version of the legislation in November, 2022, including those ones that were opposed by privacy experts. The Centre has even virtual censorship powers. The Bill also allows the Central government to exempt “any instrumentality of the state” from adverse consequences citing national security, relations with foreign governments, and maintenance of public order, among other things.
So far as in laying down consent norms for entities’ collecting personal data of individuals, the Bill allows for a way out for certain “legitimate uses,” both by the government itself, and private entities.
As per the final version, the Centre can process data of citizens without expressly seeking their consent for national security reasons and to offer other services such as subsidies, benefits, certificates, licence or permit. Private companies have been afforded the privilege to deal with employment-related matters, including corporate espionage.
For example, Clause 12(3) enables a person who consented to share personal data with a news publication/journalist to exercise right to erasure, and have personal information and/or the news article removed even if public interest is greater. More often than not, those who want to be forgotten are the ones who need to be remembered. It may be mentioned here that Clause 37(1)(b) allows the Union government to censor information without offering any specified grounds. Thus censorship can be practiced unbridled.
Additionally, Clause 37(1)(b) also allows the Union government to censor information without any clearly specified grounds. The government has already acquired censorship powers beyond the existing provisions under Section 69A of the Information Technology Act, which itself operates without any transparency and public accountability, thereby restricting freedom of expression and is an attack on the freedom of the press.
Again, the Clause 3(c)(ii) exempts publicly available personal data from the provisions of the bill, meaning that artificial intelligence and surveillance/profiling companies can use automated tools to scrape and profile data of every Indian citizen from their social media profiles, as well as from news publications, without their consent. This is particularly worrying when you consider the rapid deployment of CCTVs in the country, along with the increasing sophistication of facial recognition systems. It is dangerous because it allows the usage of automated tools to profile citizens, including journalists, and also enables the scraping of content of media publications and reports about individuals, which amounts to a violation of copyright. It has been a time when reforms in surveillance are imperative.
At present, surveillance systems like the Centralised Monitoring System enable the Indian government surveillance of phone calls and messages. Section 17(4) makes exemptions for the Union government and its ‘instrumentalities’ to retain personal data for longer periods of time, even when the individual has withdrawn their consent or demanded to erase their data. Section 36 also empowers the Union government to call for information from any data processing private entity, thereby converting every private company into an instrument of surveillance, thus compromising not just the privacy of journalists and their sources, but the privacy of all citizens of India. This is a violation of safeguards provided to citizens under the Puttaswamyvs Union of India judgment by the Supreme Court of India, and the Bill needs to be amended to include clauses for surveillance reform. There is complete lack of any exemptions for the journalists.
Usually journalists need urgently to protect personal data, and there are those facts that are sought to be kept away. But then there are those also that need to be made public, in public interest. An earlier version of the Bill drafted by the Justice Srikrishna Committee took this into account while recommending exemptions for journalists, saying that journalists would find it very difficult to access information if they had to adhere to the legislation, and that making consent always mandatory for the processing of personal information would mean that information unfavourable to certain individuals “would simply not get published.” The current version of the Bill, however, makes no exceptions for public interest journalism, and as such, opens up media organisations to legal risks when they report on activities of certain individuals. This will hamper journalistic activity and greatly weaken the fourth estate.(IPA Service)