Working on data protection framework, govt. tells Supreme Court

The Centre informed a Constitution Bench of the Supreme Court that the Telecom Regulatory Authority of India (TRAI) is working on a new regulatory regime to ensure online data protection, and it will be ready by Diwali.

Attorney-General Mukul Rohatgi submitted before the five-judge Bench led by Justice Dipak Misra that with online transactions and presence increasing by the day, data protection needs to be fortified.

“Data protection and privacy is all the more important now because the less literate use apps like BHIM and PayTM for cash transactions. So, government has been actively mulling on an overarching data protection framework. TRAI has started work,” Mr. Rohatgi submitted on Tuesday.

Mr. Rohatgi illustrated that the Internet has a tendency to gauge the pattern of our online searches. “If you search for a Taj in Bhubaneswar, Google will give you other options of hotels similar to the Taj,” the Attorney-General submitted.

Right to be forgotten

The AG explained the need for online privacy in the light of 'right to be forgotten' of an individual. This right, also called the 'right to be erased', is one of the major casualties in the Internet age, Mr. Rohatgi said. It deals with the person's right to wipe out his past demeanours for which he has already suffered punishment.

“The 'right to be forgotten' is practised in the U.K., the U.S. and the E.U. A person commits a minor felony and is punished at the age of 20. But if a search is done on him in the Internet, the information about this felony is the first to pop up on the screen despite the fact that in the real world it is long past and forgotten,” Mr. Rohatgi submitted.

The debate was part of a Constitution Bench hearing for a declaration that a 2016 policy of instant messaging app – WhatsApp – to give Facebook access to information and personal details shared by millions of its users was a violation of their privacy and free speech.

The Bench also comprised Justices A.K. Sikri, Amitava Roy, A.M. Khanwilkar and M.M. Shantanagoudar.

Mr. Rohatgi said the hearing should be deferred for another two months, by which time there may be new laws on online privacy.

Appearing for the petitioners, who are two students, senior advocate Harish Salve argued that the 2016 policy formulated by WhatsApp is unconscionable and unacceptable.

Mr. Salve said the policy “maladroitly affects the freedom which is a cherished right of an individual under the Constitution”

Senior advocate Kapil Sibal strongly objected to Mr. Salve's contention, submitting that WhatsApp does not share data, voices and messages, so no part of the content which is exchanged between two individuals is ever revealed to third party. Mr. Sibal said Mr. Salve's submissions were wrong.

Senior advocate Siddharth Luthra, for Facebook, joined Mr. Sibal to add that their actions were compliant with Information Technology Act of 2000 and in consonance with the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011.

The Bench asked Mr. Salve to formulate his propositions and scheduled the next hearing by April 24.