{"id":639,"date":"2023-08-20T07:40:17","date_gmt":"2023-08-20T07:40:17","guid":{"rendered":"https:\/\/projects-dev.itforchange.net\/online-violence-gender-and-law-guide\/?page_id=639"},"modified":"2023-10-25T19:23:52","modified_gmt":"2023-10-25T19:23:52","slug":"5-7-right-to-privacy","status":"publish","type":"page","link":"https:\/\/projects.itforchange.net\/online-violence-gender-and-law-guide\/module-5-rights-based-approach-to-online-gender-based-violence\/5-7-right-to-privacy\/","title":{"rendered":"5.7 Right to Privacy"},"content":{"rendered":"
Navigate:Online Gender-based Violence Judicial Resource Guide<\/span><\/a><\/span><\/div><\/div><\/div><\/div><\/div><\/div>
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The right to privacy means the right of a person to be left alone and be able to control their own life. In the digital age, privacy also means privacy over one\u2019s data and control over one\u2019s existence on the internet.1<\/a><\/sup>K.S. Puttaswamy v. Union of India,<\/em> (2017) 10 SCC 1, p. 504.<\/span> While the internet allows individuals to protect their identities and activities online due to the anonymity it offers, it also poses a significant threat to privacy as any information put on it lasts forever.2<\/a><\/sup>K.S. Puttaswamy v. Union of India<\/em>, (2017) 10 SCC 1, p. 529.<\/span><\/p>\n

Women and gender minorities, in particular, are subject to various forms of privacy violations on the internet, such as non-consensual intimate image distribution (NCIID), doxxing, hacking, etc. The lack of in-built privacy protections in digital technologies perpetuates online violence and can have real-life consequences for women and gender minorities. For instance, the circulation of non-consensual intimate images of a woman on social media can lead to reputational damage among friends and family, and loss of credibility in professional lives.<\/p>\n

Privacy entails that one\u2019s actions be free from surveillance by the state and private actors. However, digital technologies have made surveillance more pervasive by providing potent tools for large-scale data collection, continuous monitoring, and control of different aspects of an individual\u2019s life. The installation of CCTV cameras, ostensibly in the name of women\u2019s safety, ironically subjects them to constant surveillance by a state-sanctioned mechanism.3<\/a><\/sup>Bhandari, A. (2021). Feminist Perspectives on Space, Safety and Surveillance: Improving a Woman\u2019s Right to the City<\/i>. The Wire. https:\/\/thewire.in\/women\/feminist-perspectives-on-space-safety-and-surveillance-improving-a-womans-right-to-the-city<\/a> <\/span> Women also face surveillance from their partners, family, and even strangers in the form of control of their usage of electronic devices, monitoring of their online activities, and tracking of their movements through GPS trackers, spy softwares, etc.4<\/a><\/sup>International Women's Day: How surveillance is used to assert control.<\/i> (2015). Privacy International. https:\/\/privacyinternational.org\/news-analysis\/1483\/international-womens-day-how-surveillance-used-assert-control<\/a> <\/span><\/p>\n

Further, an integral part of a woman\u2019s privacy is the right to make autonomous decisions about her own body without violence, discrimination, or coercion.5<\/a><\/sup>United Nations Human Rights Special Procedures Working Group. (2017). Women\u2019s Autonomy, Equality, and Reproductive Health in International Human Rights: Between Recognition, Backlash, and Regressive Trends<\/em>. OHCHR. https:\/\/www.ohchr.org\/sites\/default\/files\/Documents\/Issues\/Women\/WG\/WomensAutonomyEqualityReproductiveHealth.pdf<\/a> <\/span> In digital spaces, it is the right of an individual to freely post pictures and videos of themselves, control who can view, capture, and share them, and not have to worry about the non-consensual sharing of their intimate images and videos.6<\/a><\/sup>Information Technology Act, 2000, Section 66E. <\/span> One example of how this right can be violated is through the offense of voyeurism, in which intimate images or videos are captured without the knowledge and\/or consent of the survivor and then shared with third parties or disseminated on social media. This is deeply invasive as the survivor is not in a position to consent to the images being taken and spread, resulting in a violation of bodily autonomy and privacy. Such violation can also occur when a woman consents to a specific person capturing her image, but does not consent to this person sharing the same image with others.<\/p>\n<\/div>\n<\/div><\/div>

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5.7.1 Constitutional source of the right<\/h3>\n

In the landmark Justice K.S. Puttaswamy v. Union of India and Ors<\/i>. (2017)<\/i> judgment,7<\/a><\/sup>K.S. Puttaswamy v. Union of India<\/em>, (2017) 10 SCC 1.<\/span> the Supreme Court recognized the right to privacy as sacrosanct under Article 21 of the Constitution. In defining the contours of privacy, the court moved beyond the narrow construction of privacy as a right against physical intrusion or invasion, to an expansive right that covers privacy of the body and mind, including decisions, choices, information, and freedom. In fact, Justice Rohinton Nariman defined the right to privacy to include three parts: \u201c(i) privacy that involves the person i.e. when there is some invasion by the State of a person\u2019s rights relatable to his physical body, such as the right to move freely; (ii) Informational privacy; and (iii) privacy of choice.\u201d8<\/a><\/sup>K.S. Puttaswamy<\/em> v. Union of India<\/em>, (2017) 10 SCC 1, p. 99. <\/span> The court noted that any restriction on the right to privacy of an individual must meet the three-fold requirement of:<\/p>\n

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  1. legality, which postulates the existence of law;<\/li>\n
  2. need, defined in terms of a legitimate state aim; and<\/li>\n
  3. proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them.<\/li>\n<\/ol>\n

    It is important to note that the right to dignity was the focus of the court in reading the right to privacy under Article 21 of the Constitution. Noting that the right to dignity requires the right to autonomy and to exercise one\u2019s choice, the court held that the right to bodily integrity is an important part of the right to privacy and made specific references to several judicial decisions around women\u2019s autonomy over their bodies and sexuality.<\/p>\n

    Following the Puttaswamy case, courts began to recognize privacy as a relevant factor in cases pertaining to online violence cases. In X v.<\/i> HTTPS : \/\/WWW.YOUTUBE.COM\/WATCH?V=IQ6K5Z3ZYS0 and Ors (2021)<\/i> the accused shot a demonstration video of the actress with complete frontal nudity, promising her the lead role in a movie in exchange, and then published on his YouTube channel without her consent.9<\/a><\/sup>X v. HTTPS:\/\/WWW.YOUTUBE.COM\/WATCH?V=IQ6K5Z3ZYS0 and Ors.<\/i> CS(OS) 392\/2021, I.As.10543\/2021, 10544\/2021, 10545\/2021 & 10546\/2021, order dated 23 August 2021, High Court of Delhi<\/span> Relying on the precedence set by the Puttaswamy judgment, the Delhi High Court held that the plaintiff in the case is entitled to be left alone and forgotten, and upheld her right to be protected from the invasion of her privacy by strangers. Similarly, in Guruvinder Singh<\/i> v.<\/i> State of Uttar Pradesh and Anr. (2021)<\/i>, the Allahabad High Court referred to the Puttaswamy judgment while condemning the act of the accused in capturing intimate images and videos of a woman without her consent.10<\/a><\/sup>Guruvinder Singh v. State of Uttar Pradesh<\/i>. and Anr., (2021) SCC OnLine All 748.<\/span> The court held that the survivor has the right to seek appropriate orders to have such offensive posts erased. In Subhranshu Rout v.<\/i> State of Odisha (2020)<\/i>, the Orissa High Court, hearing a case where the perpetrator shared non-consensual intimate images of a woman on social media,11<\/a><\/sup>Subhranshu Rout @ Gugul v. State Of Odisha,<\/i> BLAPL No.4592 OF 2020, judgment dated 23 November 2020, Orissa High Court.<\/span> referred to the Puttaswamy judgment and held that allowing these images to continue to exist on social media violates the survivor\u2019s modesty and her right to privacy. It also acknowledged the importance of relevant legislation to comprehensively address privacy issues. Finally, in its recent judgment in Mrs X v. Union of India and Ors (2023)<\/i>,12<\/a><\/sup>Mrs X v.<\/i> Union of India, 2023:DHC:2806, judgment dated 26 April 2023, Delhi High Court. <\/span> the Delhi High Court highlighted how the infringement of privacy lies at the core of gender-based violence.<\/p>\n

    Six years after the Supreme Court affirmed the right to privacy in the Puttuswamy<\/em>\u00a0case,13<\/a><\/sup>KS Puttaswamy v. Union of India, (2017) 10 SCC 1.<\/span> India enacted Digital Personal Data Protection Act, 2023 to safeguard the privacy of digital personal data of citizens. The Act, however, has received criticisms from various quarters on grounds of inadequate protection of individual personal data, exemptions given to private actors, excessive power given to state actors, and lack of meaningful safeguards against overbroad surveillance.14<\/a><\/sup>Mathi, S. (2020). Fifteen major concerns with India\u2019s Digital Personal Data Protection Bill, 2023<\/em>. Medianama. https:\/\/www.medianama.com\/2023\/08\/223-major-concerns-india-data-protection-bill-2023\/<\/a> ; Malhotra, G. (2023). India\u2019s data protection law does little for privacy while bolstering the state\u2019s surveillance powers<\/em>. Scroll.in. https:\/\/scroll.in\/article\/1054722\/indias-data-protection-law-does-little-for-privacy-while-bolstering-the-states-surveillance-powers<\/a> <\/span><\/p>\n<\/div>\n<\/div><\/div><\/div>

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    5.7.2 International sources of the right<\/h3>\n

    5.7.2.1 Conventions<\/h4>\n
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    1. Universal Declaration of Human Rights (UDHR)15<\/a><\/sup>Universal Declaration of Human Rights<\/em> (entered into force 1948).<\/span> and International Covenant on Civil and Political Rights (ICCPR)16<\/a><\/sup>International Covenant on Civil and Political Rights<\/em>, opened for signature 1966 (entered into force 23 March 1976).<\/span>:
      \nArticle 12 of the UDHR declares that everyone has the right to legal protection against interference in one\u2019s privacy, family, home, and correspondence, and attacks on one\u2019s honor and reputation. Article 17 of the ICCPR also guarantees the right to privacy in similar terms.<\/li>\n
    2. European Convention on Human Rights17<\/a><\/sup>European Convention on Human Rights<\/em>, opened for signature 1950 (entered into force 3 September 1953).<\/span>:
      \nArticle 8 of the Convention recognizes everyone\u2019s right to respect for their private and family life, and their home and correspondence. Interference with this right can only be in accordance with law and if it is necessary in a democratic society in the interests of national security, public safety, prevention of disorder and crime, or protection of health or morals. The Supreme Court referred to this Article repeatedly in the Puttaswamy case.<\/li>\n
    3. American Convention on Human Rights18<\/a><\/sup>American Convention on Human Rights: Pact of San Jos\u00e9, Costa Rica<\/em>, (entered into force on 22 November 1969). https:\/\/treaties.un.org\/doc\/publication\/unts\/volume%201144\/volume-1144-i-17955-english.pdf<\/a><\/span>:
      \nAccording to Article 11 of the Convention, no one shall be subjected to arbitrary or abusive interference in their private life, family, home, or correspondence, or to unlawful attacks on their honor or reputation. Everyone has the right to the protection of law against such interference or attacks. This Article and the decisions of the American Court of Human Rights related to it were also referred to by the Supreme Court in the Puttaswamy case.<\/li>\n
    4. Asia Pacific Economic Cooperation Privacy Framework19<\/a><\/sup>Privacy Framework, APEC. ISBN 981-05-4471-5. https:\/\/www.apec.org\/docs\/default-source\/Publications\/2005\/12\/APEC-Privacy-Framework\/05_ecsg_privacyframewk.pdf<\/a> <\/span>:
      \nThe objective is to prevent the misuse of personal information and the consequent harm to individuals, while upholding their right to privacy of personal information.      20<\/a><\/sup>Principle I. Privacy Framework, APEC. ISBN 981-05-4471-5. https:\/\/www.apec.org\/docs\/default-source\/Publications\/2005\/12\/APEC-Privacy-Framework\/05_ecsg_privacyframewk.pdf<\/a> <\/span> To that end, it calls for privacy protections, including self-regulatory efforts, education and awareness campaigns, laws, regulations, and enforcement mechanisms, that safeguard individuals from the wrongful collection and misuse of their personal information.21<\/a><\/sup>Principle I. Privacy Framework, APEC. ISBN 981-05-4471-5. https:\/\/www.apec.org\/docs\/default-source\/Publications\/2005\/12\/APEC-Privacy-Framework\/05_ecsg_privacyframewk.pdf<\/a> <\/span> Further, it calls upon personal information controllers, such as technology companies, to protect the personal information they hold against risks such as loss, unauthorized access, destruction, use, modification, and disclosure.22<\/a><\/sup>Principle VII. Privacy Framework, APEC. ISBN 981-05-4471-5. https:\/\/www.apec.org\/docs\/default-source\/Publications\/2005\/12\/APEC-Privacy-Framework\/05_ecsg_privacyframewk.pdf<\/a> <\/span><\/li>\n<\/ol>\n

      5.7.2.2 UN resolutions<\/h4>\n
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      1. The Promotion, Protection, and Enjoyment of Human Rights on the Internet: Resolution adopted by the Human Rights Council on 13 July 2021 A\/HRC\/RES\/47\/1623<\/a><\/sup>The promotion, protection and enjoyment of human rights on the Internet : Resolution. (2021). Human Rights Council A\/HRC\/RES\/47\/16. https:\/\/digitallibrary.un.org\/record\/3937534?ln=en<\/a> <\/span><\/li>\n
      2. Resolution adopted by the Human Rights Council on 26 September 2019 on the Right to Privacy in the Digital Age A\/HRC\/RES\/42\/1524<\/a><\/sup>The Right to Privacy in the Digital Age: Resolution. (2019). Human Rights Council. A\/HRC\/RES\/42\/15. https:\/\/digitallibrary.un.org\/record\/3837297?ln=en<\/a><\/span><\/li>\n
      3. Resolution adopted by the General Assembly on 16 December 2015 on the Outcome document of the high-level meeting of the General Assembly on the overall review of the implementation of the outcomes of the World Summit on the Information Society A\/RES\/70\/125.25<\/a><\/sup>Outcome document of the high-level meeting of the General Assembly on the overall review of the implementation of the outcomes of the World Summit on the Information Society. (2016). Human Rights Council. A\/RES\/70\/125. https:\/\/unctad.org\/system\/files\/official-document\/ares70d125_en.pdf<\/a><\/span> This resolution calls upon states to take appropriate measures against arbitrary or unlawful interference with privacy.<\/li>\n
      4. Resolution adopted by the General Assembly on 16 December 2020 on the Right to Privacy in the Digital Age A\/RES\/75\/17626<\/a><\/sup>The Right to Privacy in the Digital Age: Resolution. (2019). Human Rights Council. A\/HRC\/RES\/42\/15. https:\/\/digitallibrary.un.org\/record\/3837297?ln=en<\/a><\/span><\/li>\n<\/ol>\n

        5.7.2.3 Declarations<\/h4>\n
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        1. The European Declaration on Digital Rights and Principles for the Digital Decade27<\/a><\/sup>Declaration on European Digital Rights and Principles<\/em>. (2022). European Commission. https:\/\/digital-strategy.ec.europa.eu\/en\/library\/european-declaration-digital-rights-and-principles<\/a> <\/span>:
          \nThis Declaration proclaims that everyone has the right to privacy and protection of personal data, which includes the ability to control how their personal data is used and with whom it is shared.          28<\/a><\/sup>Declaration on European Digital Rights and Principles<\/em>. (2022). European Commission, Para 17. https:\/\/digital-strategy.ec.europa.eu\/en\/library\/european-declaration-digital-rights-and-principles<\/a> <\/span> Further, it also declares the right of an individual to confidentiality of their communication and the information on their electronic devices and the right to not be subjected to unlawful online surveillance, pervasive tracking, or interception measures.29<\/a><\/sup>Declaration on European Digital Rights and Principles<\/em>. (2022). European Commission, Para 17. https:\/\/digital-strategy.ec.europa.eu\/en\/library\/european-declaration-digital-rights-and-principles<\/a> <\/span>To realize and secure these rights, the Declaration calls upon member states to take measures to ensure that everyone has effective control over their personal and non-personal data, protect communication from unauthorized third party access, prohibit unlawful identification and unlawful retention of activity records, etc.30<\/a><\/sup>Declaration on European Digital Rights and Principles<\/em>. (2022). European Commission, Para 19.a-d. https:\/\/digital-strategy.ec.europa.eu\/en\/library\/european-declaration-digital-rights-and-principles<\/a> <\/span><\/li>\n<\/ol>\n

          5.7.2.4 International advocacy efforts<\/h4>\n
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          1. Feminist Principles on the Internet31<\/a><\/sup>Feminist Principles of the Internet<\/i>. (2016). Association for Progressive Communications. https:\/\/feministinternet.org\/en\/principles<\/a><\/span>:
            \nThis document lays down certain important principles in relation to privacy and data protection for a feminist internet. The privacy and data principle affirms the right to privacy and the right to full control over personal data and information online at all levels. It also calls upon states and private companies to refrain from using data for profit and manipulating online behavior.            32<\/a><\/sup>Privacy and Data, Feminist Principles of the Internet<\/i>. (2016). Association for Progressive Communications. https:\/\/feministinternet.org\/en\/principles <\/a><\/span> The consent principle affirms women\u2019s agency and their right to make informed decisions on what aspects of their public or private lives to share online.33<\/a><\/sup>Consent, Feminist Principles of the Internet<\/i>. (2016). Association for Progressive Communications. https:\/\/feministinternet.org\/en\/principles<\/a><\/span> Further, the anonymity principle recognizes and affirms the right to be anonymous and its importance in enabling freedom of expression online and safety for women and queer persons affected by discrimination.34<\/a><\/sup>Anonymity, Feminist Principles of the Internet<\/i>. (2016). Association for Progressive Communications. https:\/\/feministinternet.org\/en\/principles<\/a><\/span><\/li>\n
          2. United Nations Population Fund: Bodyright35<\/a><\/sup>A Copyright for the Human Body, Body Right<\/em>. (n.d.). UNFPA. https:\/\/www.unfpa.org\/bodyright<\/a><\/span>:
            \nThe United Nations Population Fund recognizes that the non-consensual sharing of intimate images violates the privacy, dignity, and autonomy of individuals, and leads them to experience fear, anxiety, loss of self-esteem, and a sense of powerlessness. It proposes the concept of bodyright, urging that the images of our bodies be given the same respect and protection online as the copyright protection provided to intellectual property.<\/li>\n<\/ol>\n<\/div>\n<\/div><\/div><\/div>

            Footnotes<\/h3>\n
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