Practice Area

Cyber tort as key factor for the infringement of Right to privacy

Author: Anagh Tiwari

Privacy is deeply rooted in the history and religion of India. Several religious scriptures, texts and classical right- ups recognize the importance of privacy. There is recognition of privacy in the Quran and the sayings of Prophet Mohammed. The Bible has numerous references to privacy and The Jewish law has long recognized the concept of freedom from being watched. Privacy is an important factor surrounding our life, way we live and what we do.

The growth in technology has made the concept of privacy more of a growing concern. Individuals are engaged in many daily transactions that are recorded by some means or the other means. Sometimes, information about these transactions may be useful to someone else. There are numerous examples of situations in which technology, especially in an e-commerce environment, has been used as a tool to abuse individual’s privacy and leave their personal information vulnerable. One example of IT practices which lead to potential privacy abuse is the use of data collection technology. When using the Internet, the individual leaves behind a trail of information which can be collected and then stealing one’s identity is a child’s play.

One such prominent examples of cyber tort is Hacking – it includes theft of information, passwords, and of credit card numbers. Once the hacker has gained access to a computer system they can browse through files, read private information and inflate user privileges and intrude into one’s privacy. So the proper disclosure by individuals needs to be monitored to escape these types of crimes. People generally in their youth age become susceptible to all the misdemeanours. Many people don’t even know what remedies are available nor is there any violation of law. This could be increased by channelizing this information in educational institutions against such offenders.

A credit card fraud which involves the illegal use of credit card and debit card for the benefit of the wrongdoer is a serious cyber tort. Credit card fraud is done by gathering the details of credit/debit cards and then making illegal purchases and using it for unlawful transactions.  Sale of such information to counterfeiters of credit cards is extremely lucrative, and difficult to detect and punish. Apart from this, assets in data format, if available by remote access methods, allows wrong-doer to commit fraud without even entering the premises. This leads to the infringement of privacy of the individual further infringing his/her fundamental rights with respect to constitution of India. Proper control of such information is also in the hands of government agencies and companies which can restrict such information related to the individual by proper disclosure.

Another infringement could happen through trafficking and distribution of obscene materials which includes explicit writing, picture, or other material intended to arouse sexual desire published in the electronic form or any material which appeals to the prurient interest of the individual’s right to privacy. It includes pornographic websites; pornographic magazines produced using computers and internet.

This form directly leads to infringement which is Cyber stalking and Cyber bullying through illegal use of internet to harass (stalk) an individual or a group of individuals or an organization. It may include false accusations, monitoring, making threats, identity theft, and damage to data or equipment, or gathering information in order to harass. Cyber bullying includes the illegal use of internet or electronic methods to post images or send texts to threaten, harass, humiliate or embarrass a minor or a group of minors. It includes threats, sexual remarks, hate speech, ganging up on victims by posting false statements as fact for humiliating them. Threats are also sent through e-mails and other similar form of internet communication. The main difference between cyber stalking and cyber bullying is that cyber stalking involves adult while the later is a wrong against a minor.  Cyber stalking occurs when a person is followed and pursued online. In other words, their privacy is invaded.

For example if a personal video or photograph of an individual is published on the web, which is objectionable, then the victim will be very much troubled and he will try to hide it from others because he may feel ashamed as his privacy has been hampered. Article 12 of UDHR (Universal Declaration of Human Rights) also recognizes right to privacy. As India is a signatory to this declaration we can adopt these principles to protect the privacy of the individuals.

Policies such as The California Assembly Bill 86, 2008 gives school administrators the authority to discipline students for bullying others offline or online can be adopted . The Harassment Act makes a civil remedy available to any victim of harassment. It could be acted as initiative in the schools and colleges for protecting an individual’s right. It makes the most serious types of harassment criminal offences. It empowers the Court to make orders to protect victims who are not covered by domestic violence legislation, and provides effective sanctions for breaches of the criminal and civil law relating to harassment.

There are certain loops as many matters related to cyber tort don’t come in the eyes of the proper authorities. Also failure from the side of authorities in creating a good database of cases which could further help in solving cases. We should aim at creating a legal aid program for creating awareness amongst youths. Cyber wrongs and Contraventions like Phishing, Spamming, Cyber extortions, Compromised e-mails, Cyber Terrorism are not included till now which have further narrowed our concept. We are still not able to create liability for the offenders who illegally block sites and their counterparts who help in these kinds of misdemeanors.

It could be concluded that these areas are less covered under right to privacy under constitution of India and hence making it a civil offence decreasing the punishment. It could be said that these are crimes to the individual life and personal liberty, thus hampering him and society at large as these necessary implications should form an integral part of the privacy bill which is yet unknown.