ERT in contravention to existing privacy laws?

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ERT in contravention to existing privacy laws?

Sunday, 12 September 2021 | Majid Durrani

Viewed from the prism of important legislations and laws in the realm of privacy and rights these use cases are problematic. Universal Declaration of Human Rights bestows international human rights and is given binding legal force through the International Covenant on Civil and Political Rights (ICCPR). Some of the States signing up and using ERT are signatories of these UN and regional treaties. Usage of ERT which is built on dubious premises is violative of the very human rights that these signatories signed up to protect because ERT is being used to provide or deny access to certain services or opportunities and the denialand/ or provision of such rights on the basis of ERT is not consistent with international human rights standards.

General Data Protection Regulation (GDPR) the current gold standard of privacy legislation was introduced as regulation under EU law in May 2018 and was developed to be comprehensive legislation covering data protection and privacy for all individual citizens of EU and EEA (European Economic Area), whether they are resident in the EU or not. It also covers biometric data. Biometric data as defined under GDPR means, “personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person.” Further, important point to be noted is that Biometric data falls under “special categories of personal data” which can only be processed where the data subject has given explicit consent and secondly the data collection is limited by the principles of lawfulness, fairness and transparency, purpose limitation and data minimisation. On all these yardsticks the ERT use cases will fail to pass muster.

Closer home, the umbrella data protection bill, “Personal Data Protection Bill” which is still to be tabled in the Parliament, defined ‘biometric data’, which is classified as sensitive personal data, is defined as, “facial images, fingerprints, iris scans, or any other similar personal data resulting from measurements or technical processing operations carried out on physical, physiological, or behavioural characteristics of a data principal, which allow or confirm the unique identification of that natural person”. This is similar in definition and intent to the GDPR.

The landmark judgment on privacy, Justice K.S.Puttaswamy (Retd) vs Union of India, by the Hon’ble Supreme Court of India, (privacy Judgment) has given a very wide and inclusive interpretation to the meaning of ‘privacy’ of an individual. The Privacy judgment declared privacy to be a fundamental right and an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution guaranteed under the Constitution of India. Further the Judgment talked about the variousfacetsthat make up the types of privacy which includes behavioural privacy and informational privacy meaning the ability to control the extent of access even while conducting publicly visible activities and an interest in preventing information about the self from being dissemination; and controlling the extent of access to the information, respectively. Thus, applying the import of behavioural and informational privacy it would mean that ERT use cases would be flirting with privacy even when measured against the current Indian jurisprudence on privacy.

The Privacy judgment further laid down in no uncertain terms that any intrusion into privacy, at least by the State, has to satisfy the three-pronged test of legality, necessity and proportionality. ERT use cases in the present form seem to be far from passing this three-pronged test.

The writer is a Technology and Commercial Lawyer, with keen interest in law and emerging technologies.

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