Data protection is considered to be the most debatable topic rolling in today's
world especially in Indian context. Although it is the most crucial topic but
sadly it is nether being safeguard by any separate legislative support .The only
and most prior of this very article is to make the readers understand the
general and legal context behind the behind such laws which is primary being
understand by each and person in the society who is using social media platforms
and other modes of of entertainment on the internet.
What Is Data
Data can be defined as the collection of all the information and material
produced and obtained in the the performance of services which consists of
survey plans , charts, recordings (video and sound ) , pictures , curriculum ,
graphic representations, computer programs ,and printouts , notes, finished or
unfinished documents which can be utilised to form the future of the entity or
Data can be of two types:
Personal DataIt is the private information of the individual which can be used to
trace/monitor him online . it is any information related to a identified
individual . This information should not be disclosed to any third party.
Personal data includes medical , biological , financial , and residential
Everything other than personal data is non-personal data. It is the general
information of an individual which can get the organizations to make strategies
to make profits. Data that is collected by the government in course of publicly
What is privacy
The meaning of privacy changes according to its legal context. It can be said as
the right of individuals concerning their personal information. It is freedom
from unauthorized intrusion.
What is data privacy
Users have the right to control their data, they have a right to limit the data
a website or an organization collects. Data privacy is the regulation of a
user's data like history, financial, and property information i.e., private
information which can be used to monitor, trace the identity of the user from
being accessed by anyone or any third parties on a website or an online
platform. It regulates the processing of data and controls it from being
accessed by a third party online.
It is simply the right usage of data by a website or a platform. Internet users
trust the intermediaries that the information collected by a website is
protected and confidential. Trust is an important factor in a relationship, the
relationship between the internet user and the intermediary should be
trustworthy else it will be the exploitation and disclosure of the individual's
web life and his privacy.
In this digital era, there is no specified limit declared by the Indian
legislature on the collection of data by a website or an organization. There are
some types of data privacy listed herein.
Types of data privacy:
usage and collection of data.
The information about a user's residence and cost of living should be kept
private when collected.
Medical privacyThe medical information about a user should not be disclosed to any other person
other than the organization and the user. The doctor-patient confidentiality
should be maintained or it amounts to a breach of medical privacy.
Financial privacyFinancial privacy is the collection of financial information by a website. If it
is not stored and protected, it leads to fraudulent use of credentials by
Advantages of data privacy
- Prevent the Government from spying on the citizens;
- Ensure those who steal and misuse data are held accountable;
- Maintains boundaries;
- Ensure the control over personal data;
- Protect freedom of speech and expression.
Consequences of data disclosure
Data, if disclosed, can destroy a person's life. Education records and
biological information also fall under personal data. Hackers can use personal
data to defraud, buy illegal items using the credentials of the individual,
which makes him accountable for the transaction, if not doubted early. Some
websites sell information that results in unwanted advertisements, marketing. If
a person is being tracked, monitored online, it prevents his right to freedom of
speech and expression which is granted as a fundamental right under Article
19(1)(a) of the Indian Constitution. What is the reality of data privacy?
The reality of data privacy
Achieving data privacy is hard for an individual. In a retrospective view, it
can be achieved by regulating organizations in the matter of data collection and
data storage. A lot of negatives prevail on privacy and regulation. In reality,
not every organization maintains confidentiality. Confidentiality of data and
measures of data security is essential in large organizations. But, small-scale
organizations are not up to the mark in confidentiality and accountability.
Since the last decade, we've seen many data breaches and hacks of major
companies' data like Facebook, Mobikwik, etc. The user data stored in the
servers are being stolen and sold on the dark web.
More than 1.1 million cyber-attacks were reported across India in 2020. This was
a significant increase compared to the previous year's nearly 400 thousand. The
country was amongst the top five with the most number of cyber security
incidents that year. Furthermore, India's ranked third in terms of internet user
Localization is the act of adapting the procedure within its boundaries.
It is the act of storing data on any device present within the borders of a
country. If the data is stored within the country, there would be no barriers or
permissions required to access the information. To access information stored in
the foreign cloud, Mutual Legal Assistance Treaties should permit the country.
Now, most of this data is stored in a cloud existing outside the country.
Localization of data is an important factor of national security, as data will
be stored in a server within the country and can be accessed anytime and can
keep it safe from foreign surveillance.
The entities around the world scrambled to comply with the RBI's deadline for
localization of all sensitive data belonging to Indian users of various digital
payment services. What is the importance of data security?
Data security is the protection given to the individual from unauthorized access
from third parties and corrupted sites which steal information. Data Security
ensures the integrity of data and helps in preventing malicious attacks and
unauthorized entries into the user's personal information.
Examples: Password of an individual's internet banking account, the encryption
provided by the site are some examples of data security.
Should you pay extra for data security
It is immoral to sell security measures for money. Privacy is an individual's
right protecting the same is the duty of an organization to provide every user
with the same level of security. Some commercial companies demand users to pay
extra for protection from fraudulent and unauthorized transactions.
Security breach: sale of data on dark web
In a major data security lapse by a private entity, 8.2 terabytes — the largest
such breach in India — consisting of personal information of 3.5 million users,
allegedly of payments platform MobiKwik, is up for sale on the dark web.
While several independent cybersecurity researchers have been reporting about a
likely data breach of MobiKwik's servers as early as February, French security
Difference between data privacy and data security
Data Security is different from Data privacy. Data privacy regulates the flow of
user data by a website or an organization whereas data security ensures the
protection from unwanted access, Preventive measures of a data breach can be
included in data security. In simple words, it is what is being protected and
how it is being protected. To achieve data security organizations use firewalls,
encryption technologies. Letting the user know what data is being collected, and
thereby giving him complete transparency about his data is the goal of data
privacy. Privacy concerns are impossible to address without first employing
effective security practices.
A process of de-identifying is an example for provisions of data
A major data security technology measure is encryption, in which digital data,
software/hardware is encrypted and rendered unreadable to unauthorized users and
GoDaddy reports data breach: Data of 1.2 million customers impacted
Nearly 1.2 million active and inactive Managed Word Press customers had their
email address and customer number exposed,adds the filing. The reason email
addresses are being stolen is a serious issue. It can increase the risk of phishing attacks where cybercriminals send emails to users in an attempt to
trick them into leaking their other account details.
In India, there is no legislative framework approved on Data Privacy.
Right to privacy: A fundamental right
Article 21 is the heart and soul of the constitution and the heart of
fundamental rights. The judicial intervention said that the rights are included
within it, the scope of Article 21 is not narrow and restricted. It has been
widening by several judgments.
The court included the following rights that are
covered under Article 21 based on its judgments:
- Right to privacy
- Right to shelter
- Right to go abroad
- Right against custodial death
- Right to pollution-free water and air
- Right against solitary confinement
- Right to social justice and economic empowerment
- Right against handcuffing
- Right against delayed execution
- Right against public hanging
- Protection of cultural heritage
- Right of every child to full development
- Right to health and medical aid
- Right to education
- Protection of under-trials.
In the case of Justice K.S.Puttaswamy v. UoI
(2017) 10 SCC, The Advocate General
of India responding on behalf of the union, made a statement that the right to
privacy is no fundamental right and was not mentioned anywhere, according to the
constitution. The apex court unanimously held that the right to privacy is
protected as a fundamental right and falls under Article 21 of the Indian
In this case, Justice K.S.Puttaswamy (retd. High Court judge)
challenged the validity of the Aadhar Act and the usage of the personal data of
individuals i.e., biometrics and other personal data. The court held that the
collection is valid and will only be used for the welfare of the individual and
the nation as it narrows down the scope of corruption in the nation.
Right to be forgotten
The right to be forgotten is the right of an individual to remove personal data
from internet histories and other intermediaries, middlemen. The Honorable
court, recently held that the right to be forgotten is a subset of the right to
Section 43(A) Of Information Technology Act Of 2000 runs as follows:Vinit Kumar v CBI and Ors
In this case, calls of businessmen were intercepted on the order of the Union
home ministry, against which the petitioner challenged the orders in the High
court of Bombay, i.e., the infringement of the right to privacy. The court held
that there was no lawful justification for the orders and set them aside.
There are 2 sections relating to data disclosure and failure to protect data, in
the Information Technology Act, 2000.
43A. Compensation for failure to protect data
Where a body corporate, possessing, dealing, or handling any sensitive personal
data or information in a computer resource which it owns, controls or operates,
is negligent in implementing and maintaining reasonable security practices and
procedures and thereby causes wrongful loss or wrongful gain to any person, such
body corporate shall be liable to pay damages by way of compensation to the
person so affected.
72A. Punishment for disclosure of information in breach of lawful contract
Save as otherwise provided in this Act or any other law for the time being in
force, any person including an intermediary who, while providing services under
the terms of a lawful contract, has secured access to any material containing
personal information about another person, with the intent to cause or knowing
that he is likely to cause wrongful loss or wrongful gain discloses, without the
consent of the person concerned, or in breach of a lawful contract, such
material to any other person, shall be punished with imprisonment for a term
which may extend to three years, or with fine which may extend to five lakh
rupees, or with both.
The Act also provides that a body corporate (any company, firm) must provide a
- a clear, accessible statement on its practices and policies
- the type of information collected
- security measures
- Purpose of collection of data and the storage of data
- the disclosure policy for the information
To make a strong law satisfying the consumer, there is a requirement of
- Data Collection and rights to share: No information should be disclosed
to any third party
- Consent: No information should be collected without the consent of the
- Data Minimization: Collect what is needed and specify why it is needed.
- Proper use of data: Using data is the right way and being ethical.
- Accountability of the controller of data.
Data Privacy and Personal Data Protection Bill, 2019
The court made a special committee to produce a bill on personal data, The Sri
Krishna Committee. The committee headed by retired Supreme court judge BN
Krishna submitted a report on July 27, 2018. The bill of Personal Data
Protection,2019 was framed by the government and was immediately sent to Joint
Parliamentary Committee (JPC)and is not implemented yet, the committee said that
the framework is not precise and is not suitable for the dynamic environment of
It took 5 extensions since 2019 to approve the made bill. The PDP, 2019 clause 35gives shelter to the government to access any information of
any user and even trace information of the people of the nation. The government
had absolute powers to track people and their information online (if necessary).
There should be a legislative framework on the matter as it has been becoming a
concern of national security.
The PDP Bill proposes the concepts of a 'data
fiduciary' and a 'data processor'. A 'data fiduciary' and a 'data processor' are
equivalent to the concept of controller and processor under the GDPR. The bill
gives protection to individuals by penalizing entities for data collected
without user consent. The PDP Bill will not only apply to persons in India but
also to persons outside India concerning business conducted in India, the
offering of goods or services to individuals in India, or the profiling of
individuals. The bill also specified provisions regarding the holding of user
What is the status of the PDP Bill, 2019
The Joint Parliamentary Committee had been deliberately working on the report
since 2019, the committee was debating about several clauses and provisions,
mainly Clause 35 of the bill, exemption of Government on the public order, and
national interest. After 2 long years, On 22 November 2021, the committee
adopted the bill and approved to send the bill to the parliament in the next
The committee retained the exemption clause with a minor change, and
even if the state is empowered to exempt itself from the application, it shall
only be used under exceptional circumstances. The committee had also recommended
that all social media platforms should have an office set up in India and a
media regulation authority to regulate the flow of content. There are prevailing
arguments that it has no adequate safeguards to protect the right of privacy of
an individual. The committee had also stated that there is no provision related
to the collection of data by hardware manufacturers.
Major Breaches of Information Privacy
- It was created by the NSO(N stands for Niv, S stands for Shalev and O stands
for Omri, the founders) group of Israel, it is known for its products of
zero-click surveillance and faced many suits due to those products. Apps like
Whatsapp, Facebook use end-to-end encryption by which they can't be traced or
tracked. But, the product made by the NSO group called Pegasus, surpasses the
encryption barrier just by making a call to their number and it can delete the
call after done, it also allows the user to read the encrypted messages, calls.
Pegasus spyware enters through a backdoor into any device and the owner of the
device will not know the existence of spyware. Once installed, it uses a
zero-click exploit, can harvest any data from the device and the user gains full
control over the data. An international media consortium had reported that over
300 verified Indian mobile phone numbers were on the list of potential targets
for surveillance using Pegasus spyware. The NSO group specified that the spyware
was built solely for governments and law enforcement agencies to gain useful
hidden information, this fact alone does not guarantee the individual's privacy.
- The bench of the apex court had reserved an order on September 13, it
wanted to know whether the Centre used the Pegasus spyware through illegal methods to
snoop citizens. The pleas seeking independent probes are related to reports of
alleged snooping by government agencies on eminent citizens, politicians by
using Israeli firm NSO's spyware Pegasus. There should be a deeper probe into
this matter, there should be an action as soon as possible as it might be a
matter of national security.
- Apple sues NSO group, reveals new details on how Pegasus was used for
attacking some iPhone users.
- Joker Malware is malware that is created to steal private information like
credit card and debit card data. Joker malware silently enters a device when a
user installs an application infected by the malware, this malware is dangerous
and has infected over 200 applications on the Google play store. Google took
steps and deleted the apps that were exposing the users' data to malware. On 21
November 2021, the malware resurfaced and affected 15 applications on the play
store. Reports suggest that the Joker malware steals money from affected users
by subscribing to unwanted paid subscriptions without their consent. It
simulates the device with advertisements without knowledge of the user and then
steals the victim's SMS messages including OTP(One Time Password) to
authenticate payments. This time, two new variants of the Joker Dropper and
Premium Dialer spyware have been discovered in the Play Store. These were found
hiding in some legitimate applications
- It stated the malware "adopted an old technique from the conventional PC
threat landscape and used it in the mobile app world to avoid detection by
- Joker malware discovered in multiple apps with thousands of installs on the
Google Play Store.
- Emotet is a type of malware, also known to be the king of malware, as a type
of botnet which enters into a computer system when a user opens the link sent by
the attacker via email which looks legitimate. It spreads from one system to
another, enabling it to be a bot in the botnet. A botnet is a group of infected
systems which attack a specific computer or a server by sending more commands
than it can handle. The infrastructure used by Emotet involved thousands of
servers located across the world. All of these had different functionalities to
manage the computers of the infected victims, and spread to new ones, to serve
other criminal groups, and ultimately make the network more resilient against
takedown attempts. The attacker used Emotet malware in emails, using keywords
like healthcare and COVID 19 preventive measures, to clickbait the user and
obtain access to their information. Eight law enforcement authorities in January
2021, combined and participated in taking down the infrastructure Emotet had
been using to infect the ransomware.
- International team disables Emotet, world's most dangerous malware.
What can an individual learn from the attacks happening
An individual can try to be safe by not clicking links from random spam and
illegitimate emails. Individuals stepping onto websites or platforms, consider
trusting everything they see on the internet is a victim of these attacks, as
the attacker targets specific people.
Observe the words and the email id, and ignore the spam section of the email
What can an organization do to secure data privacy
"Data privacy software can help you achieve compliance by automating data
privacy principles". Understanding the needs of the consumer is a vital part of
every organization. Adding encryption, authentication, can help an organization
secure data privacy. Privacy software tracks your deadlines for each data
subject request and helps you understand customers better.
Need for a reform:
Data protection laws like GDPR are prevailing in other countries with
appropriate measures to ensure data privacy and protection of its citizens. To
ensure data privacy and protection of the citizens of India, India should
consider the positives of GDPR approve a legislation in India providing the
punishments and descriptions accordingly. The parliament should bring the law
into force, the PDP bill 2019 with a precise framework as soon as possible.
GDPR (general Data Protection Regulation) of EU
GDPR is the legislation brought in the EU (European Union) in May 2018, to
ensure data privacy and processing. It applies to all organizations and
businesses, those processing user data. This legislation provided strict rules
and penalties. GDPR ensured that businesses processing users' data should
If there is any misuse or exploitation of data, will be held liable
and made to pay heavy compensation. GDPR ultimately places obligations on every
processor (unit of the organization dealing with processing data) to maintain
records of data and how it is processed, providing a much higher level of
liability if breached. Controllers (unit of the organization dealing with
controlling data) are compelled to ensure that all contracts with processors
comply with GDPR.
One of the significant changes GDPR brought is by providing
consumers with a right to know when their data is compromised. Organizations are
required to notify the national authorities, as soon as possible to ensure
citizens take measures to prevent their data from being abused. GDPR brought
clarified the right to be forgotten, which provided additional rights and
freedom to people who no longer want their data to be processed, to have it
deleted, there is no ground for retaining it.
Consumers are also promised perceptible access to their data in terms of how it
is processed. Organizations should meticulously mention how they use customer
information in a clear, precise, and understandable way. Every organization
should have a DPO (Data Protection Officer ). It imposed a duty on all
organizations, to report a data breach or misuse of obtained data, unauthorized
access into accounts in under 72 hours. If the organization fails to comply, it
will be held liable and accountable for any loss of personal information, and a
heavy penalty will be imposed(10 million Euros or 4% of the company's annual
global turnover), according to the severity of the breach.
Rules to protect card data
Payment Card Industry Data Security Standard (PCI DSS)
The Payment Card Industry Data Security Standard (PCI DSS) is a set of rules for
protecting sensitive payment card information and cardholder data. The purpose
of PCI DSS is to increase controls around cardholder data to reduce credit card
fraud. The objective is to create an additional level of protection for card
issuers by ensuring that they meet minimum levels of security when they store,
process, and transmit cardholder data.
After proper registration, private
organizations can join the PCI DSS, MasterCard, American Express, Visa, JCB
International, and Discover Financial Services established the PCI SSC in
September 2006 as a governing entity that mandates the evolution and development
of PCI DSS.
Data Protection is effective when done for the right purpose and with
transparency. The data collected should be specific for the intended purpose.
There should be a minimum data requirement and accountability of the website
holder. There is a need for accuracy. Internet privacy has attracted the
attention of internet users, due to incidents of privacy breaches and the
evolution of technology. Regularly assess privacy settings on your accounts. You
may be sharing more information than just name and age with people you've never