The Srikrishna Committees Report and Bill for Personal Data Protection sans Constitutional basis, as it proposed unreasonable restrictions on Freedom of Speech and Expression on the basis of ‘privacy’, which is not listed as a ground in the Constitution. The draft PDP bill 2018, if passed, will bring pre-censorship on the media through back doors of data protection. It also creates a parallel body on par with Information Commission to adjudicate issues of disclosure under RTI and publication of journalistic reports in media.
The Bill laid down the rights of ‘data principals’ proposed the creation of a Data Protection Authority, and prescribes penalties for violations by ‘data fiduciaries‘. It gives four new rights to citizens: right to confirmation, correction, to portability and to be forgotten. ‘Data’ is defined in two different ways- first, ‘personal data, “data about or relating to a natural person…”, second “sensitive personal data” which is actually amounts to ‘privacy’ that includes: health data, official identifier, sex life, sexual orientation, biometric data, genetic data, transgender status, intersex status, caste or tribe, religious or political belief. The consent that ‘data fiduciaries’ must obtain for collection and processing of personal data must be ‘informed’, ‘specific’, ‘clear’ and ‘capable of being withdrawn’.
It prescribes duties to “data fiduciary“- (public and private sector entities that collect, process and store data) ‘data‘ of ‘data principal’ (citizens, or persons owning the data), to prevent misuse of personal data and ensure compliance with the safeguards and data protection obligations by corporations, governments or anyone else processing personal data. Breach of these obligations will lead to huge penalties up to Rs 5 crore for processing personal data and up to Rs 15 crore for processing sensitive personal data in breach of duty.
There are broad exemptions to personal data protection on the grounds of Security of State (Section 42), Prevention, detection, investigation and prosecution of Crime (S 43), Processing for the purpose of legal proceedings (S 44), Research archiving or statistical purposes (s 45) Personal or domestic purposes (S 46), Journalistic purposes (S 47) and Manual processing by small entities (S 48).
But the Bill left void about two vital exceptions ‘security of state’ and ‘prevention of crime’ without specific provisions and wants the Parliament to bring two separate legislations for them. The Supreme Court’s nine-judge bench last year declared privacy as fundamental right but left without defining it. Surprisingly, Srikrishna Committee also has not defined privacy, and left ‘security of state’ and crime prevention defences to be codified at a future date by the Parliament. With uncertainty looming large about these two broad exceptions, which are very significant issues that decide the fate of privacy and public interest disclosure, the bill is inadequate and incomplete.
The exception under ‘journalistic purpose’ (S47) apparently upholds media’s freedom but practically restricts it. It says: Where the processing of personal data is necessary for or relevant to a journalistic purpose, substantial part of the Act shall not apply. But the journalist has to ensure reasonable respect to the right of privacy of data principal. Sections 12 to 17 that deal with processing of personal data on the basis of consent, also for processing sensitive personal data u/s 18 to 22 and processing of personal and sensitive data of children (s23) also will not apply for journalists. Rights of Data Principal such as right to confirmation and access, right to correction, right to data portability, right to be forgotten, and other general conditions for the exercise of rights in this Chapter VI dealt under Sections 24 to 28 also will not apply to journalistic writings.
However the real problem lies in S 47(2) that takes away freedom given under s 47(1). S 47(2) says that such an exemption will apply only where it can be demonstrated that the processing is in compliance with any code of ethics issued by the Press Council of India or any media self-regulatory organization. The adjudicating officer will decide whether right to freedom of speech and the right to information of citizen will override the privacy of data principal. Mischief lies in expression ‘demonstration’ before adjudicating officer. A journalist has to demonstrate to convince that his journalistic purpose is in compliance with ‘code’ of Press Council or Self regulatory organization of media, before he publishes a critical analysis about a public servant- bureaucrat or politician. This is nothing but pre-censorship.
If data fiduciary happens to be a media organization or its journalist, and data principal is a public servant (including a serving or former minister), the repercussions could be serious. The so called right to be forgotten (s 42) could have serious implications on media’s freedom. Under this right a public servant or political leader can restrict disclosure of ‘data’ of his earlier conviction or truthful accounts of public life, of which he has a right to be forgotten. Adjudicating officer will decide the fate of media’s freedom based on right to be forgotten, which could be another spell of ‘pre-censorship’.
Another danger to press is hidden in definition of ‘harm’ in section 3(21). If the ‘data’ exposure leads to bodily or mental injury of data principal, causes him financial loss, loss of reputation, subject him to black mail or extortion or surveillance etc, the adjudicating officer will not permit disclosure under RTI Act or journalistic writing. The amendment proposed by Srikrishna to RTI Act says even if harm is ‘likely’, information could be denied. Adjudicating officer being a bureaucrat subordinate of political executive, if not convinced by any ‘demonstration’ of a journalist, media cannot file a critical report. If rulers jump at and pass this Bill, the Emergency type suppression of press freedom will be complete.
M Sridhar Acharyulu is the Central Information Commissioner and former Professor NALSAR University of Law.