The Rights of Passage

In this ever-evolving digital era, the preservation of civil liberties has transcended the confines of mere legalities; it has emerged as the very essence of our democratic ethos. This crucial juncture demands a delicate equilibrium between privacy, surveillance and free speech, especially in the vibrant tapestry of India, where the implications hold profound significance.

Privacy, in the digital age, is not just a matter of data protection; it’s a fundamental right that we must actively champion. The stories of individuals navigating the digital realm, from rural artisans to urban professionals, highlight the myriad ways in which personal data becomes intertwined with our daily interactions.

It’s essential to recognize that the digital era is a realm where information is both currency and vulnerability. The same technology that facilitates seamless transactions and connects us across distances also opens avenues for potential exploitation. It beckons us to reflect on how we can harness the benefits of a digitized society while safeguarding the very essence of what makes us individuals—our autonomy, personal narratives and the right to control the narrative of our lives.

The profound insights of Warren and Brandeis in their article titled ‘Right to Privacy’ in the Harvard Law Review resonate  with the contemporary, globalized world shaped by the dominance of the internet and information technology. They argue that the principle protecting personal writings and other personal productions is not merely a safeguard against theft and physical appropriation, but an affirmation of an inviolate personality. This embodies a core tenet of freedom and liberty—an assertion of the inviolable nature of the human personality. Warren and Brandeis’ reflections on the impact of technology remain prescient, especially in an age dominated by the internet, where the boundaries of privacy are continuously redefined.

While contemporary accounts often attribute the modern conception of the ‘right to privacy’ to Warren and Brandeis, history points to Thomas Cooley, who, in his Treatise on the Law of Torts, employed the phrase ‘the right to be let alone’. Cooley, in discussing personal immunity, underscored the right of an individual as one of complete immunity—a right to be alone. This historical context emphasizes the enduring nature of the concept and its evolution over time.

Privacy emerges as a natural right—an inherent aspect of an individual’s control over their personality. Rooted in the belief that certain rights are natural and inseparable from human personality, privacy becomes a fundamental and inalienable aspect of life. 

Historical perspectives on privacy as a natural right remind us that the preservation of individual autonomy and the sanctity of the human personality are enduring principles that transcend time and technological evolution.

The intricate interplay between surveillance by the State and an individual’s right to privacy has been a subject of compelling debate within Indian jurisprudence. The first case that dealt with privacy was R. Rajagopal v. the State of Tamil Nadu. The court determined that a magazine possessed the right to publish an autobiography penned by a prisoner, even in the absence of the prisoner’s consent or authorization. Despite efforts by prison officials to hinder the publication by compelling the prisoner to request its non-publication, the court underscored the need to maintain a delicate equilibrium between press freedom and the right to privacy. The court concluded that the state and its officials lacked the authority to impose prior restraints on materials that could potentially defame the state.

In the landmark case of People’s Union for Civil Liberties v. Union of India, the court unequivocally held that telephone tapping infringes the guarantee of free speech and expression under Article 19(1)(a) unless authorized by Article 19(2). Drawing from international legal instruments, the judgment emphasized the protection of privacy under Article 17 of the International Covenant on Civil and Political Rights. This protection, the court asserted, must serve as an interpretative tool for construing the provisions of the Indian Constitution. The judgment in PUCL is significant not only for its stance on telephone tapping but also for its construction of the right to privacy as a constitutionally protected right. This interconnected interpretation recognized that wiretapping infringes privacy and, by extension, other fundamental rights.

The evolution of the right to privacy reached a watershed moment in 2017 with the judgment in K.S. Puttaswamy (Retd) v. Union of India. The Supreme Court recognized privacy as an expansive right covering not only physical invasion but also the realm of the mind, decisions, choices and information. The court overruled earlier judgments in M.P. Sharma and Others v. Satish Chandra, District Magistrate, Delhi and Others and Kharak Singh v. State of Uttar Pradesh, firmly establishing the right to privacy as a fundamental right. While acknowledging that the right to privacy is not absolute, the judgment delineated a stringent standard of judicial review for cases of State intrusion, emphasizing the principles of legality, need, proportionality and procedural guarantees against abuse.

In navigating the complex terrain of privacy and state surveillance, Indian jurisprudence has continually grappled with striking a balance between individual rights and legitimate State interests. The nuanced approach taken by the courts reflects an evolving understanding of privacy as a dynamic and multifaceted right, adapting to the challenges posed by advancements in technology and the expansive reach of State actions. 

The struggle to protect privacy is a global endeavour. Courts worldwide grapple with challenges posed by technological advancements, highlighting the crucial need for legal frameworks prioritizing accountability, transparency and the fundamental right to privacy. Drawing from this global perspective, I will now explore specific facets of privacy infringement, beginning with facial recognition technology (FRT).

FRT represents a marvel of technological innovation, but its application raises significant privacy and discrimination concerns. It is often contended that the right to privacy is ‘a privilege of the few’ and an individual must make a choice between the right to privacy and the welfare entitlements provided by the state. Studies reveal inherent biases within FRT algorithms, especially in identifying darker-skinned women, ethnic minorities and transgender individuals. For instance, a study by Massachusetts Institute of Technology (MIT) Media Lab found higher error rates for darker-skinned females in commercial FRT systems. These inaccuracies gain significance when integrated into the criminal justice system, disproportionately affecting vulnerable groups. The COVID-19 pandemic accentuated these concerns with controversies surrounding FRT’s use in health data management. Therefore, I would like to dispel the claim that economic status and access to welfare entitlements are more important than civil and political rights for socio-economically disadvantaged communities. All individuals, regardless of their socio-economic status, are deeply impacted by violations of the right to privacy, autonomy and intimacy.

In the realm of AI, we find that the unchecked algorithms used by tech giants compound privacy concerns. The movie Minority Report, directed by Steven Spielberg, envisions a future where a specialized police department apprehends criminals based on foreknowledge provided by three psychics called ‘precogs’. The movie raises ethical questions about the potential misuse of predictive technologies, illustrating a dystopian society where privacy is virtually nonexistent. The precognitive nature of AI depicted in the film poses profound dangers to personal privacy, as individuals are targeted for crimes they have not yet committed, challenging the very fabric of autonomy and individual rights.

The dual nature of technology is apparent as a catalyst for progress harbouring inherent privacy risks. Surveillance analytics, despite its benefits in healthcare and crime prevention, prompts substantial privacy concerns. Practices such as web cookies and social media data harvesting have raised alarm bells. The General Data Protection Regulation (GDPR) implemented by the European Union sets a global standard, prioritizing individual privacy rights. However, debates persist, exemplified by conflicts between the US government and tech companies like Apple over encrypted data access, highlighting the security versus privacy conundrum.

The Puttaswamy judgment introduced a stringent proportionality test, yet its operational complexities pose challenges, particularly in evaluating modern surveillance programmes. Examining the constitutionality of global surveillance programmes reveals significant challenges due to limited information on their operational aspects. The lack of clarity hampers comprehensive evaluations of their adherence to constitutional standards. A collaborative effort between policymakers, technology companies and informed citizens is imperative. Robust oversight mechanisms, stringent authorization protocols and increased public awareness, without compromising ongoing investigations, constitute the way forward. A pertinent example is the UK’s Investigatory Powers Tribunal, which functions as a judicial body overseeing surveillance activities, ensuring compliance with legal standards and protecting individual rights. 

The last aspect of civil liberties in the digital age that I seek to address is upholding the constitutionally protected right of free speech on the internet. Here, the traditional understanding of civil liberties can be distinguished from digital rights activism in two major ways. Firstly, the unprecedented proliferation of disinformation and hate speech on the internet has offered a serious challenge to the traditional ways of understanding free speech in a democracy. Secondly, in traditional civil rights activism, there was a classic state-activist-corporation relationship that played out in most struggles. Today, however, large social media corporations don’t play the stereotypical role of being an entity that needs to be constrained or viewed as complicit with the state.

When it comes to content moderation of online speech, there is a complex moral dilemma that arises in attempting to balance two key values: One, the upholding of freedom of expression; and two, the prevention of harm caused by misinformation. Most criticisms of global ‘anti-fake news’ legislation are based on concerns that such legislation is overbroad and prone to misuse, thus restricting legitimate speech as well. Such issues about how to define disinformation and prevent selective misuse are essential; however, they put the cart before the horse.

All liberal democracies purport to protect the right to ‘free speech and expression’—however, what remains contested is the application of this principle to concrete situations. The presence of laws against, inter alia, defamation, incitement to violence and contempt of court indicates that the free-speech protection does not extend to all acts of communication. In deciding the contours of this protection, therefore, courts and lawmakers are applying a certain theoretical understanding of free speech. Where can disinformation be located in these theories?

Is disinformation protected by traditional free speech theories and constitutional jurisprudence under Article 19 of the Indian Constitution? I believe that demonstrably false facts are not protected by traditional free speech theories.

The oft-quoted theory of free speech is the concept of a ‘marketplace of ideas’, which has found its way into Indian jurisprudence from the First Amendment in the US. The Supreme Court has relied on this understanding of free speech in several landmark cases like Shreya Singhal and Bennett Coleman. This theory of free speech, which can be traced from Justice Holmes’ dissent in Abrams v. United States, is based on the frictionless exchange of ideas. It postulates the concept that just like a free market of goods, where consumer demand helps the best products rise to the top, a democratic public sphere with the free exchange of ideas will let the best ideas prevail. The usual presumption, therefore, is that under this theory, disinformation is a part of the marketplace of ideas and the only way to counter it is with more speech.

However, several scholars like Ari Waldman argue that false facts are not a part of this ‘marketplace of ideas’. The marketplace can only exist when there is agreement on the veracity of basic facts. There is no marketplace of facts. In fact, the goal of fake news is to create one, to erode the stability of foundational elements of society—namely, truth. In this way, tolerating the proliferation of fake news erodes the free and open debate that democracy intends to protect. If we cannot agree on the veracity of basic facts, debate stops, partisanship hardens and social solidarity breaks down.

The purpose of the metaphor of a ‘marketplace of ideas’ was to promote an exchange of ideas premised on the agreement of basic facts. Oliver Wendell Holmes Jr’s dissent was in the context of persecuting anti-war activists for their speech—thus, what was being freely exchanged were radical ‘ideas’ about existing facts and not the veracity of the facts themselves. For example, whether a religious site was desecrated or not, whether a speech was actually delivered, whether COVID-19 is caused by a virus or bacteria are all facts and not ideas or opinions, with many possible answers. 

Traditionally, freedom of speech and expression was deemed to be an essential part of civil rights activism because of the fear that the government would prevent certain kinds of speech from entering the marketplace. With the advent of troll armies and organized disinformation campaigns across different social media platforms, the fear is that there is an overwhelming barrage of speech that distorts the truth. Therefore, we cannot fall back on traditional notions of free speech and must find new theoretical frameworks to locate free speech with the advent of the internet.

The second point of distinction lies in the rupture of the traditional state-activist-corporation relationship. Civil rights activists no longer place the corporation within the traditional box of an entity whose power is to be restricted. To the contrary, they rely on social media corporations such as Facebook, Twitter (now X) and YouTube to expand their freedom of speech and expression, often in opposition to the government.

Today, digital rights activism is intertwined with private platforms in an unprecedented way. Digital liberties are being fought for in a public space that is privately owned. The basic principles of liberal and socialist politics remain the same—liberty, equality and justice—but they are being fought for in a new space and conducted via a new privately owned medium that transforms the character of the activism itself.

However, there is a flip side to adopting privately owned platforms as the medium for dissent, activism and expression of free speech. With corporations wielding such immense power, there is an immense amount of trust placed on them to act as the arbiters of acceptable and unacceptable speech—a role that was earlier played by the state itself. This can have disastrous effects. Unlike state actors who are held accountable by the Constitution and the electorate, social media platforms are relatively unregulated. This is another novel challenge that digital liberties activists have to find unique solutions to.

In conclusion, while digital liberties activism, including the protection of privacy and free speech, has gained currency at an unprecedented pace, we are still in an early period of theorizing on it. The civil liberties movement acted as the precursor to a larger narrative, a narrative of digital rights. It now illuminates our path towards safeguarding digital freedoms, ensuring that as we traverse through this landscape, we do so with the commitment to upholding the basic values of justice, equality and freedom. After all, as the world moves online, our battles to uphold civil liberty must also follow suit.   

(This is an edited and exclusive excerpt from Why the Constitution Matters: Selected Speeches by DY Chandrachud)

digital agefree speechhuman rightsmen. womenonlineright to privacyThomas CooleyWarren and Brandeis