DATA PROTECTION BILL: WHY IT'S CRITICAL WE LOOK AT FAIR DIGITAL ECONOMY, STATE FUNCTIONS AND SURVEILLANCE REFORM

This is first of a two-part series on the rebuttals to the supposed misrepresentation of the draft Data Protection Bill, 2018, on social media. In part I, the authors take a look at the fine print pertaining to the Right to Privacy, functions of the State and surveillance reforms. The Srikrishna Committee’s recommendations on data protection released last week have elicited valuable responses. While some are deserving of closer examination and possible inclusion in the legislative process, others may have missed the point.Three such concerns are addressed in this article, and each is associated with the broader theme of serving collective interests and processing of personal data by the State. The right to privacy within a free and fair digital economyAt the outset, concerns have been raised that the report and the proposed bill proceed on misplaced notions regarding the significance of the right to privacy; and consequently places the digital economy on a higher pedestal than individual rights. However, this is not the case.The opening chapter of the report reveals that the framework derives its normative bedrock from the Puttaswamy judgment, and seeks to insulate citizens from threats to their informational privacy. The Committee’s mandate has stemmed from its terms of reference, which include ‘unlocking the data economy while keeping data of citizens secure and protected.’It may be premature to view the individual’s right to privacy and the interests of a free and fair digital economy as a reduced binary, necessitating the prioritisation of one over the other. ‘Freedom’ in the digital economy refers to the enhancement of individual autonomy in the flow of personal data. ‘Fairness’ denotes respecting the rights of the data principal in the backdrop of traditional inequality with data fiduciaries. Here, there is no false choice between data protection and economic growth. Protecting the personal data of individuals will promote a free flow of information, leading to economic growth. Framing a binary in this regard would neglect the conception of individual rights as tools for the collective good and the common constitutional objective of autonomy served by both. Thus, the realisation of the Puttaswamy judgment can take place within an equitable free and fair digital economy to empower Indians.