Lavanya Regunathan Fischer

| @ | May 28,2018

Are we going to think in terms of an essentially dichotomous evolutionary path or are we going to agree that the right to privacy means that our legislators enforce the principle that the individual is more than the sum of her data.

The majority opinion in the 2017 Constitution Bench judgement on the right to privacy, Justice K Puttaswamy v. Union of India, articulated the position of this right in the context of the Constitution. It aligned privacy with freedom. Though there were six judgements, they all agreed that the individual has the right to determine how information related to her is used and it linked this right to the idea of human dignity.

This is the concept of informational self-determination. This idea of informational self-determination is a tantalizing one because it hints at positive rights; not just the right to be forgotten or the right to be informed when ones movement or liberty is curtailed.

“It is a constructive right giving the individual, agency in determining how the information with relation to her is shared and used.”

This terminology has caught the fancy of lawyers and jurists worldwide as the way to characterize how the modern state must relate to the information of an individual and has become central to discussions of this right. It has been used while describing the scope of the rights envisaged by the Indian order as well, and was also used during arguments. Unfortunately, though covering a similar range of concepts and legal ideas and tailoring it to the Indian context (including amongst others, the rights of sexual orientation), the almost 600 pages of the combined judgment did not explicitly use the complete phrase or give the original users credit for the articulation of the concept.

The term informational self-determination was first used in a German constitutional court case in 1983. The case known as the Census Act Temporary Injunction Case BVerfGE 65, dealt with the use of the information collected in the Census by the German state. This farsighted judgement articulated the need to understand information as a facet of an individuals’ personality and related to human dignity; giving her the right to choose what information, how much and where such information may be shared or disclosed or used by the State. Thus, making the concept of informational privacy a much more wholesome concept than the right to be forgotten or the right to data protection. Informational determinism envelops these rights and is a dynamic concept capable of adapting to the increasingly fast past methods of collecting information personal to an individual. This concept then acts as a counterpoint to the individuals’ expectation from the state to share all the data or information it has on its citizens.

“The right to informational self-determination becomes the reflective opposite image therefore, of the right to or freedom of information (in whichever way known) and the necessary corollary to the fundamental freedom of expression found in both the German and Indian constitutions.”

Germany has a healthy scepticism towards the state. This is in contrast to countries like Estonia for example where public trust is high. India seems to be somewhere in the middle. But the shape of the discourse in Germany is very interesting and may offer some useful insights as opposed to the more fragmented development of this right in the USA and the UK.

The worlds’ first comprehensive privacy law on informational privacy, it is widely agreed, was in the German state of Hesse. Both Germany and the USA have been active in this field of rights but while Germany has now a clearly recognised link between the constitution and the protection of this right (after the 1983 case the Federal Data Protection Act of Germany was modified to include the constitutional mandate) the links in US privacy law are not so well defined.

The Indian nine bench judgement traces this thread of the evolution of the law and mentions American scholars and cases fleshing out this right. In the United States, William Prosser (who developed the idea that privacy consisted of four tort rights; namely, the intrusion upon seclusion, public disclosure of embarrassing private facts, false light publicity and the appropriation of name or likeness and mentioned in the Indian order), and before him, Samuel Warren and Louis Brandeis (who argued that privacy meant the common law right ‘to be left alone’: the ripples of which were felt more than a century and a half later in the 2014 European Court of Justice case brought by Spain of Google and the right ‘to be forgotten’ and are also mentioned right at the beginning of the Indian order) best articulated the ideas associated with privacy. From here it soon developed to include concepts of confidentiality and information.

Professors Schwartz and Peifer in their paper published in the California Law Review[1] compare and contrast the American development of the right to privacy with the German right. They make the case that the development of these rights followed the path of what would be acceptable to their Constitutional cultures. The papers highlights two interesting ideas, one, that German personality rights have a Constitutional aspect and apply to both persons as well as government and secondly that German law does not try to balance interests between states rights or general rights in  ‘core areas of life formation’. They also state that while American legal thought on privacy at one time did contain elements of this personality linked understanding of the right, it was soon over taken by the conceptual understanding of a private-public division of rights. This is important because the Indian order expands on this same understanding of the position of privacy law.

“In Germany, if there is an infringement on certain defined core rights then it is subject to protection; information about this core area is subject to absolute protection, giving thereby a very concrete foundation to the idea of ‘inviolable’ rights.”

In case of the conflict between two or more core rights then the more basic or immediate core right gains precedence. While the idea of absolute may nevertheless allow certain infringements (the boundaries and principles of such infringement are also governed by a Constitutional provision: Article 19 and are to be decided by the courts), just like in India nevertheless it is the subject of the very strictest protection and this transfers itself to information about these areas. There are 19 such basic rights as per the German Constitution and they are: human dignity, personal freedom, equality, freedom of faith, expression marriage including the equality of children born within and outside marriage, school education, assembly, association, privacy of posts, correspondence, posts and communication, movement, occupation, military or other service, inviolability of the home, property, socialization (meaning public appropriation and compensation), citizenship and extradition, asylum, right to petition, infringement of these rights by legislation can only be allowed as long as they do not affect the ‘essence’ of these rights (as per the German Constitution’s article 19). What is constituted by essence is left to the judiciary to decide- again similar to our own legal evolution. The judges in the Indian case often refer to the concept of an inviolable core. Giving privacy a Constitutional aspect means it has to satisfy stronger tests than when it is understood in the context of public-private rights.

While constitutional safeguards for privacy clearly exist in the American system, it is perhaps not as well articulated and not linked as clearly to the development of a person as it is in Germany. As Professors Solove and Schwartz say the American approach is a more ‘sectoral’ approach whereas the German one is more of an ‘omnibus’ approach regulating both public and private sectors. Professor Solove’s articulation of privacy is also referred to in the Indian judgement.

Before we decide to follow one route or the other as this law develops here, it behoves us to understand the fundamental similarity between our constitutional evolution and the development of the law on privacy in Germany. This is because of the similar idea in both jurisdictions of a basic structure underlying the Constitution.

The idea of basic structure, first articulated even in the Indian context by a German scholar Dieter Conrad, creates in both constitutional cultures an affinity towards thinking of a core that is inviolable. We are still in the process of articulating what this means with regard to the individual but the German idea of associating this concept with human worth and dignity is similar to our interpretations of our fundamental rights especially, the right to life and liberty in Article 21 and the concept of dignity as stated in the our Preamble: all of which are mentioned in the August order as reasons to include privacy in the pantheon of fundamental rights. Since privacy then in Germany is aligned with personhood and the development of ones personality, it becomes a much more basic right than a concept of privacy having its basis in Tortian understanding. This positioning by the German courts is also a prime example of how sometimes the civil law courts function, much the same way as our common law court, in developing and constantly adding to the understanding of what is involved in a legal concept fundamental to a country’s legal philosophy.  With regard to privacy this has enabled Germany to quickly assimilate informational privacy and deal with protecting it rather efficiently.

Germany has not been keen on using numbers to identify its citizens and neither has it encouraged the use of profiling personally identifiable data. It has also been much stricter in the application of laws to social media sites identifying persons or places (but its data protection laws may have to be modified to comply with certain more liberal EU mandates on this question).

The approaches of both systems, the more pragmatic US construction of the term and the more philosophical construction of the German concept, have had different outcomes in some spheres of information sharing, especially in the degrees of protections afforded to certain aspects of life and the constitutional repercussions of infringement by both private parties and government.

Merely understanding the experiences of English speaking common law jurisdictions may not be adequate to completely decide the best way forward for the application of privacy as a right.”

The importance of understanding this in our own context, is how restrictive and vigilant will we be with regard to the information collected on us in the light of the inherent, maybe even instinctive, affinity our legal development seems to have with the German way of thinking on the subject. Will we use the philosophical license to enable ourselves to extend to all of us, more rights and more freedoms? Are we going to think in terms of an essentially dichotomous evolutionary path or are we going to agree that the right to privacy means that our legislators enforce the principle that the individual is more than the sum of her data.

[1] Paul M. Schwartz and Karl-Nikolaus Peifer, Prosser’s Privacy and the German Right of Personality: Are Four Privacy Torts Better than One Unitary Concept, 98 Cal. L. Rev. 1925 (2010).

Lavanya Regunathan Fischer is a Delhi based lawyer and an author. 

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