Privacy challenges during Covid-19

Ashutosh Senger | Updated on April 20, 2020

Health data is precious and should be protected

Recently, information on Covid patients and those placed in quarantine has found its way to the public domain. Karnataka published a list of people quarantined. So did the district administration in Mohali. Such disclosures may seem right from a common man’s point of view, but they have a devastating impact on individual liberty and hence are against the fundamental right to privacy.

Such disclosures invite danger, too. Last month, several doctors and nurses treating coronavirus patients were forcibly evicted by their landlords who feared the healthcare workers would make them susceptible to Covid. Stigma and harassment await those who are undergoing quarantine if their sensitive private information goes public.

Shockingly, the Mohali list included names and addresses of more than 300 people suspected of carrying the coronavirus. The quarantine list was based on the self-declaration form international passengers entering India were made to fill. Few would have thought the information would reach the public domain.

Public health surveillance programmes, however well-intentioned, have to respect principles of liberty, equality and privacy. The Constitution has recognised privacy as a fundamental right in India, as explained in the Supreme Court’s Puttaswamy judgment. Unlike in, say, the UK where privacy is viewed as competing with other rights, India projects it as a substantive right subject to very few exceptions.

The Puttaswamy judgment lays down a three-part test to examine whether an action of State alleged of breaching a citizen’s privacy is valid. First, it has to be an action sanctioned by law. Second, it has to be an action which is necessary for a legitimate aim. Third, it has to be an action which is proportionate for the achievement of that aim. A bare perusal of the Epidemic Diseases Act, 1897 and the National Disaster Management Act, 2005 shows that no provision in these Acts allows or legitimises publishing personal data of the persons on a public database. As such, the action of the executive to upload private information of people undergoing quarantine in the public domain is prima facie violative of the fundamental right to privacy.

With no specific data protection law in place in India (a draft regulation is around), collection and release of private information of a person in the public domain without their consent is a source of concern because these information records hold significant commercial value for healthcare and pharmaceutical companies, health insurance providers, among others.

The justification given by the executive for such public disclosure is that harmonised data-sharing has become an essential tool in the ongoing fight against coronavirus. This is a knee-jerk reaction. The executive must not forget that priority for the nation at the moment is to contain the spread of this pandemic and not deter people from cooperating. If reporting symptoms would cause personal data to be published online, it will certainly hesitate people from coming forward especially in today’s time when we desperately need them to cooperate the most.

For the sake of constitutional order and for safeguarding the privacy of persons during this process, the executive must refrain from uploading personal information of persons in the public domain. As the executive explores data-driven solutions and public disclosure of information as methods to contain this pandemic, we as a nation must consider how our data will be held in the aftermath of this pandemic.

The writer is a Delhi-based advocate

Published on April 20, 2020

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