Digital Age: A boon or a bane to Human Rights
By: Saachi Shukla & Apoorva Agarwal* |
The digital environment has marked a complete shift in our society, signalled a new revolution and has altered many aspects of our lives. The digital age has transformed modern life, bringing with it countless benefits of social connectivity, learning opportunities, flexibility and mobility, and increased productivity in various sectors of the economy. The shortcomings of the digital world are data security breach, malevolent operations of cyber terrorism, cyberbullying, online harassment, social media addiction, Intellectual Property and Copyright violations, complexities of digital media manipulation, complete reliance on digital gadgets, online banking frauds and surveillance, with the main focus on the invasion of privacy.
This immense collection, storage and distribution of data of personal information has posed a serious challenge to the universally recognised human rights in the digital age. It becomes pertinent to recognise that the digital revolution is one of the major issues affecting human rights. In order to curb human rights violations, International and domestic laws provide legal frameworks for the protection of rights of the individuals including the right to privacy, freedom of speech and expression, freedom of association, freedom from any discrimination and the right to be free from unreasonable search and seizure.
APPROACHES BY INTERNATIONAL COMMUNITIES
The digital global environment is set out as a space for imagination, delegation, and knowledge that provides a platform for freedom of expression and undefined connectivity. Digital platforms are not only a tool to share, search and access information, but also a source of a well-defined and structured system of human rights, followed by the nations respective of the domestic as well as the international framework. While the digital era contributes infinite benefits to mankind, it also poses a serious threat to the framework of International Human Rights law.
For instance, in China, citizens are denied access to any ‘harmful’ content on foreign websites by blocking access to social media platforms like Facebook and Twitter.[i] The Chinese Government regulates and censors the internet which is an outright violation of human right. In China, access to the internet is not considered an absolute human right but rather a conditional right conferred on its citizens. As in November 2016, President Xi Jinping adopted the ‘Cyber Security Law’ to restrict internet freedom, strengthen surveillance and track bloggers and human right activists that protest the policies, thus infringing the human right laws.
With respect to the United States of America in 2013, Edward Snowden, a former US Government contractor leaked documents to media that showed the extent to which digital security, data of users and networks had been compromised in the name of protecting ‘national security.’ As a result of this disclosure, people around the world challenged surveillance in Courts and legislations debated them.[ii] In the landmark case of ACLU v Clapper,[iii] bulk collection of phone records surveillance of American citizens by the National Security Agency was ruled illegal.[iv]
In the United Kingdom, the Information Commissioner’s Office confirmed to adopt an Age Appropriate Design Code of Practice in 2019 which provides 16 standards that must be followed while designing internet services accessible to children under 18 years of age.[v] This draft has been made to protect children under 18 years of age against the innumerable crimes of the internet. However, the proposal has been heavily criticised for its privacy policies and data sharing methods.
As for the agency protecting human rights, the United Nations Human Rights Council passed a non-binding resolution in 2016 condemning nations that intentionally disrupt accessibility to the internet. The resolution binds the countries on freedom of expression secured under Article 19 of the Universal Declaration of Human Rights, reaffirming that “the same rights people have offline must also be protected online.”[vi] However, many countries do not follow the laws made by the International agencies, mainly due to the fact that most such laws lack sanction/authorities. For instance, the United States of America admitted that they observed protests in Egypt in 2011 by digital means and committed a major violation of International framework of fundamental rights of free expression, assembly and association; including breach of privacy.[vii]
There are various recent examples as to the effect of the internet in undermining human right laws. For example, a criminal court of Tehran held Soheil Arabi for the death sentence for “insulting the Prophet Muhammad”[viii] on Facebook. In another case, Turkey Prime Minister Tayyib Erdogan banned social media platform Twitter for its citizens. Therefore, the Digital environment has become a platform for both exercises and violate human rights at a global level.
INDIA’S LEGAL AND POLICY FRAMEWORK
In India, digital technology has not only become a tool to monitor and track personal data but to influence and instil hatred or extremism between communities. Digital platforms and artificial intelligence is not only shaping our ideas but also manipulating and controlling our activities, ultimately violating human rights. Invasion of this fundamental right is a serious punishable offence.
In April 2012, Ambikesh Mahapatra and Subrata Sengupta were arrested for forwarding a cartoon in an email that ridiculed West Bengal Chief Minister, Mamata Banerjee.[ix] In November 2012, Shaheen Dhada and Renu Srinivasan were arrested for posting a Facebook status update that questioned the shutdown of Mumbai following the death of Shiv Sena chief, Bal Thackeray.[x] A friend who had “liked” her post was also arrested. In March 2015, Uttar Pradesh Police officers arrested a Class XI student in Rampur for making offensive remarks against UP Minister, Azam Khan, on Facebook.[xi] These arrests were made in the backdrop of Section 66A of the Information Technology Act, 2000. However, the Supreme Court quashed this section in the leading case of Shreya Singhal v. Union of India[xii] on the ground that it was arbitrary and unconstitutional, thereby upholding the freedom of speech and expression.
The Supreme Court has declared that the Right to Privacy is intertwined and correlated with the fundamental right to life and personal liberty enshrined under Article 21 of the Constitution. The Apex Court has identified the encroachment upon individuals’ privacy with national programmes such as the 12-digit UID (Unique Identity Number) scheme, DNA profiling, the National Encryption Policy in a number of cases. In September 2018, the Supreme Court of India struck down portions of the Aadhaar Act which did not fulfil the triple test of proportionality, legality and necessity in the landmark case of Justice K.S. Puttaswamy (Retd.) v Union of India and Ors.[xiii] As part of the authentication process, the individual was required to provide their biometric information which was recorded at a central database, arguably building a defined framework for a surveillance state. Therefore, the Supreme Court denied the use of individual Aadhaar numbers by any private entities for establishing the identity of the individual concerned for any purpose on the sole ground of infringement of the right to privacy.
In another case of Faheema Shirin RK v. State of Kerala and Others,[xiv] the High Court of Kerala declared that the right to access ‘Internet is a fundamental right to education as well as the right to privacy under Article 21 of the Constitution’.[xv] However, citing ‘national security’ as reason, 80 shutdowns were imposed in India in 2019.[xvi] Internet shutdowns are a ‘blatant violation of human rights law’[xvii] promoting to build a totalitarian state. The Central Government has a right to impose reasonable restrictions on the Right to Freedom of Expression in circumstances provided under Article 19 (2) of the Indian Constitution. However, in the light of the shutdowns in the state of Jammu and Kashmir lasting for almost 10 months, internet shutdowns have become a common tool to curb debates, oppositions and protests against the Government.
During the challenging times of COVID-19 lockdown, latest news related to breach of privacy, cyberbullying and social media harassment emerged on the digital platform. In the recent “Boys Locker room” incident, a group chat was made on the social platform of Instagram where a bunch of male students from different premium schools of Delhi shared objectionable pictures of underage girls, body shaming them and passing comments about gang-raping them. These group chats, promoting rape culture, went viral on the digital platform ultimately violating the rights of these minor girls. However, the Delhi Police Cyber Cell identified and held almost all the members associated with the group and examined them after the Delhi Commission of Women issued legal notices to the police and Instagram over the incident.[xviii] These are the few instances in which the Government, State agencies and individuals have invaded the rights of another individual by violating their privacy either by harassment or cyberbullying, curtailed freedom of speech and expression by making arrests over social media posts, the denial of access to the internet for criticising government policies like in the cases of Citizenship Amendment Act (CAA) and The National Register of Citizens (NRC).
All human rights are “indivisible, interdependent and interrelated,”[xix] and the development of one right facilitates the progress of the others while the deprivation of one deteriorates the others. In the present digital age, good governance cannot be achieved without the proper implementation of digital service. The first steps to address the challenges of digital age could be an approach to view people as an individual holder of rights, empowering individuals to voice their opinions, and creating a solid legal environment to enforce rights and seek redressal in case of any abuse of a right. It must be ensured that every digital medium complies with principles of transparency, fairness, accountability and redress. With the collective efforts of the Government, International Organisations, social media platforms, private and public sectors, judiciary and NGOs, a robust mechanism can be adopted to protect human rights against any misuse of personal data and information.
* The authors are the students at New Law College, BVP, Pune.
[i] Marina Svensson, Human Rights Online: Chinese Perspectives and Global Developments, Institute for Security & Development Policy, (Mar. 29, 2017), https://isdp.eu/internet-human-rights-china/ [ii] Dinah PoKempner, The Internet is Not the Enemy, HUMAN RIGHTS WATCH, https://www.hrw.org/world-report/2017/country-chapters/the-internet-is-not-the-enemy [iii] ACLU v. Clapper, No. 14-42 (2d Cir.2015) [iv] Eileen Donahoe, Human Rights in the Digital Age, HUMAN RIGHTS WATCH, (Dec. 23, 2014, 5:54 PM EST), https://www.hrw.org/news/2014/12/23/human-rights-digital-age [v] Josephine Jay, Lore Leitner, Laura Brodahl, UK’s Age Appropriate Design Code Pending, THE WSGR DATA ADVISOR, (Nov. 1, 2019), https://www.wsgrdataadvisor.com/2019/11/uks-age-appropriate-design-code-pending/ [vi] James Vincent, UN condemns internet access disruption as a human rights violation, THE VERGE, (Jul. 4, 2016, 4:33 AM), https://www.google.com/amp/s/www.theverge.com/platform/amp/2016/7/4/12092740/un-resolution-condemns-disrupting-internet-access [vii] Eileen Donahoe, Michael Posner, Brett Solomon, Richard Allan, Peter Barron, Internet Freedom: Promoting Human Rights in the Digital Age- A Panel Discussion, U.S. Mission to International Organizations in Geneva, (Mar. 4, 2011), https://geneva.usmission.gov/2011/03/08/internet-freedom_hrc/ [viii] NA, Iran: Death Sentence for Facebook Posts, HUMAN RIGHTS WATCH, (Dec. 2, 2014, 12:00 AM EST), https://www.hrw.org/news/2014/12/02/iran-death-sentence-facebook-posts [ix] Global Network Initiative and The Internet and Mobile Association of India, Interactive Slideshow Explores Impact of India’s Internet Laws, GNI IAMAI, (Jul. 17, 2014), https://globalnetworkinitiative.org/india-intenet-law/ [x] Mumbai Bureau, ‘Mumbai shuts down due to fear, not respect’, THE HINDU, (Nov. 19, 2012, 17:41 IST), https://www.google.com/amp/s/www.thehindu.com/news/national/other-states/Mumbai-shuts-down-due-to-fear-not-respect/article15618967.ece/amp/ [xi] IndiaToday.in, 13 infamous cases in which Section 66A was misused, INDIA TODAY, (Mar. 24, 2015, 10:03 IST) https://www.indiatoday.in/india/story/section-66a-cases-how-it-curbed-245739-2015-03-24 [xii] Shreya Singhal v. Union of India (2013) 12 SCC 73 [xiii] K. S. Puttaswamy (Retd.) v. Union of india and Ors (2017) 10 SCC 1 [xiv] Faheema Shirin RK v. State of Kerala and others, WP (C) No. 19716 of 2019 (L) [xv] Special Correspondent, Access to Internet is a basic right, says Kerala High Court, THE HINDU, (Sep. 20, 2019), https://www.thehindu.com/sci-tech/technology/internet/access-to-internet-is-a-basic-right-says-kerala-high-court/article29462339.ece [xvi] Binaifer Nowrojee, Asia’s internet shutdowns are a violation of human rights, FINANCIAL TIMES, (Mar. 17, 2020, 6:00 AM), https://www.google.com/amp/s/amp.ft.com/content/6a656de5-6031-4d97-b9cf-f683440b7915 [xvii] Ibid [xviii] Outlook Web Bureau, Schoolboy Held For Posting Photos in ‘Boys Locker Room’, Police Identify 21 Other Members, Outlook, (May 5, 2020), https://www.google.com/amp/s/www.outlookindia.com/website/amp/india-news-schoolboy-held-for-posting-phtos-in-boys-locker-room-police-identify-21-other-members/352081 [xix] Dunstan Allison Hope, Protecting Human Rights in the Digital Age: Understanding Evolving Freedom of Expression and Privacy Risks in the Information and Communications Technology Industry, BSR, (Feb. 2011), www.bsr.org