Ramifications of COVID-19 pandemic on right to privacy

Aug 29, 2020

Health data is important and should not be publicly accessible

A few months back data of COVID patients and those under quarantine made its way to the public domain. Karnataka published a list of persons in quarantine. The government of the Mohali district did likewise. Such revelations may seem right from a common man's point of view, but they have devastating consequences for individual freedom and are therefore against the fundamental right to privacy.

Such disclosures also call for risk. Also several doctors and nurses treating patients with coronavirus were forcefully evicted by their landlords, who claimed that healthcare workers would make them vulnerable to COVID. Stigma and abuse await those who undergo quarantine when their delicate private information becomes public.

Shockingly, it contained names and addresses of more than 300 people suspected of carrying coronavirus in the Mohali list. The quarantine list was based on a self-declaration form for foreign passengers arriving in India to fill in. None would have thought that the information would enter the public domain.

Public health surveillance programs, however well-intentioned, must respect the principles of liberty, equality, and privacy. The Constitution has recognized privacy as a fundamental right in India, as explained in the Puttaswamy judgment of the Supreme Court. Unlike, say, the United Kingdom, where privacy is perceived to be in competition with other rights, India sees it as a fundamental right subject to very few exceptions.

A three-part test for the validity of state actions alleging an infringement of the privacy of citizens is set out in the Puttaswamy judgment. Second, it has to be a lawful practice. Second, to achieve a valid reason it must be an activity necessary. Third, it brings an intervention proportionate to achieving the goal. A bare overview of the 1897 Epidemic Diseases Act and the 2005 National Disaster Management Act indicates that the publication of people's personal data in the public database is not permitted or legitimized under these acts.

With no formal data protection legislation in place in India (there is a draft regulation around), acquiring and publishing a person's private information in the public domain without their permission is a source of concern as these personal records carries considerable commercial interest for healthcare and pharmaceutical firms, health insurance providers, among others.

The executive's explanation for such public disclosure is that harmonized data-sharing has become an important instrument in the ongoing battle against coronavirus. This is just a reflex reaction. At the moment, the executive must not forget that the nation's priority is to curb the spread of this pandemic and not discourage people from co-operating. If disclosing symptoms will cause personal data to be published online, people would definitely hesitate to come forward particularly in today's time when we seriously need them to co-operate the most.

During this process the executive must refrain from uploading personal information to the public domain for the sake of constitutional order and the protection of the privacy of individuals. If the executive examines data-driven approaches and discloses details publicly as methods to combat this pandemic, we as a nation need to consider how our data will be processed following this pandemic.