Sunday, 14 March 2021

Whether court directing accused to give password of his social media account will violate his right to privacy?

 15. ANSWER TO QUESTION NO.8:Would providing of password, passcode or Biometrics violate the right to privacy of a person providing the said password, passcode or Biometrics? 15.1. This aspect is to be considered in light of the principles propounded by the Hon'ble Apex Court in Justice Puttaswamy's case supra. More so, in view of the fact that the data which could be available on the said electronic equipment being personal in nature could also be misused by the investigating agency and/or the investigating agency would come into possession of personal data which are held secret by that person which have nothing to do with the investigation at all more so since there cannot be a strict  compartmentalisation of data as personal or not personal in the said equipment belonging to a person or in the e-mail account. 15.2. Once the investigating agency has an access to a electronic equipment more particularly smart phones and/or laptops, the Investigating Officer has a free access to all data not only on the said equipment but also any cloud service that may be connected to the said equipment, which could include personal details, financial transactions, privileged communications and the like. 15.3. The rules which are applicable to physical document where a particular document could be classified as a privileged communication and/or strictly private and confidential cannot apply to the data which is stored on a  smartphone or any other electronic equipment since once an investigating officer has an access to the said smartphone, electronic equipment or e-mail account, he would have complete access to the data. 15.4. Such data though may not be incriminatory, may be very private or secret to the person or such data could incriminate the said person in any particular offence. 15.5. The use of such data during the course of the investigation would not amount to a violation of the right to privacy and would come within the exceptions carved out in Justice Puttaswamy's case supra, however, the disclosure, making public or otherwise in court proceedings would have to be determined by the concerned judge by  passing a judicial order. In no case could such details or data be provided by the investigating officer to any third party during the course of investigation without the written permission of the court seized of the matter. The responsibility of safeguarding the information or data which could impinge on the privacy of the person will always be that of the investigating officer, if the same is found to have been furnished to any third party the investigation officer would be proceeded against for dereliction of duty or such other delinquency as provided.

Karnataka High Court

Mr. Virendra Khanna vs State Of Karnataka By: on 12 March, 2021
Author: Suraj Govindaraj J
WP No.11759/2020.

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