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Facebook v/s Apple: The Battle Over Privacy

Apple and Facebook are two of the most powerful companies in the world. these companies are not directly in competition as they deal in very different spheres of technology but Apple's new software update changes their equation and pits them against each other.

Apple's update to its iOS 14 operating system was a momentous one as it gave more control to the user over their data. The new policy update introduced a feature that Apple calls App Tracking Transparency. This feature gives the device user an explicit choice in the form of a pop-up on whether they wish to be tracked or not by the apps and websites they use. While this update might look mundane but it has wider and deeper connotations as it strikes at the business model of many applications including the social media giant Facebook.

Facebook was stunned by this change of policy as a significant part of the conglomerates business model deals with personalized and targeted advertisements but with this change the users will have the autonomy to decide whether they wish to share this data with Facebook or not. Users are more likely to refuse seeing Facebooks skewed record.

Facebook, privacy issues and Impact on society

BigTech companies have often been charged of violating user privacy and personal data misuse, and Facebook has been labelled as a serial offender of privacy and rightly so. The company has been involved in many data leaks of user's private information. The social networking company's most famous blunder is the infamous Cambridge analytica scam where the company shared the data of 87 million users with a United Kingdom based firm to be used for political advertising. This came as a reminder to governments across the world that the privacy of their citizens needs to be protected by strong data protection laws.

While the app 'Signal' stores the phone number of the user to create and access the account, Facebook stores the email id, phone number, purchase history, financial information, search history, contact list, device ID, photos or videos, physical data, crash and performance data of the user. this data is eventually used to create a digital database of the users and their preferences, and most part of it is done without the consent of the user.[1] This data is mortgaged to various types of businesses for creating targeted advertisements, the mobile operating system is a key catalyzer during this process.

The software company has endangered the personal and sensitive data of over 533 million Facebook users from 106 countries leaked by leaking it online. Facebook has done little to ensure that such hazards are avoided and the platform's privacy policy is a complex one involving 50 different settings, 170 options and runs to 5,830 words making it longer than the United States constitution. The elaborate nature of the document makes it even more difficult for the user to understand and access the policy. It doesn't appear that Facebook had even the most basic compliance framework to safeguard access to user data.

This entails to a clear violation of the right to privacy; this also leads to the platform being unaccountable towards the user. Apple's new privacy policy update aims at easing this and giving the user more autonomy to choose whether they wish to be targeted by Facebook's personalized advertisements or not. This new amend in policy by apple is significant because it protects privacy of users even without many nations having requisite laws instructing it to.

Why should this amendment in policy be of concern?

Nations across the globe in the past few years have woken up to the threat of data leaks and brokerage but only a few nations have drafted laws to regulate the misuse of user data, several of the BigTech companies have enjoyed a free run due to the absence of protection laws.

Apple's new privacy update comes as a positive step in cohering with these national laws and international statutes by taking the user's consent and providing them discretion over their data, Facebook in their response have condemned this change in policy citing losses to small businesses as they rely highly on targeted advertisements. Their response is completely unwarranted and violates the international covenants on privacy like United Nations Declaration of Human Rights (UDHR) 1948 and the International Covenant on Civil and Political Rights as they give primacy to financial interests of small businesses than acknowledge and act to preserve the right to consent of the user. Facebook through their conduct and business model have treated user data as a mortgageable commodity without permission and has disenfranchised users.

India doesn't have a dedicated framework to deal with violation of user privacy.in the year 2017 the Right to privacy was recognized as a fundamental right under Article 21 of the Constitution as a part of the right to life¯ and personal liberty¯ (the privacy judgement), this became a stepping stone in the right direction and provided an indirect safeguard towards corporate excesses.

The court stated that every person should have the right to control the commercial use of his or her identity and that the right of individuals to exclusively commercially exploit their identity and personal information, to control the information that is available about them on the internet and to disseminate certain personal information for limited purposes alone¯ emanates from this right and yet Facebook has failed to comply with these laws and clearly has been violating them. by bringing in the above-mentioned policy update Apple has fulfilled its duty towards Indian users.

The privacy judgement was only applicable when the state violated the privacy but the same judgment recognized that enforcing the right to privacy against private entities may require legislative intervention. In the year 2019 the personal data protection bill was introduced but it hasn't been passed by the parliament into a law yet, this perhaps is one of the reasons why tech giants like Facebook have been violating the privacy of the user incessantly.

The Indian parliament amended the Information technology act of 2000 (IT Act) to include Section 43A and Section 72A, which give a right to compensation for improper disclosure of personal information, this amendment was aimed at protecting data but the law has been found to be ambigious in nature, the networking company has also not been prosecuted under the above-mentioned laws despite multiple violations. Moreover, currently there is no law or framework at place in India to elucidate how should data of Indian users be stored, asking companies to appoint dedicated data protection officers and regulators. This lacuna is exploited by many firms, this also acts as a window used by tech conglomerates to escape accountability.

Application of Law and Locus standi

While the right to privacy has been accorded the status of a fundamental right, its practical usage remains limited as the absence of a dedicated data protection law makes it nearly impossible to know and understand what are the rights which can be availed. The absence also has an effect on common understanding and brings our variations in judgements by the courts.

Moreover, when a corporate giant like Facebook violates the right to privacy, a user might have very limited incentive to expend time and resources to file a complaint under existing law primarily because the IT act only considers 'compensatory provisions' for actual monetary losses suffered by the complainant but the BigTech companies and corporates don't necessarily cause monetary harm but severe damage by violating the user's privacy.

In most cases the financial loss is also difficult to demonstrate. Many tech conglomerates have taken the advantage of this legal loophole. Apple's new policy not just minimizes the risks of data leaks but is also adheres to the supreme court judgement on privacy despite the fact that the PDP bill has not been passed.

Dealing with BigTech companies like Facebook would be particularly difficult hence there is a strong requirement of a Data protection authority (DPA), which is mentioned in the PDP bill but as mentioned in the bill, the body would be statutory in nature.

The course of action.
Steve Jobs famously once said that:
People should know what they're signing up for, in plain English. Some users might wish to share more data than others, ask them¯. By valuing the data of the user's, Apple has followed these wise words of the founder. This approach should be followed by Facebook as well. unenforceable and vague promises are certainly not enough, data protection should be taken very seriously and accountability should be ascertained. Facebooks instead of putting up a fight to Apple should remodel its business model to ensure targeted advertisements and user privacy are compatible with each other and the right to have a choice is not tampered with.

In the past decade, the Indian government has adopted the digital way of governance. The usage of technology is at an all-time high currently, the pandemic rather exacerbated this and the pace of digitization has grown rapidly yet informational privacy takes low priority in the legislative order of business, this can also be witnessed from the fact that the parliament has granted a fourth extension to the joint parliamentary committee to submit its report on the Personal Data Protection Bill, 2019 (PDP Bill). There is a strict need for the parliament to develop a sense of urgency in this regard.

With each passing day, the government is failing in its positive obligation towards its citizens to create a law that enables them the right to privacy not just as a theory but as an actual safeguard. It must also be very clearly understood that privacy is an intrinsic right to all members of the society and privacy delayed is privacy denied.

dispute between the two companies should be a reminder to the government that the personal data protection bill is need of the hour and adequate steps must be taken to protect the data of the citizenry.

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