Urge to enact privacy and data protection law

In the global information economy, personal data have become the fuel driving much of current online activity. Every day, vast amounts of information are transmitted, stored and collected across the globe enabled by massive improvements in computing and communication powers. With new technological developments in recent decades, particularly in information and communication technologies, this issue has been increasingly challenged. In response to these difficulties, there has been a wave of data protection laws in different parts of the world since the 1980s, which have attempted to safeguard the personal data of individuals. According to UNCTAD report on Data Protection Regulations 2016, the number of countries with data protection legislation has grown rapidly in recent years, now reaching a combined 108 countries with either comprehensive data protection laws or partial data protection laws. However, this still leaves nearly 30 percent of countries with no laws in place and unfortunately and Bangladesh stands second in the list.

Legally addressing the concept of privacy is relatively new in Bangladesh. Although the Constitution of Bangladesh does not explicitly mention the word 'privacy', it safeguards the sanctity of the home and the confidentiality of communications from government intrusion. Article 43 of Constitution renders, “Every citizen shall have the right, subject to any reasonable restrictions imposed by law in the interest of the security of the State, public order, public morality or public health:- (a) to be secured in his home against entry, search and seizure; and (b) to the privacy of his correspondence and other means of communication.”  It is pertinent to mention that the USA Constitutional standpoint is also same as in Bangladesh Constitution. However, USA Supreme Court has concluded that the Fourth Amendment protects, against government searches, whenever a person has a 'reasonable expectation of privacy'. Beside these two countries, many other countries explicitly protect privacy in their constitutions; for example, Brazil proclaims that “the privacy, private life, honour and image of people are inviolable”; South Africa declares that “[e]veryone has the right to privacy”; and South Korea announces that “the privacy of no citizen shall be infringed.” When privacy is not directly mentioned in constitutions, the courts of many countries have recognised implicit constitutional right to privacy, such as Canada, France, Germany, Japan, and India.

Bangladesh is on the verge of major threats of privacy and personal data leakage and that is evidencing at times. Very often, we see upsetting news in the national dailies regarding privacy infringement and personal data loss from medical records, banks, educational institutions, Bkash outlets, spa center, hotel, shops and so on. However, it may appear that Bangladesh is well protected by virtue of the Information and Communication Technology (ICT) Act of 2006 to bring proceedings against perpetrators of such intrusion and unauthorised access. But actually, the ICT Act has its own merits in some metrics, having several loopholes too; e.g., it fails to take into account all heinous incidents as perpetrators carry out their operations anonymously and thus, in most of the cases, it is difficult to identify them. In other words, a preventive framework at the pre-breach level is simply non-existent. Indeed, mere presence of legislation on post-breach offences will not provide adequate protection. Thus, it is a demand of the day that Bangladesh should have data protection law to curb future challenges of protecting citizens' privacy.

The writer is a P  D Candidate, University of Malaya, Malaysia.