50 shades of privacy: IRCTC dropped data monetisation plan too easily

One doesn’t know if IRCTC was merely testing the waters when it floated the idea of monetising its voluminous and valuable passenger data and, almost in a manner of double take, disowned the very plan a few days later when media outrage became too hot to handle.

The sum and substance of the self-righteous and moralistic diatribe against IRCTC was — how could a government company seriously consider trafficking in personal data of travellers, especially when right to privacy carved out by the Supreme Court in the Aadhaar case was yet to be put in the statute book? 

Also read: IRCTC withdraws tender for passenger data consultant over privacy concerns

IRCTC must be aware of another right carved out by the Supreme Court much earlier — the right to advertise. In MTNL v. Tata Press, the apex court had declared that the right to “commercial speech” or advertisement is part of the fundamental right to freedom of speech and expression guaranteed by Article 19(l)(a) of the Constitution. A private agency like Tata Press is, therefore, entitled to bring out yellow pages comprising advertisements.

Right to commercial speech

In the same judgment, the court also held that single-line entries giving just the name, address and telephone number of the subscriber will continue to be the monopoly of the directories brought out by the government-run telephone authorities.

The year was 1995, when landlines ruled the roost. A lot of water has since flowed under the bridge and landline telephones are facing extinction except in large offices thanks to the onslaught made by cell phones that perform multiple functions. It may be that telephone directories too have become extinct along with landline phones but the right to advertise carved out by the apex court is very much alive and kicking. 

Yellow pages are an advertising medium paid for by the trade except for  doctors, lawyers and chartered accountants, who cannot advertise thanks to their professional codes of conduct. 

IRCTC data presumably would not be in a book form but as a proprietary product. But then all these things including if IRCTC was only indulging in kite flying are in the realm of speculation as things stand. Be that as it may.

Also read: Explained: IRCTC’s passenger data sale ‘plan’, the outrage, the denial

Right to privacy occupied mind-space much later. Indeed, it is an evolving law, the one which India has to come to terms with sooner than later. When Parliament enacts it, it has to keep in mind the right to advertise carved out in 1995 by the Supreme Court. 

It won’t be easy to be sure. Indeed, it will have to do a fine-balancing act — the right to privacy of citizens vs the right to advertise which the Supreme Court called the ‘right to commercial speech’. The two rights admittedly are at loggerheads with each other.

IRCTC in the light of the right to advertise perhaps need not have been so vehemently apologetic and dropped its monetisation plan like hot potato. Instead, it could have said it would bide its time and balance the two rights. For, IRCTC and Tata Yellow pages are similarly placed. Yellow pages may be the advertising medium whereas IRCTC is the aggregator in possession of valuable consumer data. Both would be exercising their right to commercial speech.

Need for privacy differs

Of course, the issue is debatable as many people bristle with self-righteous indignation and cry Faustian deals when one sells data but the larger point is the IRCTC proposal wasn’t exactly amoral. It is essential for a hospital or druggist to scrupulously protect diagnostic and prescriptive information as they are uniquely personal but one’s name, address, telephone or cell number, class of coach preferred are not arguably in the same league. Telephone directories have existed for a long time but no one has dubbed them as trafficking in personal information. IRCTC, had it soldiered on, would only have just gone a step further and sold travel data in addition. That it can possibly pocket ₹1,000 crore is not something to scoff at. A total user base of 6.6 crore with 5.2 crore of them being active and 25,000 joining the bandwagon everyday is a formidable database the commercial world would love to lay its hands on.

Also read: IRCTC update: You can now book up to 24 train tickets a month

The purpose of this article is to stoke a larger debate rather than taking a dogmatic stand on the legality of consumer data sale. The Ministry of Road Transport and Highways (MoRTH) earned ₹65 crore selling driver licence information, according to a parliamentary question answered by the Railway Minister in July 2019. As many as 142 companies have access to this data, according to a September 2019 RTI reply from the ministry. 

So, it is not as if the tentative IRCTC move was unique or unparalleled. The Vahan website attracted so much flak that it was accused of exposing and compromising a particular community. Let us have a healthy, dispassionate debate.

Also read: Nadella says data privacy must be seen as a human right

(The writer is a CA by qualification, and writes on business, consumer issues and fiscal laws)