A Fool’s
Paradise ?
==============
Today’s Times of India
carries following report :
“ Data Sale :Delhi
court orders probe against Monster.com “
In the first such case
just days after the Supreme
Court held privacy to be a
fundamental right, a trial court ordered a probe against online jobs
portal Monster.com for allegedly selling data on website users to a
third party.
Chief metropolitan magistrate Naresh Kumar Laka said online companies could not share personal information of users to a third party without their "informed consent". The apex court noted that there is an urgent need to restrain online firms from invading the privacy of individuals.
CMM Laka said users agreeing with the portal's terms of use and privacy policy would not automatically mean that companies are allowed to share or sell their personal information.
"At the time of entering personal information or data, job-seekers are not aware that the said data can be sold to any third person or that it can be misused. Accordingly, the said ostensible consent of the said applicant/individual cannot be said to be a free, voluntary or informed consent..." he said.
"It is common
knowledge that when a person applies for a job on the internet, s/he feeds
personal information which includes name, address and mobile number. In my
opinion, the said data being personal information cannot be transferred /shared
/ sold to some third person without the consent of the said person," the
court said.
In its defence, the company said it had told police that it had entered into a lawful contract for selling data. It relied on the clause of acceptance of agreement between job-seekers and the portal and said the terms of the agreements amount to the company taking consent of all users for sharing of their data.
Here are some points that I request Hon Judge Shri
Laka to consider :
·
Instead of requiring a jobseeker to just click “ I Agree “ on , “ Terms
and Conditions “ , suppose Monster.com ( and a million other similar sites )
were to require the user to CLICK on a clause such as :
“ I am of
sound mind and body and I have read all the terms and conditions of this site
and fully understood the same , without any doubt or reservations .
I consciously and deliberately agree and
accept that this web site has full and absolute right to sell my data entered
here and supplied by me of my free will , to anyone at any time and for any
consideration , including , but not limited to , monetary considerations .
I further declare that I have no claim
to any part or whole of such revenue that this site might make by selling my
personal data , in the aforementioned manner
I further agree that , in this regard ,
I fully absolve this web site from any liabilities that might arise from
someone misusing my personal data sold by this web site “
{ Highly paid lawyers of
Monster.com , will certainly improve on this draft ! }
I have no doubt Shri Laka – and the
Supreme Court - would find such EXPLICIT
CONTRACT , legally valid and binding ,
within the scope of the proposed DATA
PROTECTION LAW
·
All major job portals of India ( such as , Naukri / Monster / Timesjobs )
, provide their “ JOB SEARCH “ and “ RESUME
FORWARDING “ services to the registered jobseekers , FREE
Job-portals
make their money by charging a monthly / annual SUBSCRIPTION to their Corporate
Subscribers ( upto Rs 5 lakh / year ) , often linked to the number of
job-postings and resumes downloaded , per year
They
do not charge “ per resume downloaded
“ ! But annually ! So , no
sale ?
Nevertheless
, it is nothing less than “ selling a resume
“ ( - essentially , selling of “ Personal Data
“ ! )
They
have been “ selling personal data “ of
jobseekers ( to Corporate ) , for decades !
I
believe , last year , Naukri.com’s revenue was close to Rs 600 crores , from selling such “ personal data “ of some 50 million
jobseekers , to some 200,000 Corporate Subscribers !
And
close to 6 million new jobseekers registered on Naukri.com during last year !
Was
this income , “ illegal / unlawful “ , just because those jobseekers had merely
clicked “ I Agree “ on “ Terms and Conditions “ , and not made an “ informed decision “ ?
In
fact , did not those jobseekers EXPLICITLY
WANT the portal to send their resumes (
personal data ) , to MILLIONS
of EMPLOYERS , without bothering
how much money job portal collected from this service ?
And
, does Hon Judge think that those 50 million jobseekers would have refused to “
Submit Resume “ online , if they were required to sign an elaborate “
Acceptance
Clause “ , as described earlier ?
And
, does Hon Judge think that any Mobile App which , without presenting to
the downloader , such an elaborate / explicit / legally-binding clause ,
is also committing a CRIME ? ( all of these are selling data ! )
And
, does Hon Judge think that those 127
MILLION , “ Sellers
of Private Data in India “ ( type
in Google ) , have collected their databases , AFTER obtaining from their
SELLERS , such an elaborate / explicit / informed CONSENT ? –
before selling each data , thousands of times to anyone who pays ?
I
am sure legal counsels of Monster.com would want to use these arguments while
defending their client
They
may also want to consider making Naukri.com / TimesJobs.com and may be other
job portals , a “ party to this litigation “ ( - class action suit in reverse ?
)
In
any case , the Committee constituted under the Chair of Shri B N Srikrishna ,
should want to consider these points while drafting the DATA PROTECTION LAW
It
is time to stop living in a FOOL’s
PARADISE and provide for a “ Framework for Sale of Private Data “ as outlined in my blogs :
30
Aug 2017
www.hemenparekh.in / blogs
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