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
