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ONLINE DATING: IS PRIVACY SWIPED LEFT?

Introduction

Online dating is relatively a new domain but it has already set its foot in every inch of the world. Meeting people online is getting more and more popular, especially in the COVID 19 era. Youth is going gaga over the saga of online dating even in a conservative society like India’s. Online dating, as the name suggests, means computer-assisted matching. In this form of dating, a computer algorithm helps in connecting people with similar preferences, hobbies, and the like.

The innovative method has made it very easy to find a like-minded love in one’s life. But every coin has two sides, with the convenience of finding a match online, comes the concern of privacy and thus the stigma. In most cases, online dating apps ask for sensitive information like a user’s location or sexual orientation.[1] Although collected personal information about users can be used to improve the customer experience of service, making it more relatable, users should think about the long-term implications of their data collection.[2]

Privacy Concern in Online Dating

What exactly is privacy? The concept of privacy is interpreted differently in different cultures. Even law and culture scholars, politicians, and others are constantly debating the definition of privacy.[3] In the legal spectrum, privacy is a right, the right to be left alone. It is a security of individual freedom. In the light of this article, privacy can be conceived as a right to access and delete personal data anytime without going through a cumbersome process. Is this right granted by mobile dating applications?

Privacy concerns involved in online dating are highlighted in, inter alia, unintentional disclosure of information; receiving unsolicited, targeted advertising; identity theft; cyberbullying; stalking; knowing the user detailedly; unsecured data retention; difficulty in accessing or manipulating personal information; and, influencing the user’s experience through data collection. Some applications even demand mandatory profile photos or other credentials and deny access to a service because a person does not wish to enter personal information. Another issue with dating sites is that screenshots of users’ conversations or profiles can be used for doxing, shaming, and other malicious purposes. Messages can be used to see if users were in contact before an event happened, or to confirm alibis because they are all time-stamped when sent and received.[4] The messages may include images that are highly personal in nature and would be embarrassing if they were made public.[5]  Users of these apps should be concerned about these factors because they could jeopardize their privacy. To avoid unintentional disclosure of personal information, users should be aware of their institution’s privacy policies and read them before beginning to use an online service. Before sharing information with an online service provider, users should keep in mind that the service provider may store it for business purposes. This data may not always be secure, and the user may have difficulty accessing or manipulating the data elements stored. The analyzed data could, in the worst-case scenario, jeopardize the user’s existence.

In March 2017, a journalist Judith Duportail requested Twitter to give her access to all her data ever collected by it. To her surprise, the data was way more than expected. She fluttered and fumbled while reading through 800 pages telling the world about her hopes, fears, sexual preferences, and deepest secrets[6]. Like Twitter, most dating apps do collect users’ confidential information. It gives rise to questions like, why do they collect such an enormous amount of data? How do companies use this data? What gives them the right to do so? Are users informed?

Due to the lack of clear and dedicated legislation, there is no unequivocal answer to the above-asked questions. Most countries, including India, lack clear legal frameworks that define intermediary obligations and responsibilities for preventing and responding to cases of online Gender-Based Violence.[7] Despite the present lack of a specific legal framework for dating apps, certain general laws governing computers and the internet do apply. The Information Technology Act, 2000, for example, addresses issues such as wrongful disclosure and misuse of data, including data collected by mobile matchmaking services – sensitive data in India.

The ITA[8] incorporates several rules that can protect online privacy in some instances while also diluting it in others. It has provided safe harbor to intermediaries under section 79(1) of IT Act, 2000 which states “an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by it, provided that it fulfills the conditions prescribed in Section 79(2) and Section 79(3) therein”.[9] This provision provides an easy escape for intermediaries (here, dating applications). The problem of the absence of specific regulations and loopholes in general regulations needs to be taken care of at a priority. It is high time legislators framed online dating-specific regulations.

Future Framework for Privacy: Recommendations

The 21st century has witnessed an exponential increase in recognition of individual privacy. Data collection and protection have become an integral part of public as well as private life. Since 2010 both government and the public have been pushing for privacy legislation. It is just a matter of time before the world actualizes this planning, at least on paper. To make the legislation a success, intensive research, detailed analysis, and rigorous consultations need to be undertaken. To contribute to the success, the article puts forth a handful of recommendations keeping in mind the ground realities of India.

First and foremost, because reading a lengthy privacy policy is tedious, the data collector must provide snippets or simple to understand notices of its information practices to all persons, in plain and concise language, before collecting any personal information from them. Second, having to go through a background check before signing up for a dating app raises a lot of valid privacy issues and expands the amount of sensitive and personal data available to corporations. To avert this, legislation should be implemented requiring dating websites to post safety alerts for their users and, if background checks are not completed, to prominently declare to users that the website does not conduct such criminal background screenings, allowing them to make informed decisions.

Intermediaries can voluntarily agree to follow international human rights rules and take due diligence efforts to safeguard their clientele.[10] Moreover, following Snapchat’s footprints, dating apps should notify the user when someone takes a screenshot of her/his profile or chats. To make the cyber environment safer and healthier, applications can adopt a feature to send warnings/notifications to the user if someone spends more than a reasonable amount of time on her/his profile for three consecutive days. Last but not the least, stricter guidelines should be followed in the case of minors. Intermediaries should be under tighter obligations to report cases involving minors, failing which they could be held criminally liable.[11]

Conclusion

The virtual world is slowly taking the front seat, pushing the real world to the back seat. But, much to our dismay, legislators have failed to reflect this reality into laws. Instead of blindly applying a one size fits all approach in the case of the cyber world, the state needs to go beyond traditional conceptions[12] and enact laws especially dedicated to the spectrum of online dating and privacy concerns revolving around it. As firms gather more data from and about internet users, and as the government seeks more access and surveillance powers, it is vital that India emphasizes privacy and implements robust measures to preserve privacy[13]. The first step in this direction is to pass comprehensive privacy legislation that recognizes privacy as a basic right, as proposed in Justice K. S. Puttaswamy (Retd.) and Anr. versus Union Of India And Ors, 2017.[14] It is high time laws prevented black symbols (words) uploaded by one from turning into the black of one’s nightmare.

Author(s) Name: Aviral Pathak (Rajiv Gandhi National Law University, Patiala)

References :

[1] Ostheimer, Julia & Iqbal, Sarfraz, ‘Privacy in online dating: does it matter?’ (2019), <https://www.researchgate.net/publication/332384729_Privacy_in_online_dating_does_it_matter> accessed 8 November 2021

[2] Ibid

[3] Ibid

[4] Jody Farnden, Ben Martini & Kim-Kwang Raymond Choo, “Privacy Risks in Mobile Dating Apps” (2015) < https://media.kasperskycontenthub.com/wp-content/uploads/sites/58/2017/10/21180944/1505.02906.pdf> accessed 10 November 2021

[5] Ibid

[6] Supra note 1

[7] Supra note 4

[8] Information Technology Act, 2000

[9] Information Technology Act, 2000, s 79(1)

[10] Supra note 4

[11] Ibid

[12] Supra note 4

[13] Supra note 13

[14] (2017) 10 SCC 1

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