The definition of privacy as such cannot be encompassed in black and white. However, it has often been understood as a right intrinsic to an individual’s existence.
In furtherance of the Hon’ble Supreme Court of India’s ruling that the Right to Privacy is a fundamental right envisaged under Article 21 of the Constitution of India through Justice KS Puttaswamy (Retd.) v. Union of India (2017), the protection of this right has further gained momentum through the Indian Parliament passing the Digital Personal Data Protection (DPDP) Act, 2023; the objective of which is to provide for the processing of digital personal data in a manner that recognizes both the right of individuals to protect their personal data and the need to process such personal data for lawful purposes and for matters connected therewith or incidental thereto.
Therefore, the DPDP Act is preventive in nature in terms of immobilizing the unlawful usage of data. Further, the law provides penal provisions in circumstances where the provisions of the DPDP Act have been breached. The determination of such breach in terms of Section 33 contained therein, amongst other matters, includes considering the realization of any gain or avoidance of any loss by such person who has committed the breach.
The DPDP Act assumes to play a corrective role in some sense. But, under such a legislative setup, what is missing is an individual’s recourse to seek compensation against such breach as, importantly, data breaches can also lead to huge adverse impacts upon individuals as well as entities in an economic sense, not only based upon the losses incurred by the victims but also due to the undue profits realized by the wrongdoers.
Accordingly, one of the most efficient ways to enable such remedies to subsidize undue profits, if not losses, is by means of instrumentalizing the Doctrine of Unjust Enrichment, as it does not focus on the plaintiff’s injury, but on the defendant’s gain [Chao, Bernard. “Privacy Losses as Wrongful Gains”. University of Denver Strum College of Law].