Can A Website Track User Behaviour Without Consent?

Tracking user behavior on websites is common for improving user experience, marketing, and analytics. However, such tracking raises privacy concerns, especially when done without user consent. Indian laws emphasize transparency and user rights regarding personal data collection and usage.

Legal Framework and Consent Requirements

Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011

• These rules mandate that collection and use of personal data require informed consent from users.
• Tracking that involves personal or sensitive information cannot be done without explicit consent.

Personal Data Protection Bill (Proposed)

• Once enacted, it will require websites to obtain clear, informed consent before processing or tracking personal data.
• It aims to enhance transparency and give users control over their data.

Use of Cookies and Similar Technologies

• Cookies that collect identifiable personal information or track behavior across sites require user consent.
• Informing users about cookie use via banners or privacy policies is considered a best practice.

Exceptions

• Some non-personal data tracking for site functionality may not require consent.
• Anonymous or aggregated data tracking generally has fewer restrictions.

Consequences of Non-Compliance

• Websites may face penalties under the IT Act for unauthorized data collection.
• Users can raise complaints with data protection authorities (once established).
• Loss of user trust and potential civil suits for privacy violations.

Best Practices for Websites

• Implement clear cookie consent banners or pop-ups.
• Maintain updated, transparent privacy policies detailing data collection and use.
• Limit data collection to what is necessary and secure data properly.
• Provide users with options to opt-out of tracking.

Example

An e-commerce website uses tracking cookies to monitor user browsing habits and show personalized ads but does not display a consent banner or privacy policy.

Legal Outcome:

• The website may be liable for violating user privacy under IT Rules.
• It may be required to implement consent mechanisms and compensate affected users.