white_paper_on_data_protection_in_india_171127_final_v2

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information in the event that it has been ordered by a court of law; where a public authority needs to collect data necessary to the exercise of the functions of the legislature, such as the drafting of new laws. Adaptations suitable for India will have to be explored. 4. There may also be a need of a ground which permits the collection of information in situations of emergency where it may not be possible to seek consent from the affected individual. 5. The ―legitimate interest‖ ground under the EU GDPR appears to be subjective and difficult to enforce. It places a heavy burden on the data controller who must carry out the balancing test weighing its interests against that of the rights of the individual. Despite this, there may be a need to have a residuary ground under which processing activities could take place, as it is not possible for the law to foresee and provide for all situations, which may warrant the processing of information without seeking consent of the individual. This residuary ground would be intended for the benefot of the individual. As an alternative, the data protection authority could designate certain activities as lawful, and provide guidelines for the use of these grounds and the data controller would be permitted to collect information under these grounds. 4.5 Questions 1. What are your views on including other grounds under which processing may be done? 2. What grounds of processing are necessary other than consent? 3. Should the data protection authority determine residuary grounds of collection and their lawfulness on a case-by-case basis? On what basis shall such determination take place? Alternatives: a. No residuary grounds need to be provided. b. The data protection authority should lay down ‗lawful purposes‘ by means of a notification. c. On a case-by-case basis, applications may be made to the data protection authority for determining lawfulness. d. Determination of lawfulness may be done by the data controller subject to certain safeguards in the law. 4. Are there any alternative methods to be considered with respect to processing personal data without relying on consent? 104
CHAPTER 5: PURPOSE SPECIFICATION AND USE LIMITATION 5.1 Introduction (i) Purpose Specification Principle Purpose Specification is an essential first step in applying data protection laws and designing safeguards for the collection, use and disclosure of personal data. 485 The principle of purpose limitation is designed to establish the boundaries within which personal data collected for a given purpose may be processed and may be put to further use. As described in the OECD Guidelines 486 , the principle has two components: the data must be collected for a specified purpose and once the data is collected, it must not be processed further in a manner which is incompatible with the purpose for collection. Each subsequent use must be specified at the time of change of purpose. For instance, if a clothing store collects an individual‘s address for the purpose of delivering goods she has ordered, and later uses this information to send her promotional material, this would not be permitted; as such use is incompatible with the original purpose. This principle is closely linked to the Use Limitation principle (described below) and the Data Quality Principle (described in Part III, Chapter 7 of the White Paper). Specifying the purpose of collection and ensuring that further use is in line with the purpose of collection contributes to transparency, legal certainty and predictability in the data collection process. This principle also gives an individual control over her data by allowing her to set limits on how her personal information will be used. It also ensures that collection is lawful and fair, and prevents further use that may be unexpected, inappropriate or otherwise objectionable. 487 (ii) The Use Limitation Principle The Use Limitation principle provides that personal data should not be disclosed, made available or otherwise used for purposes other than those specified. It provides two exceptions where this does not apply, i.e. where the individual has permitted the use; and when such use or disclosure occurs with the authority of law. The intention of providing these two exceptions is to allow some level of flexibility of use within processing activities. 488 The underlying logic of the use limitation and purpose specification principles is that of data 485 Article 29 Data Protection Working Party, ‗Opinion 03/2013 on purpose limitation‘, European Commission (2 April 2013) available at: http://ec.europa.eu/justice/data-protection/article-29/documentation/opinionrecommendation/files/2013/wp203_en.pdf, (last accessed 24 October 2017). 486 OECD, ‗OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data‘ (2013), available at: http://www.oecd.org/sti/ieconomy/oecdguidelinesontheprotectionofprivacyandtransborderflowsofpersonaldata.ht m (last accessed 31 October 2017). 487 Article 29 Data Protection Working Party, ‗Opinion 03/2013 on purpose limitation‘, European Commission (2 April 2013) available at: http://ec.europa.eu/justice/data-protection/article-29/documentation/opinionrecommendation/files/2013/wp203_en.pdf, (last accessed 24 October 2017). 488 OECD, ‗OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data‘ (2013), available at: http://www.oecd.org/sti/ieconomy/oecdguidelinesontheprotectionofprivacyandtransborderflowsofpersonaldata.ht m (last accessed 31 October 2017). 105
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WHITE PAPER OF THE COMMITTEE OF EXP
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inclination to peruse the contents
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TABLE OF CONTENTS Foreword.........
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(x) Impact on development of teleco
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9.1 Introduction ..................
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1. A Digital India in a Digital Wor
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information can then be used to cre
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Privacy is a complex concept that h
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The FIPPS were soon followed by the
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In light of these developments, the
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OECD Guidelines, 68 and sought to a
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Constitution - the right against un
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visits at night and regular surveil
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or necessary for legal compliance.
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Aadhaar based authentication which
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tested as per the contemporary Indi
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man and woman must be kept in mind.
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of the law. Second, the ease of cro
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ambit of the term organisation. 191
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1. What are your views on what the
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2.2 Horizontality of Application (P
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a. The law could regulate personal
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This distinction between data and i
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(iv) Pseudonymisation and Anonymisa
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that the information is not in the
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CHAPTER 4: SENSITIVE PERSONAL DATA
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protection. Subject to an evaluatio
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South Africa The POPI Act defines p
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a. All personal data processed must
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an employee of the controller who g
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. Clear bifurcation of roles and as
Page 63 and 64: 7.2 Specific Exemptions and Interna
Page 65 and 66: In India, collection of statistical
Page 67 and 68: of imposition of similar nature.‘
Page 69 and 70: mechanism to provide prior approval
Page 71 and 72: 1. What are your views on including
Page 73 and 74: To facilitate the cross-border tran
Page 75 and 76: (ii) Binding Corporate Rules BCR ar
Page 77 and 78: individual to take action to enforc
Page 79 and 80: CHAPTER 9 : DATA LOCALISATION 9.1 I
Page 81 and 82: (iii) IT-BPO/BPM Industrial Growth
Page 83 and 84: amounts of computer hardware, they
Page 85 and 86: In Indonesia, the regulation regard
Page 87 and 88: Distribution of Insurance Products)
Page 89 and 90: Another advantage of relying on con
Page 91 and 92: individuals may find it impossible
Page 93 and 94: that the collection is reasonably n
Page 95 and 96: CHAPTER 2: CHILD’S CONSENT 2.1 In
Page 97 and 98: the cloud service provider as to st
Page 99 and 100: The PIPEDA does not specifically de
Page 101 and 102: 7. How can the requirement for pare
Page 103 and 104: mechanism still continues to play a
Page 105 and 106: 3.3 International Practices Despite
Page 107 and 108: (CALOPPA) 466 and the GLB Act requi
Page 109 and 110: CHAPTER 4: OTHER GROUNDS OF PROCESS
Page 111 and 112: This ground covers two types of sce
Page 113: that there may be certain situation
Page 117 and 118: collected for more than one purpose
Page 119 and 120: enable data controllers to understa
Page 121 and 122: CHAPTER 6: PROCESSING OF SENSITIVE
Page 123 and 124: may instrumentally be caused if the
Page 125 and 126: PIPEDA does not specifically deal w
Page 127 and 128: CHAPTER 7: STORAGE LIMITATION AND D
Page 129 and 130: solely for archiving purposes in th
Page 131 and 132: 2. Data Quality: The principle of d
Page 133 and 134: data protection laws across jurisdi
Page 135 and 136: The requirement to be provided the
Page 137 and 138: Information Act, 1982 or other appr
Page 139 and 140: CHAPTER 9: INDIVIDUAL PARTICIPATION
Page 141 and 142: . the processing is unlawful and th
Page 143 and 144: such a right may be unsuitable in t
Page 145 and 146: from being taken solely on the basi
Page 147 and 148: CHAPTER 10: INDIVIDUAL PARTICIPATIO
Page 149 and 150: emove data for ―the processing of
Page 151 and 152: South Africa Section 24 of the POPI
Page 153 and 154: PART IV REGULATION AND ENFORCEMENT
Page 155 and 156: they form core, substantive element
Page 157 and 158: CHAPTER 2: ACCOUNTABILITY AND ENFOR
Page 159 and 160: have been taken or that the data su
Page 161 and 162: The EU GDPR focuses on a ―risk ba
Page 163 and 164: person who processes personal infor
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with developing certain baseline ac
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ENFORCEMENT TOOLS 2.6 Introduction
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Australia The Privacy Act makes ext
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B. PERSONAL DATA BREACH NOTIFICATIO
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eputation, and loss of confidential
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There is a need to put in place a n
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C. CATEGORISATION OF DATA CONTROLLE
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The Treasury Board of Canada Secret
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Under the EU GDPR, only certain dat
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5. What range of additional obligat
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D. DATA PROTECTION AUTHORITY 2.18 I
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and approval of the appointment by
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The supervisory authority shall pro
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. Advisory The functions of the OAI
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standards be set by different entit
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maintain reasonable security practi
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notices‘ 827 and ‗information n
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5. Given that the Appellate Tribuna
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CHAPTER 4: REMEDIES A. PENALTIES In
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sector, size, financial and other r
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to an overly adverse impact on smal
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B. COMPENSATION Awarding of compens
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United Kingdom As per the guidance
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C. OFFENCES There are certain types
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4.11 Provisional Views 1. The law m
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SCOPE AND EXEMPTIONS 1. Territorial
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6. Are there any other views relati
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2. Should the definition of process
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1. What are your views on including
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9. Data Localisation Data localisat
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2. Child’s Consent It is estimate
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Alternatives: a. Assigning a ‗dat
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If ‗sensitive personal data‘ is
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2. Should there be a restriction on
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3. Does a right to be forgotten add
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1. What are your views on the use o
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oth for principled and practical re
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Questions 1. What are your views on
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12. In cases where compensation cla
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3. What are the mitigating circumst
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