white_paper_on_data_protection_in_india_171127_final_v2

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minimisation, or the practice of limiting the collection of personal information to that which is necessary to accomplish a specified purpose. 489 5.2 Issues (i) Relevance of the Purpose Specification Principle in light of technological developments The advent of newer technologies such as Big Data, data analytics and the Internet of Things may challenge the relevance of the purpose limitation principle, as it currently exists. Various applications of these technologies have demonstrated that many potentially valuable and innovative uses of data develop outside of the scope of the purpose specified at the time of data collection. Data may be repurposed and used in an entirely different manner, which has nothing to do with the original purpose. 490 Similarly, the Internet of Things functions by collecting and storing a large amount of data first, which is then analysed to translate into an immensely beneficial service the purpose of which was not even conceptualised at the time of collection. 491 However, it could be argued that even for such services, the purposes that the services may be put to could be envisaged and set out for the data subject to review. If the purposes get changed in the future, the data subject may be notified as and when such amendments are made. (ii) Compatibility Assessment Assessing whether a particular use of information is compatible with the original purpose is difficult. Data is often multi-functional and it may not be possible to definitively determine whether a particular use of data falls within a permitted purpose. On the other hand, if a more subjective compatibility test is prescribed, this would involve weighing factors such as the nexus between the original use and the current use; the context in which the information was collected, whether the use was reasonable; the nature of information collected and the impact of further processing. This may prove burdensome to the data controller, or to the data protection authority, depending on who must assess compatibility. This leads to another issue of who is responsible for determining compatibility. (iii) Difficulty in specifying purpose in a simple manner The purpose specification principle is intended to ensure that the purpose for which information is collected is clear and specific. In actual practice, personal data could be 489 Bernard Marr, ‗Why Data Minimisation is an important concept in the age of Big Data‘, Forbes (16 March 2016), available at: https://www.forbes.com/sites/bernardmarr/2016/03/16/why-data-minimization-is-animportant-concept-in-the-age-of-big-data/#58dbc0aa1da4, (last accessed 24 October 2017). 490 Omer Tene and Jules Polonetsky, ‗Big Data for All: Privacy and User Control in the Age of Analytics‘, 11(5) Northwestern Journal of Technology and Intellectual Property 239 (2013), available at: http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1191&context=njtip, (last accessed 24 October 2017). 491 Office of the Privacy Commissioner of Canada, ‗Discussion Paper on Consent and Privacy‘ (May 2016), available at: https://www.priv.gc.ca/en/opc-actions-and-decisions/research/explore-privacyresearch/2016/consent_201605/#heading-0-0-7, (last accessed 20 November 2017). 106
collected for more than one purpose, which are distinct but related in some degree. Privacy notices attempt to work around this difficulty by using terms such as ―improving user experience‖, ―IT-security purposes‖ and so on. These are vaguely worded and the individual may not understand the exact purpose for which her information is being used. Companies may also use vague purposes deliberately to allow for the data to be put to significantly higher and varied uses than the data subject is likely to think of. On the other hand, providing a detailed description full of legal terms may prove counter-productive as it adds to the complexity of the notice, and makes it difficult for the individual to read and understand. 492 5.3 International Practices European Union The principle of purpose specification as envisaged under the EU GDPR requires that the data controller must only collect data for specified, explicit and legitimate purposes, and once the data is collected, it must not be processed further in a manner that is incompatible with the original purpose. 493 It provides an exemption for further use, as long as it is for scientific, historical or statistical research purposes, as they are not considered to be incompatible purposes. The intention behind using terms such as ―specified, explicit and limited‖ is to ensure that the entity collecting the personal information carefully considers what purposes the information will be used for, and to avoid the excessive collection of information which may not be necessary, adequate or relevant for the purpose which is intended to be satisfied. 494 The EU GDPR does not separately provide for the use limitation principle; it is folded into the purpose specification principle. United Kingdom Under the UK DPA, personal data is allowed to be obtained only for one or more specified and lawful purposes and must not be further processed in any manner incompatible with that purpose. 495 Additionally, the UK DPA also provides that the personal data collected should be adequate, relevant and not excessive in relation to the purpose for which it is processed. The ICO guidelines provide that compatibility of subsequent use depends on whether the intended use can be considered lawful under the UK DPA. The purpose specification principle ensures that organisations are open about their reasons for obtaining personal data and that what they do with the information is in line with the reasonable expectations of the concerned individuals. 492 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). 493 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). 494 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). 495 Paragraphs 2 and 3, Schedule 1, UK DPA. 107
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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
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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 and 114: that there may be certain situation
Page 115: CHAPTER 5: PURPOSE SPECIFICATION AN
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
Page 165 and 166: 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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