white_paper_on_data_protection_in_india_171127_final_v2

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CHAPTER 8: INDIVIDUAL PARTICIPATION RIGHTS-1 Rights: Right to Confirmation, Right to Access, and Right to Rectification 8.1 Introduction One of the core principles of data privacy law is the ―individual participation principle‖ which stipulates that the ―processing of personal data must be transparent to, and capable of being influenced by, the data subject‖. 554 This principle manifests itself in the form of individual participation rights, which lie at the heart of data protection legislation 555 and allow an individual to participate in, and influence the manner in which, their personal data is used by data controllers and other individuals. 556 In addition to consent, they are the most direct means to provide an individual control over her personal data and are regarded as one of the most important privacy protection safeguards. 557 (i) Origin Individual participation forms three out of five FIPPS, which is deemed to be the bedrock of data privacy laws. 558 They are: 559 a. There must be a way for an individual to find out what information about him is in a record and how it is used. b. There must be a way for an individual to prevent information about him obtained for one purpose from being used or made available for other purposes without his consent. c. There must be a way for an individual to correct or amend a record of identifiable information about him. Subsequently the OECD Guidelines 560 which were significantly influenced by the FIPPS translated the individual participation principle into concrete rights. 561 Further, a perusal of 554 Lee Andrew Bygrave, ‗Data Privacy Law: An International Perspective‘ 2 (Oxford University Press, 2014). 555 Ministry of Justice, UK, ‗Impact Assessment of Proposal for an EU Data Protection Regulation‘ (22 November 2012), available at: https://consult.justice.gov.uk/digital-communications/data-protection-proposalscfe/results/eu-data-protection-reg-impact-assessment.pdf , (last accessed 21 October 2017). 556 Ministry of Justice, UK, ‗Impact Assessment of Proposal for an EU Data Protection Regulation‘ (22 November 2012), available at: https://consult.justice.gov.uk/digital-communications/data-protection-proposalscfe/results/eu-data-protection-reg-impact-assessment.pdf , (last accessed 21 October 2017). 557 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). 558 Paul M. Schwartz, ‗Privacy and Democracy in the Cyber Space‘, 52 Vanderbilt Law Review 1609 (1999). 559 CIPP Guide, ‗The HEW Report: Defining the Fair Information Practices‘, available at: https://www.cippguide.org/2012/08/23/the-hew-report-defining-the-fair-information-practices/, (last accessed 26 October 2017). 560 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). 122
data protection laws across jurisdictions also shows that there are three rights which form the core of individual participation. 562 They are as follows: a. The right to seek confirmation about whether one‘s personal data is being processed. b. The right to access one‘s personal data, including details such as 563 : The purpose of processing; the categories of data being processed; the period of storage; the rights visa-vis the organisation; the right to lodge a complaint; the source from where the data was collected, if it is not the individual; in case of automated decision making, the logic involved behind such decision and its consequences. c. The right to challenge the accuracy of one‘s personal data, and to have it amended. Thus, the right of an individual to gain access to their personal data has historically been a core requirement of data protection laws. This right allows an individual to determine if data held about them is correct and is being handled lawfully. It also opens the door to exercise of further rights, such as getting inaccurate data corrected. 564 8.2 Issues (i) Costly implementation The implementation of individual participation rights are costly for data controllers. Some data protection laws 565 permit data controllers to impose a fee for responding to individual requests. However, these fees are negligible. It has been estimated that the cost for responding to individual requests varies anywhere between GBP 50-100 per request (though some stakeholders from the financial sector have estimated the cost to range between GBP 550-650 per request) in the UK. 566 Under the EU GDPR individual participation rights are exercisable free of cost. There is concern that the abolition of fees will lead to an increase in frivolous and 561 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). The relevant individual participation rights contained herein include: (a) to obtain from a data controller, or otherwise, confirmation of whether or not the data controller has data relating to him; (b) to have communicated to him, data relating to him within a reasonable time; at a charge, if any, that is not excessive; in a reasonable manner; and in a form that is readily intelligible to him; (c) to be given reasons if a request made under subparagraphs(a) and (b) is denied, and to be able to challenge such denial; and (d) to challenge data relating to him and, if the challenge is successful to have the data erased, rectified, completed or amended. 562 Sally Annereau, ‗An Introduction to Subject Access Rights‘, Taylor Wessing (November 2013), available at: https://united-kingdom.taylorwessing.com/globaldatahub/article_intro_sar.html, (last accessed 22 October 2017). 563 Illustrative list from Section 7, UK DPA. 564 Sally Annereau, ‗An Introduction to Subject Access Rights‘, Taylor Wessing (November 2013), available at: https://united-kingdom.taylorwessing.com/globaldatahub/article_intro_sar.html, (last accessed 22 October 2017). 565 The UK DPA and The Dutch Personal Data Protection Act. 566 Ministry of Justice, UK, ‗Impact Assessment of Proposal for an EU Data Protection Regulation‘ (22 November 2012), available at: https://consult.justice.gov.uk/digital-communications/data-protection-proposalscfe/results/eu-data-protection-reg-impact-assessment.pdf , (last accessed 21 October 2017). 123
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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
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In India, collection of statistical
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of imposition of similar nature.‘
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mechanism to provide prior approval
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1. What are your views on including
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To facilitate the cross-border tran
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(ii) Binding Corporate Rules BCR ar
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individual to take action to enforc
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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 and 116: CHAPTER 5: PURPOSE SPECIFICATION AN
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: 2. Data Quality: The principle of d
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
Page 167 and 168: ENFORCEMENT TOOLS 2.6 Introduction
Page 169 and 170: Australia The Privacy Act makes ext
Page 171 and 172: B. PERSONAL DATA BREACH NOTIFICATIO
Page 173 and 174: eputation, and loss of confidential
Page 175 and 176: There is a need to put in place a n
Page 177 and 178: C. CATEGORISATION OF DATA CONTROLLE
Page 179 and 180: The Treasury Board of Canada Secret
Page 181 and 182: 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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