white_paper_on_data_protection_in_india_171127_final_v2

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vexatious requests thus putting a strain on resources. 567 The increased compliance cost may prove to be particularly difficult for small and medium organisations to bear. (ii) Technical Challenges Another challenge facing the implementation of individual participation rights pertains to data controllers holding large volumes of data in unstructured formats such as emails. Data controllers not only hold large volumes of electronic data but they also hold them in a number of different formats and often a mixture of different types of data. 568 For instance, an organisation may have a billion emails which may contain information on a number of different topics and individuals. 569 As a consequence, extracting information about a specific individual from such a large and complex mass of data is challenging. Similarly government bodies may hold vast stores of data that relate to a variety of inter-related functions. The same may be true for some organisations which derive personal information from non personal data trails. In such situations, responding to a broad individual access request for ―all‖ personal data pertaining to an individual can be extremely difficult. 570 (iii) Logic behind automated decisions The right to access in most EU jurisdictions includes the right to access the logic behind automated decisions. Automated decision making has come under tremendous scrutiny since it involves algorithm based decisions without any human intervention. A research <strong>paper</strong> by Alan Turing Institute and the University of Oxford argues that meaningful implementation of this particular right is not feasible since the information required to be communicated to the individual who exercises this right is likely to be heavily limited by factors such as trade secrets and interests of the processing organisations. 571 As a result, a person turned down for a credit card might only be told that the algorithm took their credit history, age and postcode into account, while not specifying why their application was rejected, i.e. the logic behind automated processing. 572 567 Kingston Smith Consulting, ‗The Right to be Forgotten and the problems with Unstructured Data‘ (20 May 2014), available at: https://www.kingstonsmith.co.uk/wp-content/uploads/2016/04/SubjectAccessRequests.pdf (last accessed 22 October 2017). 568 Kingston Smith Consulting, ‗The Right to be Forgotten and the problems with Unstructured Data‘ (20 May 2014), available at: https://www.kingstonsmith.co.uk/wp-content/uploads/2016/04/SubjectAccessRequests.pdf (last accessed 22 October 2017). 569 Kingston Smith Consulting, ‗The Right to be Forgotten and the problems with Unstructured Data‘ (20 May 2014), available at: https://www.kingstonsmith.co.uk/wp-content/uploads/2016/04/SubjectAccessRequests.pdf (last accessed 22 October 2017). 570 Kingston Smith Consulting, ‗The Right to be Forgotten and the problems with Unstructured Data‘ (20 May 2014), available at: https://www.kingstonsmith.co.uk/wp-content/uploads/2016/04/SubjectAccessRequests.pdf (last accessed 22 October 2017). 571 Sandra Wachter et al., ‗Why a Right to Explanation of Automated Decision-Making Does Not Exist in the General Data Protection Regulation‘, 7(2) International Data Privacy Law 76 (1 May 2017), available at: https://academic.oup.com/idpl/article/7/2/76/3860948 (last accessed 18 November 2017). 572 Ian Sample, ‗AI watchdog needed to regulate automated decision-making say experts‘, The Guardian, (27 January 2017) available at: https://www.theguardian.com/technology/2017/jan/27/ai-artificial-intelligencewatchdog-needed-to-prevent-discriminatory-automated-decisions, (last accessed 22 October 2017). 124
The requirement to be provided the logic behind an automated decision derives from the early days of automation when such logic was easily available. Today, black box algorithms are designed so that they are completely inscrutable to humans. It is not possible, as a matter of design, for the logic behind these algorithms to be exposed. Under these circumstances simply requiring the logic for the decision may not be a suitable response to the challenge of automated decision making. Accordingly individuals need different forms of protection against the harms that could arise out of automated decision making. India needs to ensure that a legally tenable and feasible right find place in its data protection law. (iv) Limited exercise of rights Individuals are often unable to gauge the impact of the collection and use of their personal data on their privacy and autonomy, thus leading to ignorance on their part of their rights under data protection laws. 573 Further, it has been observed that relevant case-laws in European member countries on individual participation rights are hard to find thus furthering the belief that these rights are possibly not commonly exercised by individuals in some countries. 574 The low level of engagement with courts could point to the lack of awareness of informational rights amongst data subjects, ―particularly regarding potential redress mechanisms such as courts, coupled with low levels of expertise regarding data protection matters on behalf of criminal justice professionals extending as far as judges‖. 575 Others also argue that meaningful exercise of these rights require an individual to know where to look, know that such a right exists in the first place, ascertain whom to ask for, etc. and also for an organisation to seriously consider these requests and respond. 576 This is a challenge India is very likely to face given the low exposure of its citizens to issues of data protection. 8.3 International Practices European Union Under the EU GDPR an individual has the right to receive information concerning the identity and contact of the data controller, the purpose of processing as well as the legal basis of such processing, and information concerning the existence of the other rights of the data 573 Lee A. Bygrave and Dag Wiese Schartum, ‗Consent, Proportionality and Collective Power, Reinventing Data Protection?‘, 4, (Springer Link, 2009). 574 Antonella Galetta et al., ‗Mapping the Legal and Administrative Frameworks of Access Rights in Europe – A Cross-European Comparative Analysis‘ 34 Law Governance and Technology (2017), available at: http://irissproject.eu/wp-content/uploads/2014/06/IRISS-WP5-Summary-Meta-Analyses-for-Press-Release.pdf, (last accessed 22 October 2017). 575 Antonella Galetta et al., ‗Mapping the Legal and Administrative Frameworks of Access Rights in Europe – A Cross-European Comparative Analysis‘ 34 Law Governance and Technology (2017), available at: http://irissproject.eu/wp-content/uploads/2014/06/IRISS-WP5-Summary-Meta-Analyses-for-Press-Release.pdf ,(last accessed 22 October 2017). 576 B.J. Koops, ‗The Trouble with European Data Protection Law‘, 4(4) International Data Privacy Law, (1 November 2014), available at: http://www.isaca.org/Groups/Professional-English/privacy-data- protection/GroupDocuments/2014-08- 24%20%20The%20Trouble%20with%20European%20Data%20Protection%20Law.pdf ,(last accessed 22 October 2017). 125
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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
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(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 and 132: 2. Data Quality: The principle of d
Page 133: data protection laws across jurisdi
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
Page 183 and 184: 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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