white_paper_on_data_protection_in_india_171127_final_v2

CHAPTER 9: INDIVIDUAL PARTICIPATION RIGHTS-2
Rights: Right to Object to Processing, Right to Object to processing for purpose of Direct
Marketing, Right to not be subject to a decision based solely on automated processing, Right
to Data Portability, and, Right to restrict processing.
9.1 Introduction
In addition to confirmation, access and rectification, certain other individual participation
rights have been recognised. 594 While their recognition is primarily in the EU and countries
which follow a similar model for regulation, the rationale for their inclusion in this <strong>paper</strong> is to
demonstrate current thinking around the remit of participation rights and assess their
justification and suitability for India. These rights are:
(i)
The right to object to processing
The essence of the right to object to processing is that even when personal data is being
processed on lawful grounds, the competing rights and interests of the individual may trump
those of the data controller. An individual has the right to object to processing, on grounds
relating to her particular circumstance 595 , when such processing is carried out either in
exercise of official authority or in public interest, or on the ground of legitimate interest. 596
Further, the data controller must stop processing of such data unless it is able to demonstrate
that it has a compelling legitimate interest which overrides the interests, rights and freedoms
of the individual, or processing serves the establishment, the exercise or defence of its legal
rights.
(ii)
The right to object to processing for the purpose of direct marketing
Direct marketing is any advertising or marketing communication that is directed to particular
individuals. 597 Direct marketers generally compile personal data about individuals such as
contact details from multiple sources, including publicly available sources. 598 Thus an
individual may not, in all circumstances, have consented to the processing of their personal
data for direct marketing.
Processing of personal data for the purpose of direct marketing has garnered significant
attention across jurisdictions thus warranting a specific provision for its regulation in data
594 These are the right to object to processing generally and for direct marketing, to not be subject to a decision
based solely on automated processing,
595 Illustrations of particular circumstances include an individual‘s family circumstances or professional interests
in confidentiality. See Paul Voight and Axel Von Dem Bussche, ‗The EU General Data Protection Regulation
(GDPR): A Practical Guide‘ (Springer, 2017).
596 These grounds of processing have been explained in Part III, Chapter 4 of this White Paper.
597 Thomas Reuters Practical Law, ‗Direct marketing: a quick guide‘ available at: https://goo.gl/nZz15o , (last
accessed 24 October 2017).
598
Australian Law Reform Commission, ‗Direct Marketing: Introduction‘, available at:
https://www.alrc.gov.au/publications/26.%20Direct%20Marketing/introduction, (last accessed 24 October
2017).
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