white_paper_on_data_protection_in_india_171127_final_v2

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9.5 Questions 1. What are your views on the above individual participation rights? 2. The EU GDPR introduces the right to restrict processing and the right to data portability. If India were to adopt these rights, what should be their scope? 3. Should there be a prohibition on evaluative decisions taken on the basis of automated decisions ? Alternatives: a. There should be a right to object to automated decisions as is the case with the UK. b. There should a prohibition on evaluative decisions based on automated decision making. 4. Given the concerns related to automated decision making, including the feasibility of the right envisioned under the EU GDPR, how should India approach this issue in the law? 5. Should direct marketing be a discrete privacy principle, or should it be addressed via sector specific regulations? 6. Are there any alternative views which have not been considered? 136
CHAPTER 10: INDIVIDUAL PARTICIPATION RIGHTS 3- RIGHT TO BE 10.1 Introduction FORGOTTEN The right to be forgotten in the digital sphere refers to the right of individuals to request data controllers to erase any data about them from their systems. 630 The principal driver behind the idea of the right to be forgotten is the massive expansion in the availability and accessibility of information associated with the digital world of the Internet. 631 It is quite common for Internet users to reveal personal information they later regret, 632 or to have information posted about them that they wished had remained secret. 633 Information posted on the Internet is never truly forgotten. Once personal data enters the online ecosystem, the original purpose behind disclosure becomes irrelevant. 634 When allowed to flow freely, data is open to interpretation and use (or misuse) completely divorced from their original context. 635 Often, the very fact of certain information being online may itself cause considerable embarrassment and loss of reputation for an individual. For example, in the Google Spain Case, 636 an old article concerning an attachment and garnishment action against a Spanish individual (that was later resolved) was the first link when anyone ran an online search of this individual‘s name which allegedly resulted in his loss of reputation. The Indian judiciary through the Karnataka High Court in Sri Vasunathan v. The Registrar General 637 has recognised the right to be forgotten and safeguarded the same in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned, in particular. Further, the importance of a right to be forgotten was further emphasised by the Supreme Court in Puttaswamy. 638 The 630 Viktor Mayer-Schonberger, ‗Delete: The virtue of forgetting in the digital age‘ (Princeton University Press, 2011). 631 Frank La Rue, ‗Report of the Human Rights Council‘s Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression‘, 19, (A/HRC/17/27) (16 May 2011), available at: http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf, (last accessed 28 October 2017). 632 Snyder v. Millersville University No. 07-1660, (2008) WL 5093140; See Yang Wang et al., ‗I regretted the minute I pressed share: A Qualitative Study of Regrets on Facebook‘, Symposium on Usable Privacy and Security, Pittsburgh, (July 20–22, 2011), available at: http://citeseerx.ist.psu.edu/viewdoc/download?rep=rep1&type=pdf&doi=10.1.1.207.8881, (last accessed 28 October 2017). 633 Balsley v. LFP, Inc No. 1:08 CV 491, (2011) WL 1298i80. 634 See Charles J. Sykes, ‗The End of Privacy‘ 221 (1999, Macmillan); Jonathan Zittrain, ‗The Future of the Internet-and How to Stop It‘ (Yale University Press, 2008); Jeffrey Rosen, ‗The Web Means the End of Forgetting‘, New York Times Magazine (21 July 2010), available at: http://www.nytimes.com/2010/07/25/magazine/25privacy-t2.html?pagewanted=all, (last accessed 25 October 2017). 635 James Boyle, ‗Shamans, Software, and Spleens: Law and the Construction of the Information Society‘ (Harvard University Press, 1996); Helen Nissenbaum, ‗Privacy in Context-Technology, Policy, and the Integrity of Social Life‘, 36, (Stanford University Press, 2010). 636 Google Spain SL and Google Inc. v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, Case C131/12, (2014), European Court of Justice. 637 Sri Vasunathan v. The Registrar General, 2017 SCC OnLine Kar 424. 638 Justice K.S. Puttaswamy (Retd.)& Anr. v. Union of India & Ors., (2017) 10 SCALE 1. 137
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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
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amounts of computer hardware, they
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In Indonesia, the regulation regard
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Distribution of Insurance Products)
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Another advantage of relying on con
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individuals may find it impossible
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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 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: from being taken solely on the basi
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
Page 185 and 186: D. DATA PROTECTION AUTHORITY 2.18 I
Page 187 and 188: and approval of the appointment by
Page 189 and 190: The supervisory authority shall pro
Page 191 and 192: . Advisory The functions of the OAI
Page 193 and 194: standards be set by different entit
Page 195 and 196: 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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