white_paper_on_data_protection_in_india_171127_final_v2

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The EU GDPR has chosen to recognise the right to be forgotten; 646 however, it has done so while acknowledging the social ramifications of obliterating all aspects of the past existence of certain data. According to the regulation, an individual who is no longer desirous of his personal data to be processed or stored would be able to erase it so long as the personal data is no longer necessary, relevant, or is incorrect and serves no legitimate interest. 647 Thus, it would follow that the right cannot be exercised where the information/data is necessary; for exercising the right of freedom of expression and information, for compliance with legal obligations, for the performance of a task carried out in public interest, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the exercise or defence of legal claims. 648 Under the EU GDPR, the decision on whether the right to erasure can be exercised, is to be taken by the data controller. 649 The quantum of fine that is applicable to the data controller if such an entity takes an incorrect view or otherwise infringes Article 17 of the EU GDPR (right to erasure) may amount to 20 million euros or up to four percent of the total worldwide annual turnover of the preceding financial year, whichever is higher. 650 Canada Schedule 1, Principle 5 of PIPEDA provides the deletion of personal information that is no longer required. 651 Further, organisations are mandated to develop guidelines and implement procedures. Though PIPEDA allows the erasure of personal information to a certain extent, it is often criticised for including loopholes that allow freedom of speech to outweigh the right to be forgotten. It is thought that the right to be forgotten cannot be shoehorned into existing privacy law because search engines do not come within the scope of PIPEDA and the activity of indexing newsworthy content online is subject to the journalism exception in PIPEDA. Furthermore, any attempt to compel a search engine to not include particular resultsparticularly pointing to lawful content- falls foul of the freedom of expression right under the Canadian Charter of Rights and Freedoms. 652 646 Michael L. Rustad, Sanna Kulevska, ‗Reconceptualising the right to be forgotten to enable transatlantic data flow‘, 28(2) Harvard Journal of Law & Technology 349 (2015). 647 Article 17, EU GDPR. 648 Article 17, EU GDPR. 649 Article 17, EU GDPR. 650 Article 83, EU GDPR. 651 Schedule 1, Principle 5 of PIPEDA; Office of the Privacy Commissioner of Canada, ‗Schedule 1, Principle 5 of PIPEDA; Personal Information Retention and Disposal: Principles and Best Practices‘ (June 2014), available at: https://www.priv.gc.ca/en/privacy-topics/safeguarding-personal-information/gd_rd_201406/ ,(last accessed 28 October 2017). 652 David T.S. Fraser, ‗You‘d better forget the right to be forgotten in Canada‘ (April 2016), available at: http://blog.privacylawyer.ca/2016/04/youd-better-forget-right-to-be.html, (last accessed 28 October 2017) cited in Office of the Privacy Commissioner of Canada, ‗Submissions received for the consultation on Online Reputation‘, available at: https://www.priv.gc.ca/en/about-the-opc/what-we-do/consultations/consultation-ononline-reputation/submissions-received-for-the-consultation-on-online-reputation/or/sub_or_07/ (last accessed 21 November 2017). 140
South Africa Section 24 of the POPI Act states that personal information may only be stored or used to the extent it is adequate, relevant and not excessive in relation to its purpose. 653 Although POPI Act does not explicitly grant a right to be forgotten, Section 24 allows data subjects to request responsible parties to correct or delete personal information or records. 654 The right to be forgotten in POPI Act only allows for deletion of personal information that is ―inaccurate, irrelevant, excessive, out-of-date, incomplete, misleading or obtained unlawfully.‖ In addition, the act also requires responsible parties to delete or destroy records that should no longer be retained. 655 10.4 Provisional Views 1. The right to be forgotten may be incorporated within the data protection framework for India as has been adverted to by the Supreme Court in Puttaswamy. Further, international practices in the EU GDPR and Canada also envisage a right to be forgotten in some form or manner thus strengthening the case for its incorporation. 2. The right to be forgotten should be designed in such a manner that it adequately balances the right to freedom of speech and expression with the right to privacy. The scope and contours of such a right may be determined in accordance with the capabilities of the data controllers to undertake the balancing exercise and determine the legitimacy of the request. Further, clear parameters on the basis of which a controller will carry out the balancing exercise may be incorporated in the law to enable them to effectively carry out this exercise. A residuary role for a sector regulator to develop particular guidelines for each sector may become necessary. 10.5 Questions 1. What are your views on the right to be forgotten having a place in India‘s data protection law? 2. Should the right to be forgotten be restricted to personal data that individuals have given out themselves? 3. Does a right to be forgotten add any additional protection to data subjects not already available in other individual participation rights? 4. Does a right to be forgotten entail prohibition on display/dissemination or the erasure of the information from the controller‘s possession? 653 Section 24, POPI Act. 654 Section 24, POPI Act. 655 Andrew Weeks, ‗The Right to Be Forgotten in South Africa‘, Michalsons (26 March 2013), available at: https://www.michalsons.com/blog/the-right-to-be-forgotten/11868, (last accessed 28 October 2017). 141
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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
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CHAPTER 2: CHILD’S CONSENT 2.1 In
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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 and 146: from being taken solely on the basi
Page 147 and 148: CHAPTER 10: INDIVIDUAL PARTICIPATIO
Page 149: emove data for ―the processing of
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
Page 197 and 198: notices‘ 827 and ‗information n
Page 199 and 200: 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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