white_paper_on_data_protection_in_india_171127_final_v2

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1.3 Provisional Views Given that a co-regulation model envisages a spectrum of frameworks involving varying levels of government involvement and industry participation, it may be appropriate to pursue such a model that may be moulded to meet the circumstances as they emerge in the Indian context. It is also relevant to note that the co-regulation model is being adopted in most modern data protection systems to respond to the peculiar characteristics of this field of law. 1.4 Questions 1. What are your views on the above described models of enforcement? 2. Does co-regulation seem an appropriate approach for a data protection enforcement mechanism in India? 3. What are the specific obligations/areas which may be envisaged under a data protection law in India for a (i) ‗command and control‘ approach; (ii) self-regulation approach (if any); and (iii) co-regulation approach? 4. Are there any alternative views to this? 146
CHAPTER 2: ACCOUNTABILITY AND ENFORCEMENT TOOLS ACCOUNTABILITY 2.1 Introduction The processing of personal data entails an increase of power (in terms of knowledge and its consequent insights) of the data controller vis-à-vis the individual. Data protection regulations are a means to help protect individuals from abuses of power resulting from the processing of their personal data. The method by which this protection was traditionally sought to be achieved was using notice and consent, offering the individual the autonomy to decide whether or not to allow her data to be processed after providing her full knowledge of what was going to be done with that data. As we have seen, that model has begun to come under pressure. Owing to the abundance of services, the complexity of data processing requirements and the multiplicity of purposes to which data can be put, notices have become too complex to understand. As a result, the concept of privacy self-management is coming under pressure given the complexity of the trade-offs between the benefits and the harms of modern technology. To offset the flaws of the notice and choice model, a key principle that has emerged is of accountability as articulated in the EU GDPR. Central to accountability are the concepts of ‗privacy by design‘ and ‗privacy by default‘ which oblige businesses to consider data privacy at the initial design stages of a project as well as throughout the life cycle of the relevant data processing. 669 In this sense, accountability does not redefine data protection, nor does it replace existing law or regulation, since accountable organisations must comply with existing applicable law. Instead, accountability shifts the focus of privacy governance to an organisation‘s ability to demonstrate its capacity to achieve specified privacy objectives. 670 A recent <strong>paper</strong> has suggested a much more aggressive use of accountability by holding data controllers responsible for all data under its control so much so that if a data subject suffers any harm as a result of a security breach or from the manner in which the data is processed, the data controller will be held liable for these harms. 671 The essential elements of the principle of accountability in the EU are two-fold. First, a data controller should take appropriate measures to implement data protection principles. Second, 669 Andrew Dunlop, Burges Salmon LLP, ‗GDPR: The Accountability Principle‘, Lexology (10 November 2016), available at: https://www.lexology.com/library/detail.aspx?g=5454293d-7fea-4963-afc4-7e4310ed0a1e, (last accessed 23 November 2017). 670 Centre for Information Policy Leadership, ‗Data Protection Accountability: The Essential Elements A Document for Discussion‘, Hunton & Williams LLP (October 2009), available at: https://www.hunton.com/files/webupload/CIPL_Galway_Accountability_Paper.pdf, (last accessed 21 November 2017). 671 Rahul Matthan, ‗Beyond Consent: A New Paradigm for Data Protection- Discussion Document 2017-03‘, Takshashila Institution (19 July 2017), available at: http://takshashila.org.in/wp-content/uploads/2017/07/TDD- Beyond-Consent-Data-Protection-RM-2017-03.pdf, (last accessed 24 October 2017). 147
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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
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The PIPEDA does not specifically de
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7. How can the requirement for pare
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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 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: they form core, substantive element
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
Page 201 and 202: CHAPTER 4: REMEDIES A. PENALTIES In
Page 203 and 204: sector, size, financial and other r
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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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