white_paper_on_data_protection_in_india_171127_final_v2

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6. Should the data controllers be required by law to take out insurance policies to meet their liability on account of any processing which results in harm to data subjects? Should this be limited to certain data controllers or certain kinds of processing? 7. If the data protection law calls for accountability as a mechanism for protection of privacy, what would be impact on industry and other sectors? 8. Are there any other issues or concerns regarding accountability which have not been considered above? 156
ENFORCEMENT TOOLS 2.6 Introduction A number of regulatory tools and mechanisms may be simultaneously utilized to achieve different enforcement objectives. Some of these may be based on a coregulatory model whereas others may be based on a ‗command and control‘ approach. These are discussed below. A. CODES OF PRACTICE 2.7 Issues A code of practice or conduct is considered an important element in establishing a workable co-regulatory data protection scheme. As has been discussed in Part IV, Chapter 1 of the White Paper, a co-regulatory framework is one that integrates elements of self-regulation with elements of governmental regulation. Codes of conduct originate in ordinary industry practices where associations engage in standard-setting for better service provision or manufacturing. They thus naturally form part of some self-regulatory systems in the form of voluntary codes with no force of law. However, in a co-regulatory system, a code of conduct or practice is integrated into the broader regulatory scheme through recognition of different types in the general statute. While adoption of a code remains voluntary and its formulation still involves industry participation, co-regulation may involve encouraging their creation or allowing compliance with them to serve as evidence of compliance with the data protection statute. Issuance of such codes by a regulator or other forms of legal recognition allows for such standard-setting practices to be formalised and anchored to statutory processes. This would also improve the transparency of the processes by which such codes are formulated while codes themselves create transparency regarding how information is being processed in practice. 712 Codes of conduct suffer from some issues when conceived of as purely self-regulatory. 713 However, when such codes are viewed as part of a co-regulatory framework, their true potential can be exploited. The manner in which co-regulation can introduce government oversight and other elements of accountability is illustrated in international practices below. 712 OAIC, ‗Guidelines for developing codes – issued under Part IIIB of the Privacy Act 1988‘ (September 2013), 2, available at: https://www.oaic.gov.au/resources/agencies-and-organisations/advisory-guidelines/guidelinesfor-developing-codes.pdf, (last accessed 28 October 2017). 713 Margot Priest, ‗The Privatization of Regulation: Five Models of Self-Regulation‘, 29(2) Ottawa Law Review 233, 242 (1998) (Codes of conduct only create accountability towards each other and not to the government; they engage in purely consensual rule-making; there is no real adjudication of violations or dispute resolution; there are very limited sanctions for violation apart from trade association dismissal; there is only limited coverage of the code across the industry due to its voluntary nature; and there is only rarely any involvement of the public or stakeholders external to the industry, no matter how large their stake). 157
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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
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3.3 International Practices Despite
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(CALOPPA) 466 and the GLB Act requi
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CHAPTER 4: OTHER GROUNDS OF PROCESS
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This ground covers two types of sce
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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 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: with developing certain baseline ac
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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Page 207 and 208: B. COMPENSATION Awarding of compens
Page 209 and 210: United Kingdom As per the guidance
Page 211 and 212: C. OFFENCES There are certain types
Page 213 and 214: 4.11 Provisional Views 1. The law m
Page 215 and 216: 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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