white_paper_on_data_protection_in_india_171127_final_v2

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Australia The Privacy Act requires credit rating bodies to ensure that regular audits are carried out by an independent person to ensure that certain agreements with credit providers are being complied with. 749 South Africa Under Section 89 of the POPI Act, the Information Regulator is required to assess ―whether an instance of processing of personal information complies with the provisions of [the] Act‖ in the prescribed manner. It may do so on its own initiative or on request by or on behalf of the responsible party, data subject or any other person. The provision clarifies the mandatory nature of such assessment, stating that it must be carried out by the Information Regulator ―if it appears to be appropriate‖ though it may not make the assessment if, on a request, it is unable to identify the requester or the action that must be assessed. 750 Information notices are sent to the relevant organisation towards initiating an assessment. 751 A provision is also made regarding the assessment report resulting from the assessment process. 752 The report is to be given to the responsible party and the Information Regulator may also make any aspect of the assessment public if it is in public interest to do so. (iv) Data Protection Officer The designation of a specific individual or officer by a data controller to facilitate compliance through monitoring and advising as well as to act as a point of contact with a data protection authority is a crucial element of data protection laws. These individuals are often called data protection officers (DPOs). 753 It is relevant to note that in the present Indian legal framework, a body corporate is required to designate a grievance officer for grievance redressal purposes with certain details of the same posted on the body corporate‘s website. 754 International Practices European Union 749 Sections 20N (3)(b) and 20Q(2)(b), Privacy Act. 750 Section 89(2), POPI Act. The criteria that the Information Regulator is to keep in mind when determining when it is ‗appropriate‘ to make the assessment is also laid down. See Section 89(3), POPI Act. 751 Section 90, POPI Act. 752 Section 91, POPI Act. 753 For example, as part of EU GDPR‘s accountability-based compliance framework, DPOs will be at the heart of the regulatory scheme, facilitating compliance with the provisions of the EU GDPR as key players: See Article 29 Data Protection Working Party, ‗Guidelines on Data Protection Officers (‗DPOs‘)‘, European Commission (13 December 2016), 4-5, available at: http://ec.europa.eu/newsroom/document.cfm?doc_id=43823, (last accessed 20 November 2017). 754 Rule 5(9), SPDI Rules. 170
Under the EU GDPR, only certain data controllers are required to designate a DPO. 755 Some provision is also made to maintain the independence and effectiveness of this officer. 756 The tasks of the DPO include informing and advising on as well as monitoring compliance, advising on and monitoring the performance of DPIAs, cooperating with the supervisory authority and acting as the authorities‘ contact point on all relevant issues. 757 Canada Under the PIPEDA, an accountability framework is built around certain individuals who have been designated by an organisation for compliance with accountability provisions 758 and for receiving challenges/complaints regarding compliance. 759 The PIPEDA also states that the designation of such individuals does not relieve organisations of their duty to comply with obligations. 760 South Africa The POPI Act adopts the designation of an information officer from the Promotion of Access to Information Act, 2000. 761 Further, it provides for certain additional obligations for the information officer such as encouraging organisational compliance with the relevant law, dealing with requests made to the body under that law, and working with the Information Regulator in relation to investigations. 762 2.16 Provisional Views 1. The effective enforcement of a data protection law may require some form of differentiated obligations so that certain entities covered under the framework whose processing activities create higher degrees of risk or may cause significant harm can be more readily engaged with and guided in ensuring compliance with relevant obligations. 755 Article 37, EU GDPR. (The provision outlines three situations in which the obligation to appoint a DPO arises: first, for a public authority or body (except a court) carrying out processing; second, where the controller core activities require regular, systematic and large scale monitoring of persons; and third, where such core activities require large scale monitoring of certain special categories of data). 756 Article 38, EU GDPR. (The DPO may be a staff member or may be on a service contract. It is further mandated that the DPO is to receive adequate support and should not be instructed on his data protection tasks or dismissed or penalised for performing them. Any other tasks he is asked to fulfil should not create any conflict of interest). 757 Article 39, EU GDPR. Further, there is no provision in the UK DPA for the appointment of a DPO: See Anita Bapat and Adam Smith, ‗United Kingdom: Data Protection 2017,‘ International Comparative Legal Guides (ICLG) (15 May 2017), available at: https://iclg.com/practice-areas/data-protection/data-protection-2017/unitedkingdom, (last accessed 6 November 2017). 758 Principle 1 of Schedule 1, PIPEDA (Accountability). 759 Principle 10 of Schedule 1, PIPEDA (Challenging Compliance). 760 Section 6, PIPEDA. Further, there is no provision in the Australian (Privacy Act) for for the appointment of a DPO: See Melissa Fai and Alex Borowsky, ‗Australia: Data Protection 2017‘, International Comparative Legal Guides (ICLG) (15 May 2017), available at: https://iclg.com/practice-areas/data-protection/data-protection- 2017/australia, (last accessed 6 November 2017). 761 Section 1, POPI Act. 762 Section 55, POPI Act. 171
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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
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CHAPTER 5: PURPOSE SPECIFICATION AN
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collected for more than one purpose
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enable data controllers to understa
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CHAPTER 6: PROCESSING OF SENSITIVE
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may instrumentally be caused if the
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PIPEDA does not specifically deal w
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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 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: The Treasury Board of Canada Secret
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
Page 205 and 206: to an overly adverse impact on smal
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
Page 217 and 218: 6. Are there any other views relati
Page 219 and 220: 2. Should the definition of process
Page 221 and 222: 1. What are your views on including
Page 223 and 224: 9. Data Localisation Data localisat
Page 225 and 226: 2. Child’s Consent It is estimate
Page 227 and 228: Alternatives: a. Assigning a ‗dat
Page 229 and 230: 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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