white_paper_on_data_protection_in_india_171127_final_v2

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6. What should be the qualifications of such external persons/agencies carrying out data audits? 7. Are there any alternative views on this? Data Protection Officer 1. What are your views on a data controller appointing a DPO? 2. Should it be mandatory for certain categories of data controllers to designate particular officers as DPOs for the facilitation of compliance and coordination under a data protection legal framework? 3. What should be the qualifications and expertise of such a DPO? 4. What should be the functions and duties of a DPO? 5. Are there any alternative views? 174
D. DATA PROTECTION AUTHORITY 2.18 Issues With rapid technological growth, there has been a surge in the processing of individuals‘ personal data for multiple purposes. The potential for harms to individuals has risen. While a data protection law may be enacted to protect individuals, the implementation and efficacy of such a law may be contingent on the establishment of a robust, independent and technically sound supervisory authority. This is all the more so since issues pertaining to data protection may be highly specialised and may require expertise in several areas such as data analytics, data science, law and associated issues. Currently, in India, there is no separate authority to ensure compliance with data protection obligations required to be followed by data controllers. The IT Act is limited in its scope and provides for the appointment of adjudicating officers 763 and an appellate mechanism, 764 whose primary mandate is restricted to adjudication of disputes arising under the IT Act. Therefore, a stronger mechanism in the form of a central, oversight authority may be required in India in order to effectuate the effective protection of personal data. While there is divergence regarding the structure of enforcement and oversight mechanisms in relation to data protection in various jurisdictions, there appears to be strong support for establishing a single centralised regulatory authority when possible. 765 Several countries have moved from a complex multi-agency regulatory structure to a simpler national agency structure. 766 The benefits of a single, centralised regulatory authority, especially in the context of international trade opportunities, appear to be considerable since multinational companies may have a single point of contact and such an authority can ensure consistency by issuing a single set of rules, guidelines or standards. Moreover, it is easier for individuals to seek guidance and direct queries and complaints in relation to a data protection violation from a single, centralised regulatory authority. 2.19 International Practices (i) Composition and terms of service European Union 763 Section 46, IT Act. 764 Section 48, IT Act. 765 See United Nations Conference on Trade & Development (UNCTAD), ‗Data Protection Regulations and International Data Flows: Implications for Trade and Development‘ (2016) available at: http://unctad.org/en/PublicationsLibrary/dtlstict2016d1_en.pdf, (last accessed 25 October 2017). 766 For example, Japan has moved from 30 regulators to just one. See United Nations Conference on Trade & Development (UNCTAD), ‗Data Protection Regulations and International Data Flows: Implications for Trade and Development‘ (2016) available at: http://unctad.org/en/PublicationsLibrary/dtlstict2016d1_en.pdf, (last accessed 25 October 2017). 175
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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
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solely for archiving purposes in th
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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 and 180: The Treasury Board of Canada Secret
Page 181 and 182: Under the EU GDPR, only certain dat
Page 183: 5. What range of additional obligat
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
Page 231 and 232: 2. Should there be a restriction on
Page 233 and 234: 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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