white_paper_on_data_protection_in_india_171127_final_v2

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4. Should appeals from a decision of the adjudicating officer lie with an existing appellate forum, such as, the Appellate Tribunal (TDSAT)? 5. If not the Appellate Tribunal, then what should be the constitution of the appellate authority? 6. What are the instances where the appellate authority should be conferred with original jurisdiction? For instance, adjudication of disputes arising between two or more data controllers, or between a data controller and a group of individuals, or between two or more individuals. 7. How can digital mechanisms of adjudication and redressal (e.g. e-filing, video conferencing etc.) be incorporated in the proposed framework? 8. Should the data protection authority be given the power to grant compensation to an individual? 9. Should there be a cap (e.g. up to Rs. 5 crores) on the amount of compensation which may be granted by the data protection authority? What should be this cap? 10. Can an appeal from an order of the data protection authority granting compensation lie with the National Consumer Disputes Redressal Commission? 11. Should any claim for compensation lie with the district commissions and/or the state commissions set under the COPRA at any stage? 12. In cases where compensation claimed by an individual exceeds the prescribed cap, should compensation claim lie directly with the National Consumer Disputes Redressal Commission? 13. Should class action suits be permitted? 14. How can judicial capacity be assessed? Would conducting judicial impact assessments be useful in this regard? 15. Are there any alternative views other than the ones mentioned above? 190
CHAPTER 4: REMEDIES A. PENALTIES In the context of a data protection law, civil penalties may be calculated in a manner to ensure that the quantum of civil penalty imposed not only acts as a sanction but also acts as a deterrence to data controllers, which have violated their obligations under a data protection law. 4.1 Issues The IT Act does not appear to prescribe civil penalty provisions specifically for violation of data protection obligations. 849 The provisions of the IT Act are limited in their applicability and do not appear to take into account the wide range of instances of data protection violation which may occur due to advancement in technology used towards processing of personal data. Moreover, the quantum of penalty prescribed under the provisions of the IT Act appear to be inadequate and may not act as a deterrence to emerging e-commerce and other technology based players in India. Therefore, the critical issue in relation to civil penalties under a data protection legal framework pertains to the manner in which such penalties may be determined or calculated and the quantum of such penalties which may act as adequate deterrence. 4.2 International Practices European Union The EU GDPR mandates that the administrative fines imposed by a supervisory authority in each individual case must be effective, proportionate and dissuasive. 850 For specific violations, the EU GDPR prescribes an administrative fine of up to EUR 20,000,000, or in the case of an undertaking, up to four percent of the total worldwide turnover of the preceding financial year, whichever is higher. 851 In other words, administrative penalty that may be imposed on a data controller under the EU GDPR is linked to the total worldwide turnover of the preceding financial year of the defaulting data controller. 849 Under the IT Act, civil penalty provisions are limited to instances where any person fails to furnish any document, return or report, or fails to maintain books of accounts or records as may be prescribed (Section 44, IT Act). Moreover, there is a residuary penalty clause which is applicable to instances for which no separate penalty is prescribed and limits the amount of penalty leviable to a maximum of Rs.25,000 (Section 45, IT Act). It may be noted that the IT Act prescribes fines (along with imprisonment) for offences involving breach of privacy and confidentiality under Section 72 and disclosure without consent or in breach of lawful contract under Section 72A. 850 Article 83(1), EU GDPR. 851 Per Article 83(5), EU GDPR, this includes instances where the data controller or data processor has infringed the basic principles for processing (including conditions for consent), data subjects‘ rights, and transfer of personal data to a recipient in a third country or an international organization pursuant to Articles 44-49, EU GDPR. Similar administrative fine is also prescribed where the data controller or data processor does not comply with an order of the supervisory authority. Moreover, for certain other types of infringements, Article 83(4) of the EU GDPR prescribes an administrative fine of up to EUR 10,000,000, or in the case of an undertaking, up to 2% of the total worldwide annual turnover of the preceding financial year, whichever is higher. 191
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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
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data protection laws across jurisdi
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The requirement to be provided the
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Information Act, 1982 or other appr
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CHAPTER 9: INDIVIDUAL PARTICIPATION
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. the processing is unlawful and th
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such a right may be unsuitable in t
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from being taken solely on the basi
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CHAPTER 10: INDIVIDUAL PARTICIPATIO
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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 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: 5. Given that the Appellate Tribuna
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
Page 235 and 236: 1. What are your views on the use o
Page 237 and 238: oth for principled and practical re
Page 239 and 240: Questions 1. What are your views on
Page 241 and 242: 12. In cases where compensation cla
Page 243: 3. What are the mitigating circumst
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