white_paper_on_data_protection_in_india_171127_final_v2

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For a fuller discussion, see page 30 above. Questions 1. What are your views on the issues relating to applicability of a data protection law in India in relation to: (i) natural/juristic person; (ii) public and private sector; and (iii) retrospective application of such law? 2. Should the law seek to protect data relating to juristic persons in addition to protecting personal data relating to individuals? Alternatives: a. The law could regulate personal data of natural persons alone. b. The law could regulate data of natural persons and companies as in South Africa. However, this is rare as most data protection legislations protect data of natural persons alone. 3. Should the law be applicable to government/public and private entities processing data equally? If not, should there be a separate law to regulate government/public entities collecting data? Alternatives: a. Have a common law imposing obligations on Government and private bodies as is the case in most jurisdictions. Legitimate interests of the State can be protected through relevant exemptions and other provisions. b. Have different laws defining obligations on the government and the private sector. 4. Should the law provide protection retrospectively? If yes, what should be the extent of retrospective application? Should the law apply in respect of lawful and fair processing of data collected prior to the enactment of the law? Alternatives: a. The law should be applicable retrospectively in respect of all obligations. b. The law will apply to processes such as storing, sharing, etc. irrespective of when data was collected while some requirements such as grounds of processing may be relaxed for data collected in the past. 5. Should the law provide for a time period within which all regulated entities will have to comply with the provisions of the data protection law? 206
6. Are there any other views relating to the above concepts? 3. Definition of Personal Data The definition of personal information or personal data is the critical element which determines the zone of informational privacy guaranteed by a data protection legislation. Thus, it is important to accurately define personal information or personal data which will trigger the application of the data protection law. For a fuller discussion, see page 34 above. Questions 1. What are your views on the contours of the definition of personal data or information? 2. For the purpose of a data protection law, should the term ‗personal data‘ or ‗personal information‘ be used? Alternatives: a. The SPDI Rules use the term sensitive personal information or data. b. Adopt one term, personal data as in the EU GDPR or personal information as in Australia, Canada or South Africa. 3. What kind of data or information qualifies as personal data? Should it include any kind of information including facts, opinions or assessments irrespective of their accuracy? 4. Should the definition of personal data focus on identifiability of an individual? If yes, should it be limited to an ‗identified‘, ‗identifiable‘ or ‗reasonably identifiable‘ individual? 5. Should anonymised or pseudonymised data be outside the purview of personal data? Should the law recommend either anonymisation or psuedonymisation, for instance as the EU GDPR does? [Anonymisation seeks to remove the identity of the individual from the data, while pseudonymisation seeks to disguise the identity of the individual from data. Anonymised data falls outside the scope of personal data in most data protection laws while psuedonymised data continues to be personal data. The EU GDPR actively recommends psuedonymisation of data.] 6. Should there be a differentiated level of protection for data where an individual is identified when compared to data where an individual may be identifiable or reasonably 207
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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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emove data for ―the processing of
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South Africa Section 24 of the POPI
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PART IV REGULATION AND ENFORCEMENT
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they form core, substantive element
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CHAPTER 2: ACCOUNTABILITY AND ENFOR
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have been taken or that the data su
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The EU GDPR focuses on a ―risk ba
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person who processes personal infor
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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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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: SCOPE AND EXEMPTIONS 1. Territorial
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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