white_paper_on_data_protection_in_india_171127_final_v2

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3. How should responsibility among different entities involved in the processing of data be distributed? Alternatives: a. Making data controllers key owner and making them accountable. b. Clear bifurcation of roles and associated expectations from various entities. c. Defining liability conditions for primary and secondary owners of personal data. d. Dictating terms/clauses for data protection in the contracts signed between them. e. Use of contractual law for providing protection to data subject from data processor. 4. Are there any other views on data controllers or processors which have not been considered above? 7. Exemptions A data controller may be exempted from certain obligations of a data protection law based on the nature and purpose of the processing activity eg. certain legitimate aims of the state. The scope of such exemptions, also recognised by the Supreme Court in Puttaswamy needs to be carefully formulated. For a fuller discussion, see page 52 above. Questions 1. What are the categories of exemptions that can be incorporated in the data protection law? 2. What are the basic security safeguards/organisational measures which should be prescribed when processing is carried out on an exempted ground, if any? Domestic /Household Processing 1. What are your views on including domestic/household processing as an exemption? 2. What are the scope of activities that will be included under this exemption? 3. Can terms such as ‗domestic‘ or ‗household purpose‘ be defined? 4. Are there any other views on this exemption? Journalistic/Artistic/ Literary Purpose 210
1. What are your views on including journalistic/artistic/literary purpose as an exemption? 2. Should exemptions for journalistic purpose be included? If so, what should be their scope? 3. Can terms such as ‗journalist‘ and ‗journalistic purpose‘ be defined? 4. Would these activities also include publishing of information by non-media organisations? 5. What would be the scope of activities included for ‗literary‘ or ‗artistic‘ purpose? Should the terms be defined broadly? 6. Are there any other views on this exemption? Research/Historical/Statistical Purpose 1. What are your views on including research/historical/statistical purpose as an exemption? 2. Can there be measures incorporated in the law to exclude activities under this head which are not being conducted for a bonafide purpose? 3. Will the exemption fail to operate if the research conducted in these areas is subsequently published/ or used for a commercial purpose? 4. Are there any other views on this exemption? Investigation and Detection of Crime, National Security 1. What are your views on including investigation and detection of crimes and national security as exemptions? 2. What should be the width of the exemption provided for investigation and detection of crime? Should there be a prior judicial approval mechanism before invoking such a clause? 3. What constitutes a reasonable exemption on the basis of national security? Should other related grounds such as maintenance of public order or security of State be also grounds for exemptions under the law? 4. Should there be a review mechanism after processing information under this exemption? What should the review mechanism entail? 211
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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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with developing certain baseline ac
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ENFORCEMENT TOOLS 2.6 Introduction
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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
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: 2. Should the definition of process
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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