white_paper_on_data_protection_in_india_171127_final_v2

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5. How can the enforcement mechanisms under the proposed law monitor/control processing of personal data under this exemption? 6. Do we need to define obligations of law enforcement agencies to protect personal data in their possession? 7. Can the Data Protection Authority or/and a third-party challenge processing covered under this exemption? 8. What other measures can be taken in order to ensure that this exemption is used for bona fide purposes? 9. Are there any other views on these exemptions? Additional Exemptions 1. Should ‗prevention of crime‘ be separately included as ground for exemption? 2. Should a separate exemption for assessment and collection of tax in accordance with the relevant statutes be included? 3. Are there any other categories of information which should be exempt from the ambit of a data protection law? 8. Cross Border Flow of Data Given the advent of the Internet, huge quantities of personal data are regularly transferred across national borders. Providing strong rules to govern such data flows is vital for all entities in the data eco-system. For a fuller discussion, see page 62 above. Questions 1. What are your views on cross-border transfer of data? 2. Should the data protection law have specific provisions facilitating cross border transfer of data? If yes, should the adequacy standard be the threshold test for transfer of data? 3. Should certain types of sensitive personal information be prohibited from being transferred outside India even if it fulfils the test for transfer? 4. Are there any other views which have not been considered? 212
9. Data Localisation Data localisation requires companies to store and process data on servers physically located within national borders. Several governments, driven by concerns over privacy, security, surveillance and law enforcement, have been enacting legislations that necessitate localisation of data. Localisation measures pose detrimental effects for companies may, harm Internet users, and fragment the global Internet. For a fuller discussion, see page 69 above. Questions 1. What are your views on data localisation? 2. Should there be a data localisation requirement for the storage of personal data within the jurisdiction of India? 3. If yes, what should be the scope of the localisation mandate? Should it include all personal information or only sensitive personal information? 4. If the data protection law calls for localisation, what would be impact on industry and other sectors? 5. Are there any other issues or concerns regarding data localisation which have not been considered above? 10. Allied Laws Currently, there are a variety of laws in India which contain provisions dealing with the processing of data, which includes personal data as well as sensitive personal data. These laws operate in various sectors, such as, the financial sector, health sector and the information technology sector. Consequently, such laws may need to be examined against a new data protection legal and regulatory framework as and when such framework comes into existence in India. For a fuller discussion, see page 76 above. Questions Comments are invited from stakeholders on how each of these laws may need to be reconciled with the obligations for data processing introduced under a new data protection law. 213
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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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Australia The Privacy Act makes ext
Page 171 and 172: B. PERSONAL DATA BREACH NOTIFICATIO
Page 173 and 174: eputation, and loss of confidential
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Page 177 and 178: C. CATEGORISATION OF DATA CONTROLLE
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Page 181 and 182: Under the EU GDPR, only certain dat
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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 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: 1. What are your views on including
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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