white_paper_on_data_protection_in_india_171127_final_v2

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GROUNDS OF PROCESSING, OBLIGATION ON ENTITIES AND INDIVIDUAL RIGHTS 1. Consent Most jurisdictions treat consent as one of the grounds for processing of personal data. However, consent is often not meaningful or informed, which raises issues of the extent to which it genuinely expresses the autonomous choice of an individual. Thus, the validity of consent and its effectiveness needs to be closely examined. For a fuller discussion, see page 78 above. Questions 1. What are your views on relying on consent as a primary ground for processing personal data? Alternatives: a. Consent will be the primary ground for processing. b. Consent will be treated at par with other grounds for processing. c. Consent may not be a ground for processing. 2. What should be the conditions for valid consent? Should specific requirements such as ‗unambiguous‘, ‗freely given‘ etc. as in the EU GDPR be imposed? Would mandating such requirements be excessively onerous? 3. How can consent fatigue and multiplicity of notices be avoided? Are there any legal or technology-driven solutions to this? 4. Should different standards for consent be set out in law? Or should data controllers be allowed to make context-specific determinations? 5. Would having very stringent conditions for obtaining valid consent be detrimental to day-to-day business activities? How can this be avoided? 6. Are there any other views regarding consent which have not been explored above? 214
2. Child’s Consent It is estimated that globally, one in three Internet users is a child under the age of 18. Keeping in mind their vulnerability and increased exposure to risks online, a data protection law must sufficiently protect their interests. For a fuller discussion, see page 85 above. Questions 1. What are your views regarding the protection of a child‘s personal data? 2. Should the data protection law have a provision specifically tailored towards protecting children‘s personal data? 3. Should the law prescribe a certain age-bar, above which a child is considered to be capable of providing valid consent? If so, what would the cut-off age be? 4. Should the data protection law follow the South African approach and prohibit the processing of any personal data relating to a child, as long as she is below the age of 18, subject to narrow exceptions? 5. Should the data protection law follow the Australian approach, and the data controller be given the responsibility to determine whether the individual has the capacity to provide consent, on a case by case basis? Would this requirement be too onerous on the data controller? Would relying on the data controller to make this judgment sufficiently protect the child from the harm that could come from improper processing? 6. If a subjective test is used in determining whether a child is capable of providing valid consent, who would be responsible for conducting this test? Alternatives: a. The data protection authority b. The entity which collects the information c. This can be obviated by seeking parental consent 7. How can the requirement for parental consent be operationalised in practice? What are the safeguards which would be required? 8. Would a purpose-based restriction on the collection of personal data of a child be effective? For example, forbidding the collection of children‘s data for marketing, advertising and tracking purposes? 215
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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
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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
Page 179 and 180: The Treasury Board of Canada Secret
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 and 222: 1. What are your views on including
Page 223: 9. Data Localisation Data localisat
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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