white_paper_on_data_protection_in_india_171127_final_v2

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accurate, complete and kept up-to-date. These principles cast certain obligations on data controllers. The extent of such obligations must be carefully determined. For a fuller discussion, see page 117 above. Questions 1. What are your views on the principles of storage limitation and data quality? 2. On whom should the primary onus of ensuring accuracy of data lie especially when consent is the basis of collection? Alternatives: a. The individual b. The entity collecting the data 3. How long should an organisation be permitted to store personal data? What happens upon completion of such time period? Alternatives: a. Data should be completely erased b. Data may be retained in anonymised form 4. If there are alternatives to a one-size-fits-all model of regulation (same rules applying to all types of entities and data being collected by them) what might those alternatives be? 5. Are there any other views relating to the concpets of storage limitation and data quality which have not been considered above? 8. Individual Participation Rights-1 One of the core principles of data privacy law is the ―individual participation principle‖ which stipulates that the processing of personal data must be transparent to, and capable of being influenced by, the data subject. Intrinsic to this principle are the rights of confirmation, access, and rectification. Incorporation of such rights has to be balanced against technical, financial and operational challenges in implementation. For a fuller discussion, see page 122 above. Questions 1. What are your views in relation to the above? 220
2. Should there be a restriction on the categories of information that an individual should be entitled to when exercising their right to access? 3. What should be the scope of the right to rectification? Should it only extend to having inaccurate date rectified or should it include the right to move court to get an order to rectify, block, erase or destroy inaccurate data as is the case with the UK? 4. Should there be a fee imposed on exercising the right to access and rectify one‘s personal data? Alternatives: a. There should be no fee imposed. b. The data controller should be allowed to impose a reasonable fee. c. The data protection authority/sectoral regulators may prescribe a reasonable fee. 5. Should there be a fixed time period within which organisations must respond to such requests? If so, what should these be? 6. Is guaranteeing a right to access the logic behind automated decisions technically feasible? How should India approach this issue given the challenges associated with it? 7. What should be the exceptions to individual participation rights? [For instance, in the UK, a right to access can be refused if compliance with such a request will be impossible or involve a disproportionate effort. In case of South Africa and Australia, the exceptions vary depending on whether the organisation is a private body or a public body.] 8. Are there any other views on this, which have not been considered above? 9. Individual Participation Rights-2 In addition to confirmation, access and rectification, the EU GDPR has recognised other individual participation rights, viz. the right to object to processing (including for Direct marketing), the right not to be subject to a decision solely based on automated processing, the right to restrict processing, and the right to data portability. These rights are inchoate and some such as those related to Direct Marketing overlap with sectoral regulations. The suitability of incorporation of such rights must be assessed in light of their implementability in the Indian context. For a fuller discussion, see page 129 above. Questions 221
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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
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eputation, and loss of confidential
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There is a need to put in place a n
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C. CATEGORISATION OF DATA CONTROLLE
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Page 187 and 188: and approval of the appointment by
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Page 191 and 192: . Advisory The functions of the OAI
Page 193 and 194: standards be set by different entit
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Page 199 and 200: 5. Given that the Appellate Tribuna
Page 201 and 202: CHAPTER 4: REMEDIES A. PENALTIES In
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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 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: If ‗sensitive personal data‘ is
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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