white_paper_on_data_protection_in_india_171127_final_v2

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what extent data protection rights of an individual have been infringed by a data controller, the loss or damage suffered by the individual due to the said infringement, the remedies available to the individual as well as the penal consequences that the data controller may be liable for. For a fuller discussion, see page 184 above. Questions 1. What are your views in relation to an adjudication process envisaged under a data protection law in India? 2. Should the data protection authority have the power to hear and adjudicate complaints from individuals whose data protection rights have been violated? 3. Where the data protection authority is given the power to adjudicate complaints from individuals, what should be the qualifications and expertise of the adjudicating officer appointed by the data protection authority to hear such matters? 4. Should appeals from a decision of the adjudicating officer lie with an existing appellate forum, such as, the Appellate Tribunal (TDSAT)? 5. If not the Appellate Tribunal, then what should be the constitution of the appellate authority? 6. What are the instances where the appellate authority should be conferred with original jurisdiction? For instance, adjudication of disputes arising between two or more data controllers, or between a data controller and a group of individuals, or between two or more individuals. 7. How can digital mechanisms of adjudication and redressal (e.g. e-filing, video conferencing etc.) be incorporated in the proposed framework? 8. Should the data protection authority be given the power to grant compensation to an individual? 9. Should there be a cap (e.g. up to Rs. 5 crores) on the amount of compensation which may be granted by the data protection authority? What should be this cap? 10. Can an appeal from an order of the data protection authority granting compensation lie with the National Consumer Disputes Redressal Commission? 11. Should any claim for compensation lie with the district commissions and/or the state commissions set under the COPRA at any stage? 230
12. In cases where compensation claimed by an individual exceeds the prescribed cap, should compensation claim lie directly with the National Consumer Disputes Redressal Commission? 13. Should class action suits be permitted? 14. How can judicial capacity be assessed? Would conducting judicial impact assessments be useful in this regard? 15. Are there any alternative views other than the ones mentioned above? 4. Remedies A. Penalties In the context of a data protection law, civil penalties may be calculated in a manner so as to ensure that the quantum of civil penalty imposed not only acts as a sanction but also acts as a deterrence to data controllers, which have violated their obligations under a data protection law. Further, there may be three models (or a combination thereof) possible for the calculation of civil penalties, which are as follows: (i) Per day basis; (ii) Discretion of the adjudicating body subject to a fixed upper limit; (iii) Discretion of adjudicating body subject to an upper limit linked to a variable parameter (such as a percentage of the total worldwide turnover of the preceding financial year of the defaulting data controller). For a fuller discussion, see page 191 above. Questions 1. What are your views on the above? 2. What are the different types of data protection violations for which a civil penalty may be prescribed? 3. Should the standard adopted by an adjudicating authority while determining liability of a data controller for a data protection breach be strict liability? Should strict liability of a data controller instead be stipulated only where data protection breach occurs while processing sensitive personal data? 4. In view of the above models, how should civil penalties be determined or calculated for a data protection framework? 231
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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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The Treasury Board of Canada Secret
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Under the EU GDPR, only certain dat
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5. What range of additional obligat
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D. DATA PROTECTION AUTHORITY 2.18 I
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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
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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 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: Questions 1. What are your views on
Page 243: 3. What are the mitigating circumst
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