white_paper_on_data_protection_in_india_171127_final_v2

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5. Should civil penalties be linked to a certain percentage of the total worldwide turnover of the defaulting data controller (for the preceding financial year) or should it be a fixed upper limit prescribed under law? 6. Should the turnover (referred to in the above question) be the worldwide turnover (of preceding financial year) or the turnover linked to the processing activity pursuant to a data protection breach? 7. Where civil penalties are proposed to be linked to a percentage of the worldwide turnover (of the preceding financial year) of the defaulting data controller, what should be the value of such percentage? Should it be prescribed under the law or should it be determined by the adjudicating authority? 8. Should limit of civil penalty imposed vary for different categories of data controllers (where such data controllers are categorised based on the volume of personal data processed, high turnover due to data processing operations, or use of new technology for processing)? 9. Depending on the civil penalty model proposed to be adopted, what type of factors should be considered by an adjudicating body while determining the quantum of civil penalty to be imposed? 10. Should there be a provision for blocking market access of a defaulting data controller in case of non-payment of penalty? What would be the implications of such a measure? 11. Are there any alternative views on penalties other than the ones mentioned above? B. Compensation Awarding of compensation constitutes an important remedy where an individual has incurred a loss or damage as a result of a data controller‘s failure to comply with the data protection principles as set out under law. For a fuller discussion, see page 197 above. Questions 1. What is the nature, type and extent of loss or damage suffered by an individual in relation to which she may seek compensation under a data protection legal regime? 2. What are the factors and guidelines that may be considered while calculating compensation for breach of data protection obligations? 232
3. What are the mitigating circumstances (in relation to the defaulting party) that may be considered while calculating compensation for breach of data protection obligations? 4. Should there be an obligation cast upon a data controller to grant compensation on its own to an individual upon detection of significant harm caused to such individual due to data protection breach by such data controller (without the individual taking recourse to the adjudicatory mechanism)? What should constitute significant harm? 5. Are there any alternative views other than the ones mentioned above? C. Offences The law may treat certain actions of a data controller as an offence and impose a criminal liability. This may include instances where any person recklessly obtains or discloses, sells, offers to sell or transfers personal data to a third party without adhering to relevant principles of the data protection law, particularly without the consent of the data subject. It may be considered whether other acts should create criminal liability. For a fuller discussion, see page 201 above. Questions 1. What are the types of acts relating to the processing of personal data which may be considered as offences for which criminal liability may be triggered? 2. What are the penalties for unauthorised sharing of personal data to be imposed on the data controller as well as on the recipient of the data? 3. What is the quantum of fines and imprisonment that may be imposed in all cases? 4. Should a higher quantum of fine and imprisonment be prescribed where the data involved is sensitive personal data? 5. Who will investigate such offences? 6. Should a data protection law itself set out all relevant offences in relation to which criminal liability may be imposed on a data controller or should the extant IT Act be amended to reflect this? 7. Are there any alternative views other than the ones mentioned above? **** 233
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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
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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 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 and 240: Questions 1. What are your views on
Page 241: 12. In cases where compensation cla
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