white_paper_on_data_protection_in_india_171127_final_v2

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The Know Your Customer (KYC) norms limit the categories of information that banks and financial institutions can seek from their customers. 156 Once such information is collected, there is an obligation on banks to keep it confidential. 157 Further, multiple instruments such as the Master Circular on Credit Card, Debit Card and Rupee Denominated Co-branded Prepaid Card Operations of Banks and Credit Card issuing NBFCs, 158 the Master Circular on Customer Services, 2009 159 and the Code of Banks Commitment to Customers 160 etc. all provide for privacy and customer confidentiality obligations that have to be adhered to by various entities in the financial sector. d. Telecom Sector There are multiple laws that operate in the telecom sector such as the Indian Telegraph Act, 1885 (Telegraph Act), the Indian Wireless Telegraphy Act, 1933, the Telecom Regulatory Authority of India Act, 1997 (TRAI Act) and various regulations issued thereunder. However, data protection norms in the telecom sector are primarily dictated by the Unified License Agreement (ULA) issued to Telecom Service Providers (TSP) by the Department of Telecommunications (DoT). The format in which, and the types of information that are to be collected from the individual is prescribed by the DoT. 161 A TSP has an obligation to take necessary steps to safeguard the privacy and confidentiality of the information of individuals to whom it provides a service and from whom it has acquired such information by the virtue of the service provided. 162 Further, the TSP is obliged to maintain all commercial, call detail records, exchange detail records and IP detail records for at least one year for scrutiny by the DoT. 163 As far as security safeguards are concerned, there are multiple obligations prescribed for the TSP which includes inducting only those network elements into its telecom network which have been 156 RBI Master Direction on Know Your Customer (KYC) Direction, 2016 dated 25 February 2016, updated as on 8 July 2016, available at: https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=10292&Mode=0 (last accessed 13 November 2017). This Master Direction was amended by RBI Amendment to Master Direction dated 8 December 2016, available at https://rbi.org.in/scripts/NotificationUser.aspx?Mode=0&Id=10770 (last accessed 13 November 2017). 157 RBI Master Circular on Customer Service in UCBs dated 1 July 2015, available at: https://www.rbi.org.in/scripts/BS_ViewMasCirculardetails.aspx?id=9863, (last accessed November 5, 2017). 158 RBI Master Circular on Credit Card, Debit Card and Rupee Denominated Co-branded Prepaid Card Operations of Banks and Credit Card issuing NBFCs, available at Master Circular on Credit Card, Debit Card and Rupee Denominated Cobranded Prepaid Card operations of banks dated 1 July 2014, available at: https://rbi.org.in/Scripts/BS_ViewMasCirculardetails.aspx?id=8998 , (last accessed 5 November 2017). Some parts of this Circular were amended by RBI Notification on Customer Protection on Limiting Liability of Customers in Unauthorised Electronic Banking Transactions dated 6 July 2017, available at: https://www.rbi.org.in/scripts/NotificationUser.aspx?Id=11040&Mode=0 (last accessed 13 November 2017). 159 RBI Master Circular on Customer Service in Banks, 2015 dated 1 July 2015, available at: https://rbi.org.in/scripts/BS_ViewMasCirculardetails.aspx?id=9862 (last accessed 14 November 2017). 160 Code of Bank‘s Commitment to Customers, ‗Section 5- Privacy and Confidentiality‘, Banking Codes and Standards Board of India (June 2014), available at: https://www.dbs.com/in/iwov-resources/pdf/codeofbanksaug091.pdf (last accessed 3 November 2017). 161 Clause 39.17, Unified License Agreement. 162 Clause 37.2, Unified License Agreement. 163 Clause 39.20, Unified License Agreement. 20
tested as per the contemporary Indian or International Security Standards, 164 amongst others. 165 Finally, customer information can be disclosed only if the individual has consented to such disclosure and the disclosure is in accordance with the terms of consent. 166 In addition, the TSP has to make efforts to comply with the Telegraph Act which imposes an obligation on it to facilitate the Government to carry out ‗interception‘ of messages in case of emergencies - a privacy intrusion justified largely in the name of national security. There are some procedural safeguards built into this process of interception. 167 Further, the Telecom Regulatory Authority of India (TRAI) has framed the Telecom Commercial Communication Preference Regulations, 2010 (TRAI Regulations) to deal with unsolicited commercial communications. 168 The TRAI Regulations envisage the setting up of Customer Preference Registration Facility 169 by telecom service providers through which customers could choose to not receive commercial communications. However, these regulations are limited to messages and other communication through phones, and would would not cover an email application or advertisements appearing on browsers. e. Health Sector Despite the inherently sensitive nature of health information, the legal framework on data protection in the health sector appears to be inadequate. The Clinical Establishments (Central Government) Rules, 2012 (Clinical Establishments Rules) requires clinical establishments to maintain and provide Electronic Medical Records/Electronic Health Records, thus mandating the storage of health information in an electronic format. 170 The SPDI Rules recognise health information as constituting ‗sensitive personal data‘ and thus regulates its collection, use and disclosure. However, as already mentioned the SPDI Rules apply only to the private sector thus leaving the whole of the public health sector outside its ambit. The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (IMC Code) issued under the Indian Medical Council Act, 1956 mandate physician-patient confidentiality unless the disclosure of the patient‘s information is required by law, or if there is a serious and identified risk to an individual/community, or the disease is a notifiable one. 171 Interestingly, at the same time the IMC Code requires that the patient, her relatives and responsible friends have knowledge of the patient's condition so as to serve her best interests 172 thus allowing for disclosure without the consent of the patient. Further, physicians are encouraged to computerise medical records, maintain them for a period of three years and provide access to them to the patient upon her request. 173 However, the limited privacy 164 Clause 39.7, Unified License Agreement. 165 Clause 39, Unified License Agreement. 166 Clause 37.2, Unified License Agreement. 167 Rule 419-A, Telegraph Act. 168 Regulation 2(i), TRAI Regulations. 169 Regulation 3, TRAI Regulations. 170 Rule 9(iv), Clinical Establishments Rules. 171 Section 2.2., IMC Code. 172 Section 2.3. IMC Code. 173 Section 1.3.2, IMC Code. 21
Page 1 and 2: WHITE PAPER OF THE COMMITTEE OF EXP
Page 3 and 4: inclination to peruse the contents
Page 5 and 6: TABLE OF CONTENTS Foreword.........
Page 7 and 8: (x) Impact on development of teleco
Page 9 and 10: 9.1 Introduction ..................
Page 11 and 12: 1. A Digital India in a Digital Wor
Page 13 and 14: information can then be used to cre
Page 15 and 16: Privacy is a complex concept that h
Page 17 and 18: The FIPPS were soon followed by the
Page 19 and 20: In light of these developments, the
Page 21 and 22: OECD Guidelines, 68 and sought to a
Page 23 and 24: Constitution - the right against un
Page 25 and 26: visits at night and regular surveil
Page 27 and 28: or necessary for legal compliance.
Page 29: Aadhaar based authentication which
Page 33 and 34: man and woman must be kept in mind.
Page 35 and 36: of the law. Second, the ease of cro
Page 37 and 38: ambit of the term organisation. 191
Page 39 and 40: 1. What are your views on what the
Page 41 and 42: 2.2 Horizontality of Application (P
Page 43 and 44: a. The law could regulate personal
Page 45 and 46: This distinction between data and i
Page 47 and 48: (iv) Pseudonymisation and Anonymisa
Page 49 and 50: that the information is not in the
Page 51 and 52: CHAPTER 4: SENSITIVE PERSONAL DATA
Page 53 and 54: protection. Subject to an evaluatio
Page 55 and 56: South Africa The POPI Act defines p
Page 57 and 58: a. All personal data processed must
Page 59 and 60: an employee of the controller who g
Page 61 and 62: . Clear bifurcation of roles and as
Page 63 and 64: 7.2 Specific Exemptions and Interna
Page 65 and 66: In India, collection of statistical
Page 67 and 68: of imposition of similar nature.‘
Page 69 and 70: mechanism to provide prior approval
Page 71 and 72: 1. What are your views on including
Page 73 and 74: To facilitate the cross-border tran
Page 75 and 76: (ii) Binding Corporate Rules BCR ar
Page 77 and 78: individual to take action to enforc
Page 79 and 80: CHAPTER 9 : DATA LOCALISATION 9.1 I
Page 81 and 82:
(iii) IT-BPO/BPM Industrial Growth
Page 83 and 84:
amounts of computer hardware, they
Page 85 and 86:
In Indonesia, the regulation regard
Page 87 and 88:
Distribution of Insurance Products)
Page 89 and 90:
Another advantage of relying on con
Page 91 and 92:
individuals may find it impossible
Page 93 and 94:
that the collection is reasonably n
Page 95 and 96:
CHAPTER 2: CHILD’S CONSENT 2.1 In
Page 97 and 98:
the cloud service provider as to st
Page 99 and 100:
The PIPEDA does not specifically de
Page 101 and 102:
7. How can the requirement for pare
Page 103 and 104:
mechanism still continues to play a
Page 105 and 106:
3.3 International Practices Despite
Page 107 and 108:
(CALOPPA) 466 and the GLB Act requi
Page 109 and 110:
CHAPTER 4: OTHER GROUNDS OF PROCESS
Page 111 and 112:
This ground covers two types of sce
Page 113 and 114:
that there may be certain situation
Page 115 and 116:
CHAPTER 5: PURPOSE SPECIFICATION AN
Page 117 and 118:
collected for more than one purpose
Page 119 and 120:
enable data controllers to understa
Page 121 and 122:
CHAPTER 6: PROCESSING OF SENSITIVE
Page 123 and 124:
may instrumentally be caused if the
Page 125 and 126:
PIPEDA does not specifically deal w
Page 127 and 128:
CHAPTER 7: STORAGE LIMITATION AND D
Page 129 and 130:
solely for archiving purposes in th
Page 131 and 132:
2. Data Quality: The principle of d
Page 133 and 134:
data protection laws across jurisdi
Page 135 and 136:
The requirement to be provided the
Page 137 and 138:
Information Act, 1982 or other appr
Page 139 and 140:
CHAPTER 9: INDIVIDUAL PARTICIPATION
Page 141 and 142:
. the processing is unlawful and th
Page 143 and 144:
such a right may be unsuitable in t
Page 145 and 146:
from being taken solely on the basi
Page 147 and 148:
CHAPTER 10: INDIVIDUAL PARTICIPATIO
Page 149 and 150:
emove data for ―the processing of
Page 151 and 152:
South Africa Section 24 of the POPI
Page 153 and 154:
PART IV REGULATION AND ENFORCEMENT
Page 155 and 156:
they form core, substantive element
Page 157 and 158:
CHAPTER 2: ACCOUNTABILITY AND ENFOR
Page 159 and 160:
have been taken or that the data su
Page 161 and 162:
The EU GDPR focuses on a ―risk ba
Page 163 and 164:
person who processes personal infor
Page 165 and 166:
with developing certain baseline ac
Page 167 and 168:
ENFORCEMENT TOOLS 2.6 Introduction
Page 169 and 170:
Australia The Privacy Act makes ext
Page 171 and 172:
B. PERSONAL DATA BREACH NOTIFICATIO
Page 173 and 174:
eputation, and loss of confidential
Page 175 and 176:
There is a need to put in place a n
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
Page 183 and 184:
5. What range of additional obligat
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
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 and 242:
12. In cases where compensation cla
Page 243:
3. What are the mitigating circumst
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