white_paper_on_data_protection_in_india_171127_final_v2

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safeguards and absence of an enforcement mechanism renders the IMC Code largely inadequate to address the concerns surrounding health information. These existing laws and regulations will have to be analysed and changes, if any, concomitant with the introduction of a new data protection framework, suggested. (iii) The AP Shah Committee Report In 2012, a Group of Experts on Privacy was constituted by the erstwhile Planning Commisison under the Chairmanship of Justice AP Shah (Justice AP Shah Committee). The report of the Justice AP Shah Committee recommended a detailed framework that serves as the conceptual foundation for a privacy law in India, considering multiple dimensions of privacy. After a detailed deliberative and consultative exercise, it proposed a set of nine National Privacy Principles to be followed, broadly derived from the OECD Guidelines. 174 It also proposed a co-regulatory form of enforcement with privacy commissioners set up by statute along with self-regulatory organisations. 175 The principles recommended by the Justice AP Shah Committee as well as the model of enforcement deserve close scrutiny insofar as they relate to question of data protection. 5. Possible Approaches As discussed above, the analysis of the data protection models followed by the EU and the US sets out two basic approaches: the EU model is a rights based one, where protection of personal data is equated with protecting the fundamental right to privacy. The EU model has been criticised however, for being excessively stringent, and imposing many obligations on the organisations processing data. At the other end of the spectrum is the US approach, which focuses on protecting the individual from excessive State regulation. The US model recognises the value of data vis-a-vis encouraging innovation, and therefore allows collection of personal information as long as the individual is informed of such collection and use. However it has been viewed as inadequate in key respects. Several hybrid models also exist. These approaches must be kept in mind alongside the recognition of the right to privacy by the Supreme Court of India and legislative and other developments which have already taken place in India. At the same time, one must be mindful of the need to encourage innovation, recognised by the Supreme Court of India, in its decision holding privacy to be fundamental, yet limited by reasonable restrictions. In addition, India‘s potential to lead the world into a digital economy making use of its existing strengths in information technology, demographic dividend, and its need for empowerment based on data-driven access to services and benefits for the common 174 The nine principles set out by the Justice AP Shah Committee are as follows: Principle 1: Notice; Principle 2: Choice and Consent; Principle 3: Collection Limitation; Principle 4: Purpose Limitation; Principle 5: Access and Correction; Principle 6: Disclosure of Information; Principle 7: Security; Principle 8: Openness; Principle 9: Accountability Report of the Justice AP Shah Committee, 21-27 (October 16, 2012). 175 Report of the Justice AP Shah Committee, 5 (October 16, 2012). 22
man and woman must be kept in mind. Factoring in these diverse objectives, a nuanced approach towards data protection will have to be followed in India. It is to understand what these nuances are that this White Paper has been drafted for public consultation and comments. This White Paper has been divided into three substantive parts: Part II- Scope and Exemptions; Part III- Grounds of Processing, Obligation on Entities and Individual Rights; and Part IV- Regulation and Enforcement. Each Part contains several Chapters comprising brief notes on every aspect that we envisage will form a part of a data protection law. Each note, in turn, sets out the key issues that need to be considered, international practices relevant in this regard, provisional views of the Committee based on its research and deliberations and questions for public consultation. For easy reference, a summary is provided at the end of the <strong>paper</strong> in Part V listing all questions for public consultation. The purpose of this exercise is to ascertain the views of key stakeholders and the general public on each of these aspects. It must be emphasised that this format for consultation has been followed based on the need to ensure targeted consultation with stakeholders. The provisional views of the Committee are meant to provoke discussion and debate and do not represent its final views in any manner. Further, the questions suggested for discussion are carefully formulated and would serve their purpose if careful and precise and answers are provided. 23
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 and 30: Aadhaar based authentication which
Page 31: tested as per the contemporary Indi
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
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3.3 International Practices Despite
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(CALOPPA) 466 and the GLB Act requi
Page 109 and 110:
CHAPTER 4: OTHER GROUNDS OF PROCESS
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This ground covers two types of sce
Page 113 and 114:
that there may be certain situation
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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
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solely for archiving purposes in th
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2. Data Quality: The principle of d
Page 133 and 134:
data protection laws across jurisdi
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The requirement to be provided the
Page 137 and 138:
Information Act, 1982 or other appr
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CHAPTER 9: INDIVIDUAL PARTICIPATION
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. 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
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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
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
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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
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standards be set by different entit
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maintain reasonable security practi
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notices‘ 827 and ‗information n
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5. Given that the Appellate Tribuna
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CHAPTER 4: REMEDIES A. PENALTIES In
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sector, size, financial and other r
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to an overly adverse impact on smal
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B. COMPENSATION Awarding of compens
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United Kingdom As per the guidance
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C. OFFENCES There are certain types
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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
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2. Should the definition of process
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1. What are your views on including
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9. Data Localisation Data localisat
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2. Child’s Consent It is estimate
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Alternatives: a. Assigning a ‗dat
Page 229 and 230:
If ‗sensitive personal data‘ is
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2. Should there be a restriction on
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3. Does a right to be forgotten add
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1. What are your views on the use o
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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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