white_paper_on_data_protection_in_india_171127_final_v2

More documents

Recommendations

Info

CHAPTER 2: OTHER ISSUES OF SCOPE 2.1 Natural/Juristic Persons Several jurisdictions have deliberated on the applicability of a data protection law to individuals as well as corporate entities/juristic persons. For instance, the EU GDPR applies to ‗natural persons‘ as the definition of ‗personal data‘ is specifically linked to individuals and not legal/juristic persons. The EU GDPR relies on the understanding of a natural person as addressed in the Universal Declaration of Human Rights (UN Declaration). 199 The rights based framework as understood in the EU recognises that human beings are the subject of legal relations. 200 The POPI Act on the other hand, applies to natural as well as juristic persons. Data related to juristic persons such as confidential business information and corporate strategies should be protected against various types of processing activities on such data. 201 Further, such data should be subject to data security safeguards in order to ensure that the legitimate interests of juristic persons is protected. 202 In India, the right to privacy as laid down in Puttaswamy flows from the right to life and personal liberty guaranteed under Article 21 of the Constitution of India. Components of this right can also be located in the autonomy and dignity of an individual guaranteed by the Constitution of India. In this context, a legislation that flows from a fundamental right such as the right to privacy, must include natural persons in its fold. While a juristic entity can claim and exercise certain fundamental rights, the ideas of autonomy and dignity may not be entirely applicable to it. Most key principles of data protection such as lawful processing and individual participation are intrinsically derived from the object of protecting the autonomy and dignity of the individual. It would be difficult to extend these principles to data relating to a juristic entity. A distinction however has to be drawn between corporate data and some categories of data held by juristic persons which can reasonably identify an individual. Such data ought to be protected by a data protection law. However, data relating to a corporate entity which may otherwise require protection from theft, or unauthorized disclosure, cannot be protected by the data protection law. For instance, a company‘s Permament Account Number or its financial information, being data identifying a juristic person and not an individual, may be excluded from the purview of the data protection legislation. 199 Article 6 of the UN Declaration states: ‗Everyone has the right to recognition everywhere as a person before the law.‘ 200 Article 29 Data Protection Working Party, ‗Opinion 4/2007 on the Concept of Personal Data‘, European Commission (20 June 2007), 22, available at: http://ec.europa.eu/justice/data-protection/article- 29/documentation/opinion-recommendation/files/2007/wp136_en.pdf, (last accessed 17 November 2017). 201 South African Law Reform Commission, ‗Privacy and Data Protection‘ Discussion Paper 109, Project 124 (October 2005), available at: http://www.justice.gov.za/salrc/d<strong>paper</strong>s/dp109.pdf; (last accessed 2 November 2017). 202 South African Law Reform Commission, ‗Privacy and Data Protection‘ Discussion Paper 109, Project 124 (October 2005), available at: http://www.justice.gov.za/salrc/d<strong>paper</strong>s/dp109.pdf; (last accessed 2 November 2017). 30
2.2 Horizontality of Application (Public versus Private Sector) There is a large amount of personal data being processed by public and private entities alike. Further, an important dimension of the right to privacy is civil rights and surveillance, which involves the State. 203 Data protection laws in jurisdictions such as the EU apply to the Government, as well as private entities as far as their processing activities are concerned. The (Australian) Privacy Act contains thirteen Australian Privacy Principles (APPs) which apply to some private entities and most Australian and Norfolk Island government entities. In Canada, however, two separate laws apply to public and private entities. The Privacy Act 1983 (Canada Privacy Act) applies to the federal government institutions, and the PIPEDA applies to businesses. There is a need to ensure that an individual‘s informational privacy is protected through a comprehensive data protection law which applies across the board. Additionally, the law may be devised to provide grounds for processing, and certain reasonable exemptions for data collected, used, disclosed, retained or stored by public entities. However, it is doubtful whether public entities can be completely excluded from the purview of the data protection law. The Supreme Court has recognised that legitimate state interest must be protected through exemptions that may be carved out in a data protection law. 204 However, limited exemptions may be considered for well-defined categories of departments in Government or the public sector and similarly for entities in the private sector. In the former category, law enforcement agencies and intelligence agencies may have to be exempted from some of the rigours of the law. This is dealt with later in this White Paper. Second, the law may exempt entities such as charitable institutions or small business enterprises from all or some of the obligations under the law. 205 These exemptions will also have to be carefully designed. 2.3 Retrospective Application A data protection law will apply ordinarily to data collected, used, stored, disclosed, retained etc. after the legislation enters into force. However, it may also apply to data that has been collected, used, stored, disclosed, retained etc. before the law was enacted. The data protection law will impose significant obligations for all entities involved in the collection, use, disclosure, retention and storage of personal data. To ensure effective implementation, the law should contain a transitory provision to ensure that all obligations are reasonable, and are complied with in the given time-frame. The provision for retrospective application may also be considered for certain reasonable obligations such as ensuring the integrity and confidentiality of information that is already in control of the processor. However, certain 203 Joseph A. Cannataci, ‗Report of the Special Rapporteur on the right to privacy‘, Human Rights Council, A/HRC/31/64 (2016). 204 Justice K.S. Puttaswamy (Retd.) v. Union of India & Ors. (2017) 10 SCALE 1. 205 See for instance Section 6 D, Canada Privacy Act 31
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 and 32: tested as per the contemporary Indi
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: 1. What are your views on what the
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
show all

white_paper_on_data_protection_in_india_171127_final_v2

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?