white_paper_on_data_protection_in_india_171127_final_v2

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isks. For instance, if participation rights are given with respect to a data set which is supposedly anonymised, but may be capable of being re-identified, the data controller would be required to identify the individuals first from the data. 232 The advent of the Internet of Things also poses a challenge to the degree of anonymity that can be achieved. New devices capture data in forms which are unique. An example is that of a person‘s gait being uniquely identified by a wearable activity tracker. 233 Such data can perhaps never be completely de-identified. The current methods of using aggregated anonymised data might not be secure enough when applied to such data. In spite of these issues, several prominent jurisdictions continue to rely on definitions of personal data which are structured around the notion of information about/related to an identified or reasonably identifiable individual. Some nuance may be of relevance here. The EU GDPR also qualifies the above statement by noting that the identification may be direct or indirect thus broadening the scope of the definition. 234 Similarly, as pointed out earlier some legislations make it explicit whether information constitutes personal information is not dependent on its accuracy. A noteworthy feature of the POPI Act is that the definition has an illustrative component as well which lists some of the common forms of personal information. 235 These are some practices worth considering in constructing a definition of personal data under the law. (vi) A layered approach? A prominent jurisdiction not discussed above is the US where different kinds of definitions exist as a result of data protection being dealt with in sector-specific laws. The kind of information to be protected is broadly referred to by the umbrella term ―Personally Identifiable Information‖ (PII). However, definitions of PII vary widely across statutes. Shwartz and Solove draw up a useful typology where they refer to definitions based on standards on one hand and rule-based definitions on the other hand. 236 Definitions in the EU, Canada and Australia referred to above are examples of standard-based definitions which are largely technologically neutral and rely on the standard of identification. In the US, the Video Privacy Protection Act, 1988 (VPPA) is pointed out as an example of a similar approach. However, the VPPA protects only the category of information which identifies an individual and does not use the standard of identifiability. A different standard found in the GLB Act is that of non-public personal information. The standard used here is 232 OECD, OECD Digital Economy Papers No. 229, ‗Privacy Expert Group Report on the Review of the 1980 OECD Privacy Guidelines‘, 10, available at: http://www.oecd-ilibrary.org/science-and-technology/privacyexpert-group-report-on-the-review-of-the-1980-oecd-privacy-guidelines_5k3xz5zmj2mx-en., (last accessed 1 November 2017). 233 Scott R Peppet, ‗Regulating the Internet of Things: First Steps Toward Managing Discrimination, Privacy, Security and Consent‘, 93(85) Texas Law Review 156 (2014). 234 Article 4 (1) , EU GDPR. 235 Section 2, POPI Act. 236 Paul M. Shwartz and Daniel Solove, ‗The PII Problem: Privacy and a New Concept of Personally Identifiable Information‘, 86 NYU Law Quarterly Review 1814 (2011). 38
that the information is not in the ―public domain.‖ However, this approach may not be entirely satisfactory as in the absence of identifiability, the privacy interest of an individual in the information is not clear. 237 The third kind of definition which runs the risk of being outdated quickly is the approach which identifies specific types of data. California‘s Song - Beverly Credit Card Act of 1971 and the COPPA are examples of this approach, though the latter is an open ended definition which permits the regulator to add to the listed categories of personal information. 238 Solove and Schwartz contrast these definitions with the EU model and propose an alternative. The EU model, in their opinion, is too broad in that even data from which an individual may be identifiable would be personal information entitled to the full spectrum of protection. Imposing, say, requirements of notice and consent on use of such information would require that the data be converted from identifiable state to an identified state. This would be a disproportionate response to the risk involved. They suggest that the law should only impose obligations of data security, transparency and data quality on such identifiable information. 239 3.3. Provisional Views 1. It is data about/relating to an individual that may be the subject matter of protection under the law. Data in this context ought to include any kind of information including opinions or assessments irrespective of their accuracy. 2. Data from which an individual is identified or identifiable/reasonably identifiable may be considered to be personal data. The identifiability can be direct or indirect. 3. New technologies pose considerable challenges to this distinction based on identifiability. This standard may have to be backed up by codes of practice and guidance notes indicating the boundaries of personal information having regard to the state of technology. 3.4. Questions 1. What are your views on the contours of the definition of personal data or information? 2. For the purpose of a draft data protection law, should the term ‗personal data‘ or ‗personal information‘ be used? Alternatives: 237 Paul M. Shwartz and Daniel Solove, ‗The PII Problem: Privacy and a New Concept of Personally Identifiable Information‘, 86 NYU Law Quarterly Review 1814 (2011). 238 Paul M. Shwartz and Daniel Solove, ‗The PII Problem: Privacy and a New Concept of Personally Identifiable Information‘, 86 NYU Law Quarterly Review 1814, 1832 (2011). 239 Paul M. Shwartz and Daniel Solove, ‗The PII Problem: Privacy and a New Concept of Personally Identifiable Information‘, 86 NYU Law Quarterly Review 1814, 1881 (2011). 39
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 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: (iv) Pseudonymisation and Anonymisa
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
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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
Page 149 and 150:
emove data for ―the processing of
Page 151 and 152:
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
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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