white_paper_on_data_protection_in_india_171127_final_v2

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matter in which there is a serious privacy interest. The application of these factors vary from country to country. It must thus be seen whether information in these categories are sensitive in the Indian context. A prima facie indication of the position on these issues is reflected in the SPDI Rules. 245 The core categories identified by the Government in 2011 for protection as sensitive personal data were (i) passwords; (ii) financial information such as Bank account or credit card or debit card or other payment instrument details; (iii) physical, physiological and mental health condition; (iv) sexual orientation; (v) medical records and history; and (vi) biometric information. Racial or ethnic origin, philosophical beliefs, membership of political associations and membership of trade unions are all missing from this list. A fresh assessment would have to be carried out to ascertain whether such information should be included in the category of sensitive personal data. The other category of data that requires specific consideration is financial data. The SPDI Rules prescribe financial data to be sensitive data. This is similar to the American practice of treating financial information such as credit card information as sensitive information. 246 Financial data, which finds mention in the SPDI Rules is not a category which finds mention as sensitive data in the EU, South Africa or Australia. In Australia, in the consultation processes leading to the amendment of the Privacy Act, it was suggested that financial information should be included in the category of sensitive personal data. The suggestion was rejected noting that while financial data shares certain characteristics with other sensitive data in that it has to be handled with care, 247 it does relate to any intimate personal or physical attribute like other sensitive data. Other categories of information specific to India such as caste may also have to be considered for inclusion. Information about the caste of an individual falls within the zone where there is a higher expectation of privacy and it could be a reason for discrimination as well. These point to the fact that information about caste should be included in the list of sensitive data. It is important to distinguish information about caste from information from which caste of a person may be surmised such as a surname. The name of a person, even if it reveals his or her caste or religion cannot be the basis for treating the name itself as sensitive personal data. The question whether such information is sensitive data would be context dependent. For instance, a list of names where there is no reference to any other fact, does not mean that the entire list is sensitive personal information because the castes of some individuals may be surmised from their names. However, if a list is prepared indicating the caste of every person in a separate column, that could be sensitive personal data requiring a different standard of 245 Rule 3, SPDI Rules. 246 The FTC which draws its primary authority from the FTC Act also administers and acts under a number of other statutes such as the GLB Act, COPPA etc. FTC, ‗Protecting Personal Information: A Guide for Business‘ (23 January 2015), available at: www.ftc.gov/tips-advice/business-center/guidance/protecting-personalinformation-guide-business, (last accessed 17 November 2017). 247 Australian Law Reform Commission, ‗The Privacy Act: Some Important Definitions‘, available at: https://www.alrc.gov.au/publications/6.%20The%20Privacy%20Act%3A%20Some%20Important%20Definitio ns/sensitive-information, (last accessed 3 November 2017). 42
protection. Subject to an evaluation of these issues, caste may be considered as a category for inclusion in the list of sensitive personal data. All jurisdictions considered above list specific kinds of data as sensitive personal data and prescribe heightened protections for the same. A jurisdiction which adopts a different approach is Canada where there is no precise definition for sensitive personal data. Any personal data could be sensitive under the PIPEDA, if the context so warrants. 248 This approach has the advantage of being flexible and not limiting the safeguards of sensitive personal data to a predetermined list. At the same time, it lacks the precision of the model identifying specific kinds of data as sensitive personal. This could lead to difficulties in the Indian context. 4.3 Provisional Views 1. Health information, genetic information, religious beliefs and affiliations, sexual orientation, racial and ethnic origin may be treated as sensitive personal data. Caste information may also be treated as sensitive personal data. 2. Though qualitatively different from the information in the previous category, financial information may also be included as sensitive personal data. Financial information has been categorised as sensitive information in India since the formulation of SPDI Rules. 3. In other categories such as philosophical or political beliefs, an assessment may be made whether these are matters in which a person has an expectation of a high degree of privacy. 4.4 Questions 1. What are your views on sensitive personal data? 2. Should the law define a set of information as sensitive data? If yes, what category of data should be included in it? Eg. Financial Information / Health Information / Caste / Religion / Sexual Orientation. Should any other category be included? [For instance, the EU GDPR incorporates racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and data concerning health or sex life.] 3. Are there any other views on sensitive personal data which have not been considered above? 248 See Schedule I, paragraph 4.3.4, PIPEDA. 43
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 and 48: (iv) Pseudonymisation and Anonymisa
Page 49 and 50: that the information is not in the
Page 51: CHAPTER 4: SENSITIVE PERSONAL DATA
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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