white_paper_on_data_protection_in_india_171127_final_v2

More documents

Recommendations

Info

CHAPTER 7: EXEMPTIONS FOR HOUSEHOLD PURPOSES, JOURNALISTIC AND 7.1 Introduction LITERARY PURPOSES AND RESEARCH There are some activities which cannot be brought under the purview of a data protection law. In other words, a data controller can be exempted from certain obligations of a data protection law based on the nature and purpose of the processing activity. For instance, if a law enforcement officer wants to collect or use personal information for the purpose of an investigation, seeking consent of the data subjects or allowing them to access or rectify their data would delay the process and may even defeat its purpose. In general, the exemptions could either limit the rights of the individual/data subject, or limit the extent of obligations imposed on the entities/data controllers. Such exemptions in some circumstances will act as reasonable limitations on the right to privacy. The broad parameters for such exemptions in India have been indicated by the Supreme Court in Puttaswamy: 271 “The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state. The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits.” Jurisdictions such as the UK, EU, South Africa, Italy, Singapore etc. exempt certain data controllers from certain obligations under their data protection laws. The common exemptions found in these laws relate to the following – (1) processing of data for personal or household purpose; (2) processing of data for journalistic, artistic or literary purpose; (3) processing of data for research, historical or statistical purpose; (4) processing of data for investigation, apprehension or prosecution of offenders; (5) processing of data for national security purpose. Further, these laws grant varying exemptions to certain types of processing activities. Some activities enjoy wide exemptions; some activities are partially exempt, i.e. they do not have to comply with certain key data protection obligations. They may, however, be mandated to follow some measures to ensure that data is handled safely. Broadly, any category of exemptions carved out under a data protection law will have to skillfully balance the need for exempting a specific data processing activity with the curtailment of rights of an individual. 271 Justice K.S. Puttaswamy (Retd.)& Anr. v. Union of India & Ors., (2017) 10 SCALE 1., Section T, Conclusions, paragraph 5. 52
7.2 Specific Exemptions and International Practices (i) Personal or household purpose In instances where the data controller is an individual who processes data for herself, or for household activities, such activity would be outside the scope of regulation. For instance, a personal diary maintained by an individual which may have references to friends and family, or an address book on a computer containing personal data of friends and acquaintances. However, if personal data collected for domestic processing use is published on the Internet and is available to a large audience, it may fall outside the remit of this exemption. 272 Similarly, some instances of domestic processing such as installation of CCTV cameras in residences, use of drones and wearable technology, use of blogs and social networks, recording of personal conversations etc. will have to be examined closely for the purposes of this exemption. Collection and usage of personal data for personal uses or household purposes is outside the scope of data protection laws in several jurisdictions such as UK 273 EU, 274 and South Africa. 275 It will be difficult to identify processing for personal or household purposes as individuals have more ‗publishing power‘ which was earlier available to commercial organisations. 276 The EU has formulated certain criteria to determine whether the processing falls under personal or household purposes. 277 These may be examined further for the purpose of articulating the exemption in law. (ii) Journalistic/Artistic/Literary purposes This exemption seeks to strike a balance between an individual‘s right to privacy and the right to free speech and expression. For instance, news<strong>paper</strong>s routinely publish personal data of public figures or other individuals while reporting. However, the terms ‗journalistic purposes‘ and ‗journalist‘ are not defined in law currently. These terms need to be defined to ensure clarity in the scope of application. In some instances, non-media organisations which publish 272 Bodil Lindqvist v. Åklagarkammaren i Jönköping, Case C-101/01 (2003), European Court of Justice– a representative of the local church used her personal computer to set up websites which was linked to a Swedish church website. It ended up displaying the names, addresses, hobbies, information about jobs of the defendant and her colleagues. The colleagues‘ consent had not been sought. Held to be outside the scope of the domestic processing exemption. 273 Section 36, UK DPA. 274 Article 2, EU GDPR. 275 Section 6, POPI Act. 276 Annex 2 – ‗Proposals for Amendments regarding exemption for personal or household activities (EU)‘, European Commission, available at: http://ec.europa.eu/justice/data-protection/article-29/documentation/otherdocument/files/2013/20130227_statement_dp_annex2_en.pdf, (last accessed 31 October 2017). 277 Annex 2 – ‗Proposals for Amendments regarding exemption for personal or household activities (EU)‘, European Commission, available at: http://ec.europa.eu/justice/data-protection/article-29/documentation/otherdocument/files/2013/20130227_statement_dp_annex2_en.pdf, (last accessed 31 October 2017). 53
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 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: . Clear bifurcation of roles and as
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

Create successful ePaper yourself

Delete template?

Save as template?