white_paper_on_data_protection_in_india_171127_final_v2

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information for mass coverage may be covered as also bloggers and others who generate content online. 278 Further, art and literature are interpreted broadly. 279 Various data protection laws grant different levels of exemptions for processing of personal data for journalistic purposes. For instance, the EU GDPR provides an option to Member States to provide for derogations from certain obligations if they are ‗necessary to reconcile the right to the protection of personal data with the freedom of expression and information.‘ 280 According to the UK DPA, the exemptions granted in this category are from all data protection principles (except the one relating to organisational and technical safeguards), subject access request and right to prevent processing, rights in relation to automated decision making, and right to seek erasure, rectification and blocking. 281 Other jurisdictions which provide this exemption are South Africa, 282 Philippines, 283 Singapore, 284 and South Korea. 285 As this exemption seeks to fulfill the right to free speech and expression several jurisdictions provide a wide exemption in this category. However, in the absence of a clear articulation of what these activities might be, or how terms such as ‗journalist‘, ‗journalistic‘, ‗artistic‘, ‗literary‘ are commonly understood, the provision may be misused. The way forward may be to identify only those activities in this category where the necessity or purpose of the activity and the corresponding right to free speech and expression outweighs the right to privacy of the data subject. (iii) Research/historical and statistical purposes This exemption seeks to balance the need for innovation with the right to privacy of an individual. A law on informational privacy should not be an impediment to research activities. This exemption can be availed if the data processing activity is being conducted for research/historical or statistical purposes. For instance, collection of personal data for Census. 278 Information Commissioner‘s Office (UK) Guidance, ‗Data Protection and Journalism: A Guide for the Media‘ (4 September 2014), available at: https://ico.org.uk/media/for-organisations/documents/1552/dataprotection-and-journalism-media-guidance.pdf, (last accessed 2 November 2017). 279 Information Commissioner‘s Office (UK) Guidance, ‗Data Protection and Journalism: A Guide for the Media‘ (4 September 2014), available at: https://ico.org.uk/media/for-organisations/documents/1552/dataprotection-and-journalism-media-guidance.pdf, (last accessed 2 November 2017). 280 Article 85, EU GDPR; Article 85(2) states ‗For processing carried out for journalistic purposes or the purpose of academic artistic or literary expression, Member States shall provide for exemptions or derogations from Chapter II (principles), Chapter III (rights of the data subject), Chapter IV (controller and processor), Chapter V (transfer of personal data to third countries or international organisations), Chapter VI (independent supervisory authorities), Chapter VII (cooperation and consistency) and Chapter IX (specific data processing situations)‘. 281 Section 32, UK DPA. 282 Section 7, POPI Act. 283 Philippines provides the strongest exemption in this category. See Graham Greenleaf, ‗Asian Data Privacy Laws: Trade & Human Rights Perspectives‘, 481 (Oxford University Press, 2016). 284 Singapore exempts ‗news organisations‘ from seeking consent for collection of personal data strictly for ‗news activities‘. They are not exempted from other principles. See Graham Greenleaf, ‗Asian Data Privacy Laws: Trade & Human Rights Perspectives‘, 481 (Oxford University Press, 2016). 285 South Korea provides a general exemption for personal data that is collected for ‗use for reporting by the press,‘ see Graham Greenleaf, ‗Asian Data Privacy Laws: Trade & Human Rights Perspectives‘, 481 (Oxford University Press, 2016). 54
In India, collection of statistical information by the Government is governed by the Collection of Statistics Act, 2008 (Collection of Statistics Act). This legislation deals with the collection of statistical information relating to economic, demographic, social, scientific and environmental aspects by the Government. The appropriate Government can direct that a relevant statistics officer may supervise the collection of the requested statistical information 286 . The statistics officer requests the collection of necessary information by serving a written notice to an informant. Upon the receipt of a written request, the informant is bound to furnish information to the best of his/her ability. The statistics officer, or his authorized representative has the power to access relevant records or documents in the possession of the informant. 287 In the case of South Africa, under the POPI Act, the Information Regulator may exempt processors from certain obligations in the following two conditions - if public interest in processing outweighs, to a substantial degree, any interference with privacy; or if processing involves a clear benefit to the data subject or a third party that outweighs, to a substantial degree, any interference with privacy. Public interest has been defined to include ‗historical, statistical or research activity.‘ Jurisdictions such as Italy, 288 South Africa, 289 UK, 290 provide exemptions for personal data processed in for research/historical and statistical purposes. This exemption promotes academic freedom of research, and processing of data in wider public interest. However, the term ‗research‘ should be clearly defined to exclude nonacademic research such as market research or processing of data for the purpose of advertising or other commercial purposes. For instance, names, addresses collected by a nongovernmental organization or NGO for academic research that may also be used by the same NGO for targeted commercial activity. (iv) Other categories of exemptions that have been incorporated by some jurisdictions a. Regulatory activity (UK 291 , Malaysia 292 ); b. Discretionary exemptions by a Data Protection Authority or minister (Singapore 293 , Malaysia 294 ); c. Exemptions for small businesses (for e.g. Australia exempts small business operators which have a turnover of less than AUD 3 million, however, there are no exemptions for processing of health data) 295 ; Further, some considerations such as (1) the size, 286 Sections 4 and 5, Collection of Statistics Act. 287 Section 8, Collection of Statistics Act. 288 Section 100, 101, Italian Personal Data Protection Code, 2003. 289 Section 27(1)(d), POPI Act. 290 Section 33, UK DPA does not provide a blanket exemption for this category. Data protection principles such as the requirement to keep data secure etc. would still apply. 291 Section 31, UK DPA. 292 Section 45(2)(e), Personal Data Protection Act, 2010. 293 Section 62, Singapore Act. 294 Section 46, Personal Data Protection Act, 2010. 295 Sections 6C, 6D and 6E, Privacy Act. 55
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WHITE PAPER OF THE COMMITTEE OF EXP
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inclination to peruse the contents
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TABLE OF CONTENTS Foreword.........
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(x) Impact on development of teleco
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9.1 Introduction ..................
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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 and 62: . Clear bifurcation of roles and as
Page 63: 7.2 Specific Exemptions and Interna
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
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CHAPTER 5: PURPOSE SPECIFICATION AN
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collected for more than one purpose
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enable data controllers to understa
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CHAPTER 6: PROCESSING OF SENSITIVE
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may instrumentally be caused if the
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PIPEDA does not specifically deal w
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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
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data protection laws across jurisdi
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The requirement to be provided the
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Information Act, 1982 or other appr
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CHAPTER 9: INDIVIDUAL PARTICIPATION
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. the processing is unlawful and th
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such a right may be unsuitable in t
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from being taken solely on the basi
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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
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they form core, substantive element
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CHAPTER 2: ACCOUNTABILITY AND ENFOR
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have been taken or that the data su
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The EU GDPR focuses on a ―risk ba
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person who processes personal infor
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with developing certain baseline ac
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ENFORCEMENT TOOLS 2.6 Introduction
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Australia The Privacy Act makes ext
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B. PERSONAL DATA BREACH NOTIFICATIO
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eputation, and loss of confidential
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There is a need to put in place a n
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C. CATEGORISATION OF DATA CONTROLLE
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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
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. 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
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SCOPE AND EXEMPTIONS 1. Territorial
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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
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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
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Questions 1. What are your views on
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12. In cases where compensation cla
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3. What are the mitigating circumst
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