white_paper_on_data_protection_in_india_171127_final_v2

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(vi) India as a Capital of Analytics Services Analytics capabilities and solutions have over the years scaled up from descriptive analytics capabilities being used for reporting and business intelligence, to predictive 372 modelling and later moving to prescriptive 373 ones. India has been growing as an analytics hub which provides analytics solutions across different sectors- energy, healthcare, banking, telecom, insurance, agriculture, aviation, retail/e-commerce, hospitality and even NGOs. (vii) Cloud Services Brokerage Cloud services brokerage (CSB) is an IT role and business model in which a company or other entity adds value to one or more (public or private) cloud services on behalf of one or more consumers of that service via three primary roles including aggregation, integration and customisation brokerage. 374 (viii) Global in-house centers (GICs) GICs were first established in India during the late 1990s with a focus on cost reduction by utilising inexpensive technical resources and relatively affordable real estate. GICs are offshore centers that perform designated functions for large organizations. GICs in India now number about 1,100, employing more than 800,000 individuals and generating approximately USD 23 billion in revenue. GICs‘ ability to create cost savings for an enterprise while tapping India‘s talent pool have led to that impressive growth. 375 They have played a pivotal role in ushering in an age of data analytics and digital transformation. India currently has GICs operating across numerous sectors, including IT and Information Technology Enabled Services (ITeS), engineering and software development, banking, financial services and insurance, telecom etc., with growing concentration in the aerospace, healthcare, pharma, and biotech industries. Knowledge-based services particularly analytics, finance and accounting, and technical support services are the leading functions being carried out in India centers. Data localisation and restriction of cross-border data flows could have a severe impact on the growth of the GICs in India. (ix) Impact on Indian start-up eco system Most start-ups rely on the cloud to host their businesses and provide computational services at a low cost in order to be competitive. Instead of making the capital investment to buy huge 372 Use of data, statistical algorithms and machine learning techniques to identify the likelihood of future outcomes based on historical data. 373 Thomas H. Davenport, 'Analytics 3.0', Harvard Business Review (December 2013), available at: https://hbr.org/2013/12/analytics-30, (last accessed 20 November 2017). 374 Daryl Plummer, ‗Cloud Services Brokerage: A Must-Have for Most Organizations‘, Forbes (22 March 2012), available at: https://www.forbes.com/sites/gartnergroup/2012/03/22/cloud-services-brokerage-a-must-have-formost-organizations/#21efd19e2c6e, (last accessed 20 November 2017). 375 Arpan Sheth et al., ‗Global In-house Centers in India‘, Bain & Company (2017), available at: http://www.bain.com/publications/articles/global-in-house-centers-in-india.aspx, (last accessed 27 October 2017). 72
amounts of computer hardware, they use cloud servers to meet their needs. Cloud computing works because for most purposes, it is not relevant to a consumer where their data is stored, as long as it is always available to them in network terms. Data localisation laws, however, threaten this model of low-capital-investment, high-availability services. According to studies in countries that are considering or have considered forced data localisation laws, local companies would be required to pay 30-60% more for their computing needs than if they could go outside the country‘s borders. 376 (x) Impact on development of telecommunication sector India currently has a data localisation mandate with respect to customer account information in the telecom sector. From industry experience, this does cause some inconveniences with regard to international clearing house activities particularly with regard to global telecom companies that are looking to provide enterprise level telecom consolidation. 9.4 International Practices Russia Russia enacted Federal Law No. 242-FZ, which, mandates that all data operators in Russia ensure that the recording, systematisation, accumulation, storage, change and extraction of personal data of Russian citizens occurs with the use of data centres located in the territory of the Russian Federation during the course of collection of relevant personal data of individuals, including via the Internet. Therefore, any organisation which collects data relating to Russian citizens must be stored on servers or IT systems which are located in Russia. A data operator could mean a state or municipal body, a legal or a physical person that organises or carries out (alone or jointly with other persons) the personal data and determines the purposes of personal data processing and other operations relating to personal data. This law also requires data operators to notify the Russian Data Protection Authority, the Roskomnadzor, of the location of the server where the data is stored. 377 China In China, the primary law relating to data localisation is the Chinese Cybersecurity Law, 378 which partially came into force in June 2017. The crux of this law relating to data localisation is found in Article 37, which states that Chinese citizen‘s personal information and important data, which are collected and generated by critical information infrastructure (CII) operators in China must be stored domestically on Chinese servers. CII operators must also provide 376 Erica Fraser, ‗Data Localisation and the Balkanisation of the Internet‘, 13(3) SCRIPTed 359 (December 2016). 377 Article 16(4)(7), Federal Law No. 242-FZ. 378 Cybersecurity Law, 2016. An unofficial English translation of this legislation is available at: The National People‘s Congress of the People‘s Republic of China, People's Republic of China Network Security Law (2016), available at: http://www.npc.gov.cn/npc/xinwen/2016-11/07/content_2001605.htm, (last accessed 11 November 2017). 73
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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
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information can then be used to cre
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Privacy is a complex concept that h
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The FIPPS were soon followed by the
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In light of these developments, the
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OECD Guidelines, 68 and sought to a
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Constitution - the right against un
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visits at night and regular surveil
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or necessary for legal compliance.
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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 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: (iii) IT-BPO/BPM Industrial Growth
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
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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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