white_paper_on_data_protection_in_india_171127_final_v2

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encryption keys to government authorities. CII while not explicitly defined, is understood to mean public communication and information services. Further, network operators or providers of network products which violate Article 37, will be ordered by the relevant departments to correct their actions. In the event that they fail to comply with these instructions, then the departments can issue warnings, confiscate illegal income and impose penalties. They can also suspend business operations, shut down websites and revoke business certificates or licenses. Australia In Australia, the Personally Controlled Electronic Health Records Act, 2012 provides that where a system operator, a registered repository operator, or a registered contracted service provider holds the health records of an individual, or has access to such records, then such records cannot be taken outside Australia. The system operator is not permitted to process, or allow such information to be processed, outside Australia. The system operator is also not permitted to allow another person to hold the records, or take records outside Australia, or to process information relating to the records outside Australia. 379 Canada In Canada, the PIPEDA does not contain any data localisation requirements. However, provincial law in Nova Scotia (Personal Information International Disclosure Protection Act, 2006) requires that personal information created by public institutions (such as government agencies, schools and hospitals) be stored on servers located within Canada. 380 Vietnam In Vietnam, the Decree on Management, Provision, and Use of Internet Services and Information Content Online 381 (Decree 72) requires a range of Internet service providers to maintain within Vietnam, a copy of any information they hold in order to facilitate the inspection of information by authorities, specifically providing that organisations and enterprises must have at least one server system in Vietnam serving the inspection, storage, and provision of information at the request of competent authorities. 382 Decree 72 applies to general websites, social networks, mobile networks, and game service providers. 383 Indonesia 379 Section 77, Personally Controlled Electronic Health Records Act, 2012. 380 Section 5, Personal Information International Disclosure Protection Act, 2006. 381 Decree on the management, provision and use of Internet services and online information (No. 72/2013/ND- CP). 382 Article 24(2), Decree on Management, Provision and Use of Internet Services and Online Information (No. 72/2013), available at https://vnnic.vn/sites/default/files/vanban/Decree%20No72-2013-ND-CP.PDF, (last accessed 17 November 2017). 383 Article 25(8) (social networks), Article 28(2) (mobile networks), Art. 34(2) (game service providers) of the Decree on Management, Provision and Use of Internet Services and Online Information (No. 72/2013), available at http://www.moit.gov.vn/Images/FileVanBan/_ND72-2013-CPEng.pdf, (last accessed 20 November 2017). 74
In Indonesia, the regulation regarding the Provision of Electronic System and Transactions 384 mandates the local storage of data relating to electronic system operators for public service. Further, Regulation 20/2016 on Personal Data Protection in Electronic System provides that electronic system providers are required to process protected private data only in data centers and disaster recovery centers located in Indonesia. 385 9.5 Provisional Views From these practices it emerges that certain countries have embraced data localisation in some form or manner. However, most countries, do not have a data localisation mandate. India will have to carefully balance the enforcement benefits of data localisation with the costs involved pursuant to such requirement. Different types of data will have to be treated differently, given their significance for enforcement and industry. It appears that a one-sizefits-all model may not be the most appropriate. Thus while data localisation may be considered in certain sensitive sectors, it may not be advisable to prescribe it across the board. 9.6 Questions 1. What are your views on data localisation? 2. Should there be a data localisation requirement for the storage of personal data within the jurisdiction of India? 3. If yes, what should be the scope of the localisation mandate? Should it include all personal information or only sensitive personal information? 4. If the data protection law calls for localisation, what would be impact on industry and other sectors? 5. Are there any other issues or concerns regarding data localisation which have not been considered above? 384 Regulation (20/2016) on Personal Data Protection in Electronic Systems. 385 Baker McKenzie, ‗Indonesia: New Regulation on Personal Data Protection‘ (3 January 2017), available at: http://www.bakermckenzie.com/en/insight/publications/2016/12/new-implementing-regulation-personal-data/, (last accessed 10 November 2017). 75
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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
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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 and 82: (iii) IT-BPO/BPM Industrial Growth
Page 83: amounts of computer hardware, they
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
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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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