The General Data Protection Regulation and You

A cursory look at your email inbox this past month presents an intriguing trend. Multiple online services seem to have taken it upon themselves to notify changes to their Privacy Policies at the same time. The reason, simply, is that the European Union’s General Data Protection Regulation (GDPR) comes into force on May 25, 2018.

The GDPR marks a substantial overhaul of the existing data protection regime in the EU, as it replaces the earlier ‘Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data.’ The Regulation was adopted by the European Parliament in 2016, with a period of almost two years to allow entities sufficient time to comply with their increased obligations.

The GDPR is an attempt to harmonize and strengthen data protection across Member States of the European Union. CCG has previously written about the Regulation and what it entails here. For one, the instrument is a ‘Regulation’, as opposed to a ‘Directive’. A Regulation is directly binding across all Member States in its entirety. A Directive simply sets out a goal that all EU countries must achieve, but allows them discretion as to how. Member States must enact national measures to transpose a Directive, and this can sometimes lead to a lack of uniformity across Member States.

The GDPR introduces, among other things, additional rights and protections for data subjects. This includes, for instance, the introduction of the right to data portability, and the codification of the controversial right to be forgotten. Our writing on these concepts can be found here, and here. Another noteworthy change is the substantial sanctions that can be imposed for violations. Entities that fall foul of the Regulation may have to pay fines up to 20 million Euros, or 4% of global annual turnover, whichever is higher.

The Regulation also has consequences for entities and users outside the EU. First, the Regulation has expansive territorial scope, and applies to non-EU entities if they offer goods and services to the EU, or monitor the behavior of EU citizens. The EU is also a significant digital market, which allows it to nudge other jurisdictions towards the standards it adopts. The Regulation (like the earlier Directive) restricts the transfer of personal data to entities outside the EU to cases where an adequate level of data protection can be ensured. This has resulted in many countries adopting regulation in compliance with EU standards. In addition, with the implementation of the GDPR, companies that operate in multiple jurisdictions might prefer to maintain parity between their data protection policies. For instance, Microsoft has announced that it will extend core GDPR protections to its users worldwide. As a consequence, many of the protections offered by the GDPR may in effect become available to users in other jurisdictions as well.

The implementation of the GDPR is also of particular significance to India, which is currently in the process of formulating its own data protection framework. The Regulation represents a recent attempt by a jurisdiction (that typically places a high premium on privacy) to address the harms caused by practices surrounding personal data. The lead-up to its adoption and implementation has generated much discourse on data protection and privacy. This can offer useful lessons as we debate the scope and ambit of our own data protection regulation.

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Towards a Data Protection Framework (CCG Privacy Law Series)

Smitha and I are writing a series of papers on a data protection law for India, based on our research. We hope that our discussion of the options before us and their relative merits and demerits will help other engage with these difficult questions in a nuanced manner.

The first paper sets out the context for the data protection law. It discusses the
reasons and purpose for regulation and what specifically will be regulated.
It also discusses who will be regulated, since this is important while
considering the regulatory strategies to use while implementing the data
protection principles. It is available here.

Back to the Basics: Framing a New Data Protection Law for India

Over the past decade or so, the use of personal and big data has changed the way many businesses and governments operate. Regulators and legislative bodies have been struggling to keep up with the changes in technology, and increasing concerns about what it means for the privacy of individuals.

In India, we have worked with the Information Technology Act, 2000 (IT Act)[1], and the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (Data Protection Rules) for a few years now[2]. These rules were arguably put together as a response to claims that Indian law did not meet European data protection standard, and for the purpose of ensuring that Indian companies do not lose cross border business (with the European Union)[3]. The rules are fraught with inconsistencies, right from the scope of the rules, to the manner in which they can be enforced[4].

Barring these rules, we have had minimal regulations on the use of personal data in certain sectors[5].

The Committee of Experts (Committee), constituted by Ministry of Electronics and Information Technology (MEITY), is currently working on recommendations regarding a new legal and regulatory framework for protection of personal data in India[6]. With all signs pointing only towards an increase in not only data driven businesses, but also data driven solutions to problems in many aspects of our life, it is imperative that we get it right this time.

The constant change and development in tech over the past few decades has shown us that it may be difficult to predict the way our technology and the internet will look in 10 years. It may be even more difficult to put in place the perfect legal system that addresses such technology. However, ensuring that the basic premise of the data protection law – what / who does it aim to protect, what the scope of the law is, and what principles the law is meant to uphold – is balanced and robust, will go a long way in ensuring that we have a strong, yet flexible legal framework[7].

In my paper titled ‘Back to the Basics: Framing a New Data Protection Law for India’, I take a preliminary look at each of these three concepts, while focusing largely on some of the principles that data protection laws have traditionally relied on, and how they can be revisited in today’s context.

The paper is available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3113536

 

 

[1] Information Technology Act, 2000, available at https://indiankanoon.org/doc/1965344/ (last visited on January 30, 2018)

[2] Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011, available at http://www.wipo.int/edocs/lexdocs/laws/en/in/in098en.pdf (last visited on January 30, 2018)

[3] Krishna Prasad, Smitha, (Draft) Paper on Information Technology Act, 2000 and the Data Protection Rules (December 30, 2017). Available at SSRN: https://ssrn.com/abstract=3094792 (last visited on January 30, 2018)

[4] Krishna Prasad, Smitha, (Draft) Paper on Information Technology Act, 2000 and the Data Protection Rules (December 30, 2017). Available at SSRN: https://ssrn.com/abstract=3094792 (last visited on January 30, 2018)

[5] International Comparative Legal Guide, Chapter on Data Protection in India, 2017, https://iclg.com/practice-areas/data-protection/data-protection-2017/india (last visited on January 30, 2018)

[6] http://meity.gov.in/writereaddata/files/meity_om_constitution_of_expert_committee_31072017.pdf (last visited on January 30, 2018)

[7] Krishna Prasad, Smitha, “Defining ‘personal info’ broadly key to protecting it”, January 21, 2018, available at:  http://m.deccanherald.com/?name=http://www.deccanherald.com/content/655012/defining-personal-info-broadly-key.html (last visited on January 30, 2018)

Call for Applications – Civil Liberties

Update: Deadline to apply extended to January 15, 2018! 

The Centre for Communication Governance at the National Law University Delhi (CCG) invites applications for research positions in its Civil Liberties team on a full time basis.

About the Centre

The Centre for Communication Governance is the only academic research centre dedicated to working on the information law and policy in India and in a short span of four years has become a leading centre on information policy in Asia. It seeks to embed human rights and good governance within communication policy and protect digital rights in India through rigorous academic research and capacity building.

The Centre routinely works with a range of international academic institutions and policy organizations. These include the Berkman Klein Center at Harvard University, the Programme in Comparative Media Law and Policy at the University of Oxford, the Center for Internet and Society at Stanford Law School, Hans Bredow Institute at the University of Hamburg and the Global Network of Interdisciplinary Internet & Society Research Centers. We engage regularly with government institutions and ministries such as the Law Commission of India, Ministry of Electronics & IT, Ministry of External Affairs, the Ministry of Law & Justice and the International Telecommunications Union. We work actively to provide the executive and judiciary with useful research in the course of their decision making on issues relating to civil liberties and technology.

CCG has also constituted two advisory boards, a faculty board within the University and one consisting of academic members of our international networks. These boards will oversee the functioning of the Centre and provide high level inputs on the work undertaken by CCG from time to time.

About Our Work

The work at CCG is designed to build competence and raise the quality of discourse in research and policy around issues concerning civil liberties and the Internet, cybersecurity and global Internet governance. The research and policy output is intended to catalyze effective, research-led policy making and informed public debate around issues in technology and Internet governance.

The work of our civil liberties team covers the following broad areas:

  1. Freedom of Speech & Expression: Research in this area focuses on human rights and civil liberties in the context of the Internet and emerging communication technology in India. Research on this track squarely addresses the research gaps around the architecture of the Internet and its impact on free expression.
  2. Access, Markets and Public Interest: The research under this area will consider questions of access, including how the human right to free speech could help to guarantee access to the Internet. It would identify areas where competition law would need to intervene to ensure free, fair and human rights-compatible access to the Internet, and opportunities to communicate using online services. Work in this area will consider how existing competition and consumer protection law could be applied to ensure that freedom of expression in new media, and particularly the internet, is protected given market realities on the supply side. We will under this track put out material regarding the net neutrality concerns that are closely associated to the competition, innovation, media diversity and protection of human rights especially rights to free expression and the right to receive information and particularly to substantive equality across media. It will also engage with existing theories of media pluralism in this context.
  3. Privacy, Surveillance & Big Data: Research in this area focuses on surveillance as well as data protection practices, laws and policies. The work may be directed either at the normative questions that arise in the context of surveillance or data protection, or at empirical work, including data gathering and analysis, with a view to enabling policy and law makers to better understand the pragmatic concerns in developing realistic and effective privacy frameworks. This work area extends to the right to be forgotten and data localization.

Role

CCG is a young and continuously evolving organization and the members of the centre are expected to be active participants in building a collaborative, merit led institution and a lasting community of highly motivated young researchers.

Selected applicants will ordinarily be expected to design and produce units of publishable research with Director(s)/ senior staff members. They will also be recommending and assisting with designing and executing policy positions and external actions on a broad range of information policy issues.

Equally, they will also be expected to participate in other work, including writing opinion pieces, blog posts, press releases, memoranda, and help with outreach. The selected applicants will also represent CCG in the media and at other events, roundtables, and conferences and before relevant governmental, and other bodies. In addition, they will have organizational responsibilities such as providing inputs for grant applications, networking and designing and executing Centre events.

Qualifications

The Centre welcomes applications from candidates with advanced degrees in law, public policy and international relations.

  • All candidates must preferably be able to provide evidence of an interest in human rights / technology law and / or policy / Internet governance/ national security law as well. In addition, they must have a demonstrable capacity for high-quality, independent work.
  • In addition to written work, a project/ programme manager within CCG will be expected to play a significant leadership role. This ranges from proactive agenda-setting to administrative and team-building responsibilities.
  • Successful candidates for the project / programme manager position should show great initiative in managing both their own and their team’s workloads. They will also be expected to lead and motivate their team through high stress periods and in responding to pressing policy questions.

However, the length of your resume is less important than the other qualities we are looking for. As a young, rapidly-expanding organization, CCG anticipates that all members of the Centre will have to manage large burdens of substantive as well as administrative work in addition to research. We are looking for highly motivated candidates with a deep commitment to building information policy that supports and enables human rights and democracy.

At CCG, we aim very high and we demand a lot of each other in the workplace. We take great pride in high-quality outputs and value individuality and perfectionism. We like to maintain the highest ethical standards in our work and workplace, and love people who manage all of this while being as kind and generous as possible to colleagues, collaborators and everyone else within our networks. A sense of humour will be most welcome. Even if you do not necessarily fit requirements mentioned in the two bulleted points but bring to us the other qualities we look for, we will love to hear from you.

[The Centre reserves the right to not fill the position(s) if it does not find suitable candidates among the applicants.]

Positions

Based on experience and qualifications, successful applicants will be placed in the following positions. Please note that our interview panel has the discretion to determine which profile would be most suitable for each applicant.

  • Programme Officer (2-4 years’ work experience)
  • Project Manager (4-6 years’ work experience)
  • Programme Manager (6-8 years’ work experience)

A Master’s degree from a highly regarded programme might count towards work experience.

CCG staff work at the Centre’s offices at National Law University Delhi’s campus. The positions on offer are for duration of one year and we expect a commitment for two years.

Remuneration

The salaries will be competitive, and will usually range from ₹50,000 to ₹1,20,000 per month, depending on multiple factors including relevant experience, the position and the larger research project under which the candidate can be accommodated.

Where candidates demonstrate exceptional competence in the opinion of the interview panel, there is a possibility for greater remuneration.

Procedure for Application

Interested applicants are required to send the following information and materials by December 30, 2017 to ccgcareers@nludelhi.ac.in.

  1. Curriculum Vitae (maximum 2 double spaced pages)
  2. Expression of Interest in joining CCG (maximum 500 words).
  3. Contact details for two referees (at least one academic). Referees must be informed that they might be contacted for an oral reference or a brief written reference.
  4. One academic writing sample of between 1000 and 1200 words (essay or extract, published or unpublished).

Shortlisted applicants may be called for an interview.

 

CCG’s recommendations to the TRAI Consultation Paper on Privacy, Security and Ownership of Data in the Telecom Sector – Part III

In this series of blogposts, we discuss CCG’s responses and recommendations to the TRAI (available here), in response to their Consultation Paper on Privacy, Security and Ownership of the Data in the Telecom Sector. We focus on the principles and concerns that should govern the framing of any new data protection regime, whether limited to the telecom sector or otherwise. 

In our previous posts, we discussed the background against which we have provided our responses and recommendations, and the need for a separate regulatory framework for data within the telecom sector, in the context of the jurisdiction and powers of the TRAI.

In this post, we look at the basic data protection principles that we recommend form the basis for any new data protection regulation. Several of these principles are also discussed in the white paper of the Committee of Experts on a Data Protection Framework for India.

Any new data protection regulation, whether applicable across industries and sectors, or applicable only to the telecom sector, should be based on sound principles of privacy and data protection. As discussed in the Consultation Paper, the Report of the Group of Experts on Privacy[1] (GOE Report) identified 9 national privacy principles to be adopted in drafting a privacy law for India. These principles are listed below[2]:

  • Notice: A data controller, which refers to any organization that determines the purposes and means of processing the personal information of users, shall give simple to understand notice of its information practices to all individuals, in clear and concise language, before any personal information is collected from them. Such notices should include disclosures on what personal information is being collected; purpose for collection and its use; whether it will be disclosed to third parties; notification in case of data breach, etc.
  • Choice and consent: A data controller shall give individuals choices (opt-in/opt-out) with regard to providing their personal information, and take individual consent only after providing notice of its information practices.
  • Collection limitation: A data controller shall only collect personal information from data subjects as is necessary for the purposes identified for such collection.
  • Purpose limitation: Personal data collected and processed by data controllers should be adequate and relevant to the purposes for which they are processed.
  • Access and correction: Individuals shall have access to personal information about them held by a data controller and be able to seek correction, amendments, or deletion of such information, where it is inaccurate.
  • Disclosure of Information: A data controller shall only disclose personal information to third parties after providing notice and seeking informed consent from the individual for such disclosure.
  • Security: A data controller shall secure personal information using reasonable security safeguards against loss, unauthorised access or use and destruction.
  • Openness: A data controller shall take all necessary steps to implement practices, procedures, policies and systems in a manner proportional to the scale, scope, and sensitivity to the data they collect, in order to ensure compliance with the privacy principles, information regarding which shall be made in an intelligible form, using clear and plain language, available to all individuals.
  • Accountability: The data controller shall be accountable for complying with measures which give effect to the privacy principles. Such measures should include mechanisms to implement privacy policies, including training and education, audits, etc.

With the growth of businesses driven by big data, there is now a demand for re-thinking these principles, especially those relating to notice and consent[3].

While notice, consent and the other principles set forth in the GOE Report have formed the basis for data protection laws for many years now, additional principles have been developed in many jurisdictions across the world. In order to ensure that any new regulations in India are up to date and effective, it will be prudent to study such principles and identify the best practices that can then be incorporated into Indian law.

Graham Greenleaf has compared data protection laws across Europe and outside Europe and found that today, second and third generation ‘European Standards’ are being implemented across jurisdictions[4]. These ‘European Standards’, refer to standards that are applicable under European Union (EU) law, in addition to the original principles developed by the Organisation for Economic Co-operation and Development (OECD)[5]. The second generation European Standards that are most commonly seen outside the EU are:

  • Recourse to the courts to enforce data privacy rights (including. compensation, and appeals from decisions of DPAs)
  • Destruction or anonymisation of personal data after a period
  • Restricted data exports based on data protection provided by recipient country (‘adequate’), or alternative guarantees
  • Independent Data Protection Authority (DPA)
  • Minimum collection necessary for the purpose (not only ‘limited’)
  • General requirement of ‘fair and lawful processing’ (not only collection)
  • Additional protections for sensitive data in defined categories
  • To object to processing on compelling legitimate grounds, including to ‘opt-out’ of direct marketing uses of personal data
  • Additional restrictions on some sensitive processing systems (notification; ‘prior checking’ by DPA.)
  • Limits on automated decision-making (including right to know processing logic)

He also notes that there are several new principles put forward in the EU’s new General Data Protection Regulation[6] (GDPR) itself, and that it remains to be seen which of these will become global standards outside the EU. The most popular of these principles, which he refers to as ‘3rd General European Standards’ are[7]:

  • Data breach notifications to the DPA for serious breaches
  • Data breach notifications to the data subject (if high risk)
  • Class action suits to be allowed before DPAs or courts by public interest privacy groups
  • Direct liability for processors as well as controllers
  • DPAs to make decisions and issue administrative sanctions, including fines.
  • Opt-in requirements for marketing
  • Mandatory appointment of data protection officers in companies that process sensitive personal data.

We note that there exist other proposed frameworks that aim to regulate data protection and ease compliances required by businesses. Such additional frameworks may also be considered while formulating new data protection principles and regulations in India. However, it is recommended that the ‘European Standards’ described above, i.e. those set out in the GDPR may be adopted as the base on which any new regulations are built. This would ensure that India has greater chances of being recognised as having ‘adequate’ data protection frameworks by the EU, and improve our trade relations with the EU and other countries that adopt similar standards.

Professor Greenleaf’s studies suggest that the 2nd and 3rd General European Standards are being adopted by several countries outside the European Union. We note here that adoption of principles that are considered best practices across jurisdictions would also assist in increasing interoperability for businesses that operate across borders.

While adoption of these practices is likely to raise the cost of compliance, it is also likely to ensure that India remains a very competitive market globally for the outsourcing of services. In the long term, this will benefit Indian industry and the Indian economy. It will also safeguard the privacy rights of Indian citizens in the best possible manner.

[1] Report of the Group of Experts on Privacy, available at http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf

[2] Report of the Group of Experts on Privacy, Chapter 3, as summarised in the TRAI Consultation Paper on Privacy, Security and Ownership of the Data in the Telecom Sector, pages 7-9

[3] TRAI Consultation Paper on Privacy, Security and Ownership of the Data in the Telecom Sector, Page 9; and Rahul Matthan, Beyond Consent: A New Paradigm for Data Protection, available at http://takshashila.org.in/takshashila-policy-research/discussion-document-beyond-consent-new-paradigm-data-protection/ (last visited on November 5, 2017)

[4] Graham Greenleaf, European data privacy standards in laws outside Europe, Privacy Law and Business International Report, Issue 149

[5]OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, available at http://www.oecd.org/sti/ieconomy/oecdguidelinesontheprotectionofprivacyandtransborderflowsofpersonaldata.htm (last visited on November 5, 2017)

[6] General Data Protection Regulation, Regulation (EU) 2016/679

[7] Graham Greenleaf, Presentation on 2nd & 3rd generation data privacy standards implemented in laws outside Europe (to be published and available on request).

CCG’s recommendations to the TRAI Consultation Paper on Privacy, Security and Ownership of Data in the Telecom Sector – Part II

In this series of blogposts, we discuss CCG’s responses and recommendations to the TRAI (available here), in response to their Consultation Paper on Privacy, Security and Ownership of the Data in the Telecom Sector. We focus on the principles and concerns that should govern the framing of any new data protection regime, whether limited to the telecom sector or otherwise.

In our previous blogpost, the first of the series, we discussed the background against which we have provided our responses and recommendations. In this post, we look at whether there is a need for a separate regulatory framework for data within the telecom sector, and the jurisdiction and powers of the TRAI.

We note that the Consultation Paper makes several references to stakeholders / players in the digital / telecommunications eco-system that are not traditional telecommunication service providers. These include online content / application service providers, device manufacturers, and providers of online communication services, operating systems, browsers. The Consultation Paper poses several questions about the regulation of data use and processing by such stakeholders.

In this context, we have examined the role and responsibilities of the TRAI beyond the regulation of traditional telecommunication service providers.

The preamble to the Telecom Regulatory Authority of India Act, 1997 (TRAI Act) states that the law is meant to “provide for the establishment of the Telecom Regulatory Authority of India and the Telecom Disputes Settlement and Appellate Tribunal to regulate the telecommunication services, adjudicate disputes, dispose of appeals and to protect the interests of service providers and consumers of the telecom sector, to promote and ensure orderly growth of the telecom sector and for matters connected therewith or incidental thereto”.

Telecommunication services have been defined to mean “service of any description (including electronic mail, voice mail, data services, audio tax services, video tax services, radio paging and cellular mobile telephone services) which is made available to users by means of any transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature, by wire, radio, visual or other electromagnetic means”[1]. Broadcasting services have been excluded from the definition of telecommunication services[2].

Service providers means either the government as a service provider, or a licensee[3] – which refers to any person licensed to provide telecommunication services under the Indian Telegraph Act, 1885[4].

Section 11 of the TRAI Act describes the functions of the TRAI. These functions are divided into two broad areas: (i) making recommendations of certain matters, and (ii) regulatory functions. The regulatory functions largely deal with monitoring compliance with the telecom licenses, and other functions of service providers.

The TRAI’s powers to make recommendations extend to the following matters:

  • need and timing for introduction of new service provider;
  • terms and conditions of licence to a service provider;
  • revocation of licence for non-compliance of terms and conditions of licence;
  • measures to facilitate competition and promote efficiency in the operation of telecommunication services so as to facilitate growth in such services;
  • technological improvements in the services provided by the service providers;
  • type of equipment to be used by the service providers after inspection of equipment used in the network;
  • measures for the development of telecommunication technology and any other matter relatable to telecommunication industry in general;
  • efficient management of available spectrum

We note that most of the above matters deal specifically with functions of service providers. However, as mentioned above, telecommunication services do include some services beyond those provided by traditional telecommunication service providers – such as electronic mail and voice mail among others.

In this context, we would argue that the functions and powers of the TRAI would not extend to making recommendations regarding, or regulating online content and application providers, device manufacturers or other businesses that do not provide communication services.

At best, the TRAI may derive powers to make recommendations regarding based on questions posed in the Consultation Paper, under sub-section (iv) which provides the TRAI with the authority to make recommendations on improving efficiency of telecommunication services.

In our next posts in this series, we will discuss principles that we believe any data protection regulation, irrespective of the sector it applies to, should address. We also note that as Indian businesses grow and adopt new technology, they are increasingly beginning to function across sectors. In this context, we recommend that a basic data protection law that is applicable horizontally across sectors and regions, to cope with these cross-sectoral business models.  Where required, additional regulations may be made applicable to collection and processing of sector specific sensitive personal data.

[1] Section 2(1)(k) of the Telecom Regulatory Authority of India Act, 1997

[2] Section 2(1)(k) of the Telecom Regulatory Authority of India Act, 1997

[3] Section 2(1)(j) of the Telecom Regulatory Authority of India Act, 1997

[4] Section 2(1)(e) of the Telecom Regulatory Authority of India Act, 1997

CCG’s recommendations to the TRAI Consultation Paper on Privacy, Security and Ownership of Data in the Telecom Sector – Part I

TRAI published a Consultation Paper on Privacy, Security and Ownership of the Data in the Telecom Sector (Consultation Paper) on August 9, 2017.

Since then, the Supreme Court of India has affirmed that the right to privacy is a fundamental right under the Indian Constitution, in a detailed judgment in Puttaswamy v. Union of India[1]. The Ministry of Electronics and Information Technology (MEITY), Government of India has also set up a Committee of Experts (COE) to identify key data protection issues in India and recommend methods of addressing them[2]. The COE was also expected to suggest a draft data protection bill.

The COE has now drafted a white paper to solicit public comments on the shape that India’s data protection law must take.

With so many discussions on the state of the right to privacy and data protection laws in India, it is clear that there is an immediate need for better laws and regulations on privacy and data protection in India, in the telecom sector as well as other sectors.

The Centre for Communication Governance (CCG) responded with comments to the TRAI Consultation Paper earlier this month (see our full response here or here).

In this series of blogposts, we discuss CCG’s responses and recommendations to the TRAI, in response to their Consultation Paper on Privacy, Security and Ownership of the Data in the Telecom Sector. We focus on the principles and concerns that should govern the framing of any new data protection regime, whether limited to the telecom sector or otherwise. We also highlight those sections of our responses and recommendations that relate to issues and questions discussed in the COE’s white paper.

In today’s post, the first of the series, we highlight the background against which we have provided our responses and recommendations.

1.     Privacy as a Fundamental Right

The Supreme Court in Puttaswamy v. Union of India[3] has affirmed and recognised that the right to privacy is a fundamental right under Article 21 of the Constitution. It may also be drawn as a fundamental right under any of the other fundamental rights recognised under the Constitution. Accordingly, the Court has observed that although the right is not absolute, any restrictions imposed by the State on the right to privacy must be ‘reasonable restrictions’. These reasonable restrictions must meet the various tests for limitations / violations of the right, applicable in relation to the relevant fundamental rights. At the same time, the Court has also noted that there is a positive obligation for the state to create a regulatory environment that allows individuals to enjoy their right to privacy.

In recognising privacy as a fundamental right, J. Chandrachud, J. Chelameswar, J. Kaul and J. Nariman have, in their various opinions have observed that informational privacy is an important aspect of such privacy in this day and age. J. Chandrachud has noted the setting up of the Committee of Experts, and recommended that the central government puts in place a robust data protection regulation in place in order to protect this right.

In the observations that lead up to his conclusions, J. Chandrachud has also noted that data protection regulation is a complex issue which needs to address many aims[4]. The first of these aims is the individual’s right to be left alone. Second and more importantly, the regulation needs to ensure that the individual’s identity is protected. Third, the individual’s autonomy in making decisions about the use of data about them, and their right to know how this data is being used must be protected. Fourth, data protection regulation should ensure that data is not collected in a manner that is discriminatory towards anyone.

2.     Current data protection laws

Our assessment is that the current data protection rules are insufficient to protect the interests of data subjects, including telecom subscribers.

The Consultation Paper has at various points referred to the report of the Group of Experts, headed by (Retd.) Justice A. P. Shah, in 2012 (GOE Report)[5]. We note that this GOE report found the various data protection rules that are currently applicable, inadequate[6]. The GOE Report has examined best practices and principles of data protection laws across the world, and recommended the incorporation of a set of 9 national privacy principles in any proposed privacy law[7]. The GOE Report has then gone on to find that the existing data protection regulations do not meet the requirements set forth in these principles[8].

The existing data protection laws, including particularly the provisions under the Information Technology Act, 2000 (IT Act) and the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 under the IT Act (IT Rules) have also been criticised by industry and civil society members alike[9]. The IT Rules are ambiguous and do not properly define the roles and responsibilities of data controllers and processors[10]. There is no clarity on the nature of the data that the rules are applicable to. Further, the provisions under the IT Act do not provide for penalties or consequences for failure to comply with the IT Rules, and provide only a compensation mechanism that is difficult to enforce[11].

We are in agreement with the part of Consultation Paper which points out that some of the principles set out in the GOE Report may need to be reformulated in today’s age of big data[12]. However, we note that the data protection regulations fall short even of the outdated standards set forth in the principles listed by the GOE Report. More work will be necessary to define new standards and develop strategies to ensure that data protection framework meets these standards.

[1] Writ petition (civil) no 494 of 2012, (2017)6MLJ267

[2] Office Memorandum No. 3(6)j2017-CLES, available at  http://meity.gov.in/writereaddata/files/MeitY_constitution_Expert_Committee_31.07.2017.pdf (last visited on November 5, 2017)

[3] Writ petition (civil) no 494 of 2012, (2017)6MLJ267

[4] Paragraphs 177 and 178, J. Chandrachud’s opinion, Puttaswamy v. Union of India (2017)6MLJ267

[5] Report of the Group of Experts on Privacy, available at http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf (last visited on November 5, 2017)

[6] Report of the Group of Experts on Privacy, Chapter 4

[7] Report of the Group of Experts on Privacy, Chapter 3

[8] Report of the Group of Experts on Privacy, Chapter 4

[9] Outsourcing: India adopts new privacy and security rules for personal information, available at https://www.lexology.com/library/detail.aspx?g=9a9b9ec0-e390-45b8-a6f1-4363e29e9af3 (last visited on November 5, 2017); and Bhairav Acharya, Comments on the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, available at https://cis-india.org/internet-governance/blog/comments-on-the-it-reasonable-security-practices-and-procedures-and-sensitive-personal-data-or-information-rules-2011 (last visited on November 5, 2017)

[10] Smitha Krishna Prasad, Draft white paper on the IT Act and the data protection rules, (to be published, and available on request)

[11] Smitha Krishna Prasad, Draft white paper on the IT Act and the data protection rules, (to be published, and available on request)

[12] TRAI Consultation Paper on Privacy, Security and Ownership of the Data in the Telecom Sector, Page 9