Reflections on Personal Data Protection Bill, 2019

By Sangh Rakshita and Nidhi Singh

Image result for data protection"

 The Personal Data Protection Bill, 2019 (PDP Bill/ Bill) was introduced in the Lok Sabha on December 11, 2019 , and was immediately referred to a joint committee of the Parliament. The joint committee published a press communique on February 4, 2020 inviting comments on the Bill from the public.

The Bill is the successor to the Draft Personal Data Protection Bill 2018 (Draft Bill 2018), recommended by a government appointed expert committee chaired by Justice B.N. Srikrishna. In August 2018, shortly after the recommendations and publication of the draft Bill, the Ministry of Electronics and Information Technology (MeitY) invited comments on the Draft Bill 2018 from the public. (Our comments are available here.)[1]

In this post we undertake a preliminary examination of:

  • The scope and applicability of the PDP Bill
  • The application of general data protection principles
  • The rights afforded to data subjects
  • The exemptions provided to the application of the law

In future posts in the series we will examine the Bill and look at the:

  • The restrictions on cross border transfer of personal data
  • The structure and functions of the regulatory authority
  • The enforcement mechanism and the penalties under the PDP Bill

Scope and Applicability

The Bill identifies four different categories of data. These are personal data, sensitive personal data, critical personal data and non-personal data

Personal data is defined as “data about or relating to a natural person who is directly or indirectly identifiable, having regard to any characteristic, trait, attribute or any other feature of the identity of such natural person, whether online or offline, or any combination of such features with any other information, and shall include any inference drawn from such data for the purpose of profiling. (emphasis added)

The addition of inferred data in the definition realm of personal data is an interesting reflection of the way the conversation around data protection has evolved in the past few months, and requires further analysis.

Sensitive personal data is defined as data that may reveal, be related to or constitute a number of different categories of personal data, including financial data, health data, official identifiers, sex life, sexual orientation, genetic data, transgender status, intersex status, caste or tribe, and religious and political affiliations / beliefs. In addition, under clause 15 of the Bill the Central Government can notify other categories of personal data as sensitive personal data in consultation with the Data Protection Authority and the relevant sectoral regulator.

Similar to the 2018 Bill, the current bill does not define critical personal data and clause 33 provides the Central Government the power to notify what is included under critical personal data. However, in its report accompanying the 2018 Bill, the Srikrishna committee had referred to some examples of critical personal data that relate to critical state interest like Aadhaar number, genetic data, biometric data, health data, etc.

The Bill retains the terminology introduced in the 2018 Draft Bill, referring to data controllers as ‘data fiduciaries’ and data subjects ‘data principals’. The new terminology was introduced with the purpose of reflecting the fiduciary nature of the relationship between the data controllers and subjects. However, whether the use of the specific terminology has more impact on the protection and enforcement of the rights of the data subjects still needs to be seen.

 Application of PDP Bill 2019

The Bill is applicable to (i) the processing of any personal data, which has been collected, disclosed, shared or otherwise processed in India; (ii) the processing of personal data by the Indian government, any Indian company, citizen, or person/ body of persons incorporated or created under Indian law; and (iii) the processing of personal data in relation to any individuals in India, by any persons outside of India.

The scope of the 2019 Bill, is largely similar in this context to that of the 2018 Draft Bill. However, one key difference is seen in relation to anonymised data. While the 2018 Draft Bill completely exempted anonymised data from its scope, the 2019 Bill does not apply to anonymised data, except under clause 91 which gives the government powers to mandate the use and processing of non-personal data or anonymised personal data under policies to promote the digital economy. There are a few concerns that arise in context of this change in treatment of anonymised personal data. First, there are concerns on the concept of anonymisation of personal data itself. While the Bill provides that the Data Protection Authority (DPA) will specify appropriate standards of irreversibility for the process of anonymisation, it is not clear that a truly irreversible form of anonymisation is possible at all. In this case, we need more clarity on what safeguards will be applicable for the use of anonymised personal data.

Second, is the Bill’s focus on the promotion of the digital economy. We have previously discussed some of the concerns regarding focus on the promotion of digital economy in a rights based legislation in our comments to the Draft Bill 2018.

These issues continue to be of concern, and are perhaps heightened with the introduction of a specific provision on the subject in the 2019 Bill (especially without adequate clarity on what services or policy making efforts in this direction, are to be informed by the use of anonymised personal data). Many of these issues are also still under discussion by the committee of experts set up to deliberate on data governance framework (non-personal data). The mandate of this committee includes the study of various issues relating to non-personal data, and to make specific suggestions for consideration of the central government on regulation of non-personal data.

The formation of the non-personal data committee was in pursuance of a recommendation by the Justice Srikrishna Committee to frame a legal framework for the protection of community data, where the community is identifiable. The mandate of the expert committee will overlap with the application of clause 91(2) of the Bill.

Data Fiduciaries, Social Media Intermediaries and Consent Managers

Data Fiduciaries

As discussed above the Bill categorises data controllers as data fiduciaries and significant data fiduciaries. Any person that determines the purpose and means of processing of personal data, (including the State, companies, juristic entities or individuals) is considered a data fiduciary. Some data fiduciaries may be notified as ‘significant data fiduciaries’, on the basis of factors such as the volume and sensitivity of personal data processed, the risks of harm etc. Significant data fiduciaries are held to higher standards of data protection. Under clauses 27-30, significant data fiduciaries are required to carry out data protection impact assessments, maintain accurate records, audit policy and the conduct of its processing of personal data and appoint a data protection officer. 

Social Media Intermediaries

The Bill introduces a distinct category of intermediaries called social media intermediaries. Under clause 26(4) a social media intermediary is ‘an intermediary who primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services’. Intermediaries that primarily enable commercial or business-oriented transactions, provide access to the Internet, or provide storage services are not to be considered social media intermediaries.

Social media intermediaries may be notified to be significant data fiduciaries, if they have a minimum number of users, and their actions have or are likely to have a significant impact on electoral democracy, security of the State, public order or the sovereignty and integrity of India.

Under clause 28 social media intermediaries that have been notified as a significant data fiduciaries will be required to provide for voluntary verification of users to be accompanied with a demonstrable and visible mark of verification.

Consent Managers

The Bill also introduces the idea of a ‘consent manager’ i.e. a (third party) data fiduciary which provides for management of consent through an ‘accessible, transparent and interoperable platform’. The Bill does not contain any details on how consent management will be operationalised, and only states that these details will be specified by regulations under the Bill. 

Data Protection Principles and Obligations of Data Fiduciaries

Consent and grounds for processing

The Bill recognises consent as well as a number of other grounds for the processing of personal data.

Clause 11 provides that personal data shall only be processed if consent is provided by the data principal at the commencement of processing. This provision, similar to the consent provision in the 2018 Draft Bill, draws from various principles including those under the Indian Contract Act, 1872 to inform the concept of valid consent under the PDP Bill. The clause requires that the consent should be free, informed, specific, clear and capable of being withdrawn.

Moreover, explicit consent is required for the processing of sensitive personal data. The current Bill appears to be silent on issues such as incremental consent which were highlighted in our comments in the context of the Draft Bill 2018.

The Bill provides for additional grounds for processing of personal data, consisting of very broad (and much criticised) provisions for the State to collect personal data without obtaining consent. In addition, personal data may be processed without consent if required in the context of employment of an individual, as well as a number of other ‘reasonable purposes’. Some of the reasonable purposes, which were listed in the Draft Bill 2018 as well, have also been a cause for concern given that they appear to serve mostly commercial purposes, without regard for the potential impact on the privacy of the data principal.

In a notable change from the Draft Bill 2018, the PDP Bill, appears to be silent on whether these other grounds for processing will be applicable in relation to sensitive personal data (with the exception of processing in the context of employment which is explicitly barred).

Other principles

The Bill also incorporates a number of traditional data protection principles in the chapter outlining the obligations of data fiduciaries. Personal data can only be processed for a specific, clear and lawful purpose. Processing must be undertaken in a fair and reasonable manner and must ensure the privacy of the data principal – a clear mandatory requirement, as opposed to a ‘duty’ owed by the data fiduciary to the data principal in the Draft Bill 2018 (this change appears to be in line with recommendations made in multiple comments to the Draft Bill 2018 by various academics, including our own).

Purpose and collection limitation principles are mandated, along with a detailed description of the kind of notice to be provided to the data principal, either at the time of collection, or as soon as possible if the data is obtained from a third party. The data fiduciary is also required to ensure that data quality is maintained.

A few changes in the application of data protection principles, as compared to the Draft Bill 2018, can be seen in the data retention and accountability provisions.

On data retention, clause 9 of the Bill provides that personal data shall not be retained beyond the period ‘necessary’ for the purpose of data processing, and must be deleted after such processing, ostensibly a higher standard as compared to ‘reasonably necessary’ in the Draft Bill 2018. Personal data may only be retained for a longer period if explicit consent of the data principal is obtained, or if retention is required to comply with law. In the face of the many difficulties in ensuring meaningful consent in today’s digital world, this may not be a win for the data principal.

Clause 10 on accountability continues to provide that the data fiduciary will be responsible for compliance in relation to any processing undertaken by the data fiduciary or on its behalf. However, the data fiduciary is no longer required to demonstrate such compliance.

Rights of Data Principals

Chapter V of the PDP Bill 2019 outlines the Rights of Data Principals, including the rights to access, confirmation, correction, erasure, data portability and the right to be forgotten. 

Right to Access and Confirmation

The PDP Bill 2019 makes some amendments to the right to confirmation and access, included in clause 17 of the bill. The right has been expanded in scope by the inclusion of sub-clause (3). Clause 17(3) requires data fiduciaries to provide data principals information about the identities of any other data fiduciaries with whom their personal data has been shared, along with details about the kind of data that has been shared.

This allows the data principal to exert greater control over their personal data and its use.  The rights to confirmation and access are important rights that inform and enable a data principal to exercise other rights under the data protection law. As recognized in the Srikrishna Committee Report, these are ‘gateway rights’, which must be given a broad scope.

Right to Erasure

The right to correction (Clause 18) has been expanded to include the right to erasure. This allows data principals to request erasure of personal data which is not necessary for processing. While data fiduciaries may be allowed to refuse correction or erasure, they would be required to produce a justification in writing for doing so, and if there is a continued dispute, indicate alongside the personal data that such data is disputed.

The addition of a right to erasure, is an expansion of rights from the 2018 Bill. While the right to be forgotten only restricts or discontinues disclosure of personal data, the right to erasure goes a step ahead and empowers the data principal to demand complete removal of data from the system of the data fiduciary.

Many of the concerns expressed in the context of the Draft Bill 2018, in terms of the procedural conditions for the exercise of the rights of data principals, as well as the right to data portability specifically, continue to persist in the PDP Bill 2019.

Exceptions and Exemptions

While the PDP Bill ostensibly enables individuals to exercise their right to privacy against the State and the private sector, there are several exemptions available, which raise several concerns.

The Bill grants broad exceptions to the State. In some cases, it is in the context of specific obligations such as the requirement for individuals’ consent. In other cases, State action is almost entirely exempted from obligations under the law. Some of these exemptions from data protection obligations are available to the private sector as well, on grounds like journalistic purposes, research purposes and in the interests of innovation.

The most concerning of these provisions, are the exemptions granted to intelligence and law enforcement agencies under the Bill. The Draft Bill 2018, also provided exemptions to intelligence and law enforcement agencies, so far as the privacy invasive actions of these agencies were permitted under law, and met procedural standards, as well as legal standards of necessity and proportionality. We have previously discussed some of the concerns with this approach here.

The exemptions provided to these agencies under the PDP Bill, seem to exacerbate these issues.

Under the Bill, the Central Government can exempt an agency of the government from the application of this Act by passing an order with reasons recorded in writing if it is of the opinion that the exemption is necessary or expedient in the interest of sovereignty and integrity, security of the state, friendly relations with foreign states, public order; or for preventing incitement to the commission of any cognizable offence relating to the aforementioned grounds. Not only have the grounds on which government agencies can be exempted been worded in an expansive manner, the procedure of granting these exemptions also is bereft of any safeguards.

The executive functioning in India suffers from problems of opacity and unfettered discretion at times, which requires a robust system of checks and balances to avoid abuse. The Indian Telegraph Act, 1885 (Telegraph Act) and the Information Technology Act, 2000 (IT Act) enable government surveillance of communications made over telephones and the internet. For drawing comparison here, we primarily refer to the Telegraph Act as it allows the government to intercept phone calls on similar grounds as mentioned in clause 35 of the Bill by an order in writing. However, the Telegraph Act limits the use of this power to two scenarios – occurrence of a public emergency or in the interest of public safety. The government cannot intercept communications made over telephones in the absence of these two preconditions. The Supreme Court in People’s Union for Civil Liberties v. Union of India, (1997) introduced guidelines to check abuse of surveillance powers under the Telegraph Act which were later incorporated in Rule 419A of the Indian Telegraph Rules, 1951. A prominent safeguard included in Rule 419A requires that surveillance and monitoring orders be issued only after considering ‘other reasonable means’ for acquiring the required information. The court had further limited the scope of interpretation of ‘public emergency’ and ‘public safety’ to mean “the prevalence of a sudden condition or state of affairs affecting the people at large and calling for immediate action”, and “the state or condition of freedom from danger or risk at large” respectively. In spite of the introduction of these safeguards, the procedure of intercepting telephone communications under the Telegraph Act is criticised for lack of transparency and improper implementation. For instance, a 2014 report revealed that around 7500 – 9000 phone interception orders were issued by the Central Government every month. The application of procedural safeguards, in each case would have been physically impossible given the sheer numbers. Thus, legislative and judicial oversight becomes a necessity in such cases.

The constitutionality of India’s surveillance apparatus inclduing section 69 of the IT Act which allows for surveillance on broader grounds on the basis of necessity and expediency and not ‘public emergency’ and ‘public safety’, has been challenged before the Supreme Court and is currently pending. Clause 35 of the Bill also mentions necessity and expediency as prerequisites for the government to exercise its power to grant exemption, which appear to be vague and open-ended as they are not defined. The test of necessity, implies resorting to the least intrusive method of encroachment up on privacy to achieve the legitimate state aim. This test is typically one among several factors applied in deciding on whether a particular intrusion on a right is tenable or not, under human rights law. In his concurring opinion in Puttaswamy (I) J. Kaul had included ‘necessity’ in the proportionality test. (However, this test is not otherwise well developed in Indian jurisprudence).  Expediency, on the other hand, is not a specific legal basis used for determining the validity of an intrusion on human rights. It has also not been referred to in Puttaswamy (I) as a basis of assessing a privacy violation. The use of the term ‘expediency’ in the Bill is deeply worrying as it seems to bring down the threshold for allowing surveillance which is a regressive step in the context of cases like PUCL and Puttaswamy (I). A valid law along with the principles of proportionality and necessity are essential to put in place an effective system of checks and balances on the powers of the executive to provide exemptions. It seems unlikely that the clause will pass the test of proportionality (sanction of law, legitimate aim, proportionate to the need of interference, and procedural guarantees against abuse) as laid down by the Supreme Court in Puttaswamy (I).

The Srikrishna Committee report had recommended that surveillance should not only be conducted under law (and not executive order), but also be subject to oversight, and transparency requirements. The Committee had argued that the tests of lawfulness, necessity and proportionality provided for under clauses 42 and 43 (of the Draft Bill 2018) were sufficient to meet the standards set out under the Puttaswamy judgment. Since the PDP Bill completely does away with all these safeguards and leaves the decision to executive discretion, the law is unconstitutional.  After the Bill was introduced in the Lok Sabha, J. Srikrishna had criticised it for granting expansive exemptions in the absence of judicial oversight. He warned that the consequences could be disastrous from the point of view of safeguarding the right to privacy and could turn the country into an “Orwellian State”. He has also opined on the need for a separate legislation to govern the terms under which the government can resort to surveillance.

Clause 36 of the Bill deals with exemption of some provisions for certain processing of personal data. It combines four different clauses on exemption which were listed in the Draft Bill 2018 (clauses 43, 44, 46 and 47). These include processing of personal data in the interests of prevention, detection, investigation and prosecution of contraventions of law; for the purpose of legal proceedings; personal or domestic purposes; and journalistic purposes. The Draft Bill 2018 had detailed provisions on the need for a law passed by Parliament or the State Legislature which is necessary and proportionate, for processing of personal data in the interests of prevention, detection, investigation and prosecution of contraventions of law. Clause 36 of the Bill does not enumerate the need for a law to process personal data under these exemptions. We had argued that these exemptions granted by the Draft Bill 2018 (clauses 43, 44, 46 and 47) were wide, vague and needed clarifications, but the exemptions under clause 36 of the Bill  are even more ambiguous as they merely enlist the exemptions without any specificities or procedural safeguards in place.

In the Draft Bill 2018, the Authority could not give exemption from the obligation of fair and reasonable processing, measures of security safeguards and data protection impact assessment for research, archiving or statistical purposes As per the current Bill, the Authority can provide exemption from any of the provisions of the Act for research, archiving or statistical purposes.

The last addition to this chapter of exemptions is that of creating a sandbox for encouraging innovation. This newly added clause 40 is aimed at encouraging innovation in artificial intelligence, machine-learning or any other emerging technology in public interest. The details of what the sandbox entails other than exemption from some of the obligations of Chapter II might need further clarity. Additionally, to be considered an eligible applicant, a data fiduciary has to necessarily obtain certification of its privacy by design policy from the DPA, as mentioned in clause 40(4) read with clause 22.

Though well appreciated for its intent, this provision requires clarification on grounds of selection and details of what the sandbox might entail.


[1] At the time of introduction of the PDP Bill 2019, the Minister for Law and Justice of India, Mr. Ravi Shankar Prasad suggested that over 2000 inputs were received on the Draft Bill 2018, based on which changes have been made in the PDP Bill 2019. However, these comments and inputs have not been published by MeitY, and only a handful of comments have been published, by the stakeholders submitting these comments themselves.   

Right to Privacy: The Puttaswamy Effect

By Sangh Rakshita and Nidhi Singh

The Puttaswamy judgement of 2017 reaffirmed the ‘Right to Privacy’ as a fundamental right in Indian Jurisprudence. Since then, it has been used as an important precedent in many cases, to emphasize upon the right to privacy as a fundamental right and to clarify the scope of the same. In this blog, we discuss some of the cases of the Supreme Court and various High Courts, post August 2017, which have used the Puttaswamy judgement and the tests laid in it to further the jurisprudence on right to privacy in India. With the Personal Data Protection Bill tabled in 2019, the debate on privacy has been re-ignited, and as such, it is important to explore the contours of the right to privacy as a fundamental right, post the Puttaswamy judgement.   

Navtej Singh Johar and ors Vs. Union of India (UOI) and Ors., 2018 (Supreme Court)

In this case, the Supreme Court of India unanimously held that Section 377 of the Indian Penal Code 1860 (IPC), which criminalized ‘carnal intercourse against the order of nature’, was unconstitutional in so far as it criminalized consensual sexual conduct between adults of the same sex. The petition, challenged Section 377 on the ground that it was vague and it violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination guaranteed under Articles 14, 15, 19 and 21 of the Constitution. The Court relied upon the judgement in the case of K.S. Puttaswamy v. Union of India, which held that denying the LGBT community its right to privacy on the ground that they form a minority of the population would be violative of their fundamental rights, and that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life.

Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors., 2018 (Supreme Court)

 The Supreme Court upheld the validity of the Aadhar Scheme on the ground that it did not violate the right to privacy of the citizens as minimal biometric data was collected in the enrolment process and the authentication process is not exposed to the internet. The majority upheld the constitutionality of the Aadhaar Act, 2016 barring a few provisions on disclosure of personal information, cognizance of offences and use of the Aadhaar ecosystem by private corporations. They relied on the fulfilment of the proportionality test as laid down in the Puttaswamy (2017) judgment.

Joseph Shine vs. Union of India (UOI), 2018 (Supreme Court)

The Supreme Court decriminalised adultery in this case where the constitutional validity of Section 497 (adultery) of IPC and Section 198(2) of Code of Criminal Procedure, 1973 (CrPC) was challenged. The Court held that in criminalizing adultery, the legislature has imposed its imprimatur on the control by a man over the sexuality of his spouse – in doing that, the statutory provision fails to meet the touchstone of Article 21. Section 497 was struck down on the ground that it deprives a woman of her autonomy, dignity and privacy and that it compounds the encroachment on her right to life and personal liberty by adopting a notion of marriage which subverts true equality. Concurring judgments in this case referred to Puttaswamy to explain the concepts of autonomy and dignity, and their intricate relationship with the protection of life and liberty as guaranteed in the Constitution. They relied on the Puttaswamy judgment to emphasize the dangers of the “use of privacy as a veneer for patriarchal domination and abuse of women.” They also cited Puttaswamy to elucidate that privacy is the entitlement of every individual, with no distinction to be made on the basis of the individual’s position in society.

Indian Young Lawyers Association and Ors. vs. The State of Kerala and Ors., 2018 (Supreme Court)

In this case, the Supreme Court upheld the right of women aged between 10 to 50 years to enter the Sabrimala Temple. The court held Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which restricts the entry of women into the Sabarimala temple, to be ultra vires (i.e. not permitted under the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965). While discussing the guarantee against social exclusion based on notions of “purity and pollution” as an acknowledgment of the inalienable dignity of every individual J. Chandrachud (in his concurring judgment) referred to Puttaswamy specifically to explain dignity as a facet of Article 21. In the course of submissions, the Amicus to the case had submitted that the exclusionary practice in its implementation results in involuntary disclosure by women of both their menstrual status and age which amounts to forced disclosure that consequently violates the right to dignity and privacy embedded in Article 21 of the Constitution of India.

(The judgement is under review before a 9 judge constitutional bench.)

Vinit Kumar Vs. Central Bureau of Investigation and Ors., 2019 (Bombay High Court)

This case dealt with phone tapping and surveillance under section 5(2) of the Indian Telegraph Act, 1885 (Telegraph Act) and the balance between public safety interests and the right to privacy. Section 5(2) of the Telegraph Act permits the interception of telephone communications in the case of a public emergency, or where there is a public safety requirement. Such interception needs to comply with the procedural safeguards set out by the Supreme Court in PUCL v. Union of India (1997), which were then codified as rules under the Telegraph Act. The Bombay High Court applied the tests of legitimacy and proportionality laid down in Puttaswamy, to the interception orders issued under the Telegraph Act, and held that in this case the order for interception could not be substantiated in the interest of public safety and did not satisfy the test of “principles of proportionality and legitimacy” as laid down in Puttaswamy. The Bombay High Court quashed the interception orders in question, and directed that the copies / recordings of the intercepted communications be destroyed.

Central Public Information Officer, Supreme Court of India vs. Subhash Chandra Agarwal, 2019 (Supreme Court)

In this case, the Supreme Court held that held that the Office of the Chief Justice of India is a ‘public authority’ under the Right to Information Act, 2005 (RTI Act) – enabling the disclosure of information such as the Judges personal assets. In this case, the Court discussed the privacy impact of such disclosure extensively, including in the context of Puttaswamy. The Court found that the right to information and right to privacy are at an equal footing, and that there was no requirement to take a view that one right trumps the other. The Court stated that the proportionality test laid down in Puttaswamy should be used by the Information Officer to balance the two rights, and also found that the RTI Act itself has sufficient procedural safeguards built in, to meet this test in the case of disclosure of personal information.

X vs. State of Uttarakhand and Ors., 2019 (Uttarakhand High Court)

In this case the petitioner claimed that she had identified herself as female, and undergone gender reassignment surgery and therefore should be treated as a female. She was not recognized as female by the State. While the Court primarily relied upon the judgment of the Supreme Court in NALSA v. Union of India, it also referred to the judgment in Puttaswamy. Specifically, the judgment refers to the finding in Puttaswamy that the right to privacy is not necessarily limited to any one provision in the chapter on fundamental rights, but rather intersecting rights. The intersection of Article 15 with Article 21 locates a constitutional right to privacy as an expression of individual autonomy, dignity and identity. The Court also referred to the Supreme Court’s judgment in Navtej Singh Johar v. Union of India, and on the basis of all three judgments, upheld the right of the petitioner to be recognized as a female.

(This judgment may need to be re-examined in light of the The Transgender Persons (Protection of Rights) Bill, 2019.)

Indian Hotel and Restaurant Association (AHAR) and Ors. vs. The State of Maharashtra and Ors., 2019 (Supreme Court)

This case dealt with the validity of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016. The Supreme Court held that the applications for grant of licence should be considered more objectively and with open mind so that there is no complete ban on staging dance performances at designated places prescribed in the Act. Several of the conditions under the Act were challenged, including one that required the installation of CCTV cameras in the rooms where dances were to be performed. Here, the Court relied on Puttaswamy (and the discussion on unpopular privacy laws) to set aside the condition requiring such installation of CCTV cameras.

(The Puttaswamy case has been mentioned in at least 102 High Court and Supreme Court judgments since 2017.)

[September 30-October 7] CCG’s Week in Review Curated News in Information Law and Policy

Huawei finds support from Indian telcos in the 5G rollout as PayPal withdrew from Facebook’s Libra cryptocurrency project; Foreign Portfolio Investors moved MeitY against in the Data Protection Bill; the CJEU rules against Facebook in case relating to takedown of content globally; and Karnataka joins list of states considering implementing NRC to remove illegal immigrants – presenting this week’s most important developments in law, tech and national security.

Digital India

  • [Sep 30] Why the imminent global economic slowdown is a growth opportunity for Indian IT services firms, Tech Circle report.
  • [Sep 30] Norms tightened for IT items procurement for schools, The Hindu report.
  • [Oct 1] Govt runs full throttle towards AI, but tech giants want to upskill bureaucrats first, Analytics India Magazine report.
  • [Oct 3] – presenting this week’s most important developments in law, tech and national security. MeitY launches smart-board for effective monitoring of the key programmes, The Economic Times report.
  • [Oct 3] “Use human not artificial intelligence…” to keep a tab on illegal constructions: Court to Mumbai civic body, NDTV report.
  • [Oct 3] India took 3 big productivity leaps: Nilekani, Livemint report.
  • [Oct 4] MeitY to push for more sops to lure electronic makers, The Economic Times report; Inc42 report.
  • [Oct 4] Core philosophy of Digital India embedded in Gandhian values: Ravi Shankar Prasad, Financial Express report.
  • [Oct 4] How can India leverage its data footprint? Experts weigh in at the India Economic Summit, Quartz report.
  • [Oct 4] Indians think jobs would be easy to find despite automation: WEF, Tech Circle report.
  • [Oct 4] Telangana govt adopts new framework to use drones for last-mile delivery, The Economic Times report.
  • [Oct 5] Want to see ‘Assembled in India’ on an iPhone: Ravi Shankar Prasad, The Economic Times report.
  • [Oct 6] Home market gets attractive for India’s IT giants, The Economic Times report.

Internet Governance

  • [Oct 2] India Govt requests maximum social media content takedowns in the world, Inc42 report; Tech Circle report.
  • [Oct 3] Facebook can be forced to delete defamatory content worldwide, top EU court rules, Politico EU report.
  • [Oct 4] EU ruling may spell trouble for Facebook in India, The Economic Times report.
  • [Oct 4] TikTok, TikTok… the clock is ticking on the question whether ByteDance pays its content creators, ET Tech report.
  • [Oct 6] Why data localization triggers a heated debate, The Economic Times report.
  • [Oct 7] Sensitive Indian govt data must be stored locally, Outlook report.

Data Protection and Privacy

  • [Sep 30] FPIs move MeitY against data bill, seek exemption, ET markets report, Inc42 report; Financial Express report.
  • [Oct 1] United States: CCPA exception approved by California legislature, Mondaq.com report.
  • [Oct 1] Privacy is gone, what we need is regulation, says Infosys Kris Gopalakrishnana, News18 report.
  • [Oct 1] Europe’s top court says active consent is needed for tracking cookies, Tech Crunch report.
  • [Oct 3] Turkey fines Facebook $282,000 over data privacy breach, Deccan Herald report.

Free Speech

  • [Oct 1] Singapore’s ‘fake news’ law to come into force Wednesday, but rights group worry it could stifle free speech, The Japan Times report.
  • [Oct 2] Minister says Singapore’s fake news law is about ‘enabling’ free speech, CNBC report.
  • [Oct 3] Hong Kong protests: Authorities to announce face mask ban, BBC News report.
  • [Oct 3] ECHR: Holocaust denial is not protected free speech, ASIL brief.
  • [Oct 4] FIR against Mani Ratnam, Adoor and 47 others who wrote to Modi on communal violence, The News Minute report; Times Now report.
  • [Oct 5] UN asks Malaysia to repeal laws curbing freedom of speech, The New Indian Express report.
  • [Oct 6] When will our varsities get freedom of expression: PC, Deccan Herald report.
  • [Oct 6] UK Government to make university students sign contracts limiting speech and behavior, The Times report.
  • [Oct 7] FIR on Adoor and others condemned, The Telegraph report.

Aadhaar, Digital IDs

  • [Sep 30] Plea in SC seeking linking of social media accounts with Aadhaar to check fake news, The Economic Times report.
  • [Oct 1] Why another omnibus national ID card?, The Hindu Business Line report.
  • [Oct 2] ‘Kenyan court process better than SC’s approach to Aadhaar challenge’: V Anand, who testified against biometric project, LiveLaw report.
  • [Oct 3] Why Aadhaar is a stumbling block in Modi govt’s flagship maternity scheme, The Print report.
  • [Oct 4] Parliament panel to review Aadhaar authority functioning, data security, NDTV report.
  • [Oct 5] Could Aahdaar linking stop GST frauds?, Financial Express report.
  • [Oct 6] Call for liquor sale-Aadhaar linking, The New Indian Express report.

Digital Payments, Fintech

  • [Oct 7] Vision cash-lite: A billion UPI transactions is not enough, Financial Express report.

Cryptocurrencies

  • [Oct 1] US SEC fines crypto company Block.one for unregistered ICO, Medianama report.
  • [Oct 1] South Korean Court issues landmark decision on crypto exchange hacking, Coin Desk report.
  • [Oct 2] The world’s most used cryptocurrency isn’t bitcoin, ET Markets report.
  • [Oct 2] Offline transactions: the final frontier for global crypto adoption, Coin Telegraph report.
  • [Oct 3] Betting on bitcoin prices may soon be deemed illegal gambling, The Economist report.
  • [Oct 3] Japan’s financial regulator issues draft guidelines for funds investing in crypto, Coin Desk report.
  • [Oct 3] Hackers launch widespread botnet attack on crypto wallets using cheap Russian malware, Coin Desk report.
  • [Oct 4] State-backed crypto exchange in Venezuela launches new crypto debit cards, Decrypt report.
  • [Oct 4] PayPal withdraws from Facebook-led Libra crypto project, Coin Desk report.
  • [Oct 5] Russia regulates digital rights, advances other crypto-related bills, Bitcoin.com report.
  • [Oct 5] Hong Kong regulates crypto funds, Decrypt report.

Cybersecurity and Cybercrime

  • [Sep 30] Legit-looking iPhone lightening cables that hack you will be mass produced and sold, Vice report.
  • [Sep 30] Blackberry launches new cybersecurity development labs, Infosecurity Mgazine report.
  • [Oct 1] Cybersecurity experts warn that these 7 emerging technologies will make it easier for hackers to do their jobs, Business Insider report.
  • [Oct 1] US government confirms new aircraft cybersecurity move amid terrorism fears, Forbes report.
  • [Oct 2] ASEAN unites to fight back on cyber crime, GovInsider report; Asia One report.
  • [Oct 2] Adopting AI: the new cybersecurity playbook, TechRadar Pro report.
  • [Oct 4] US-UK Data Access Agreement, signed on Oct 3, is an executive agreement under the CLOUD Act, Medianama report.
  • [Oct 4] The lack of cybersecurity talent is ‘a  national security threat,’ says DHS official, Tech Crunch report.
  • [Oct 4] Millions of Android phones are vulnerable to Israeli surveillance dealer attack, Forbes report; NDTV report.
  • [Oct 4] IoT devices, cloud solutions soft target for cybercriminals: Symantec, Tech Circle report.
  • [Oct 6] 7 cybersecurity threats that can sneak up on you, Wired report.
  • [Oct 6] No one could prevent another ‘WannaCry-style’ attack, says DHS official, Tech Crunch report.
  • [Oct 7] Indian firms rely more on automation for cybersecurity: Report, ET Tech report.

Cyberwarfare

  • [Oct 2] New ASEAN committee to implement norms for countries behaviour in cyberspace, CNA report.

Tech and National Security

  • [Sep 30] IAF ready for Balakot-type strike, says new chief Bhadauria, The Hindu report; Times of India report.
  • [Sep 30] Naval variant of LCA Tejas achieves another milestone during its test flight, Livemint report.
  • [Sep 30] SAAB wants to offer Gripen at half of Rafale cost, full tech transfer, The Print report.
  • [Sep 30] Rajnath harps on ‘second strike capability’, The Shillong Times report.
  • [Oct 1] EAM Jaishankar defends India’s S-400 missile system purchase from Russia as US sanctions threat, International Business Times report.
  • [Oct 1] SC for balance between liberty, national security, Hindustan Times report.
  • [Oct 2] Startups have it easy for defence deals up to Rs. 150 cr, ET Rise report, Swarajya Magazine report.
  • [Oct 3] Huawei-wary US puts more pressure on India, offers alternatives to data localization, The Economic Times report.
  • [Oct 4] India-Russia missile deal: What is CAATSA law and its implications?, Jagran Josh report.
  • [Oct 4] Army inducts Israeli ‘tank killers’ till DRDO develops new ones, Defence Aviation post report.
  • [Oct 4] China, Russia deepen technological ties, Defense One report.
  • [Oct 4] Will not be afraid of taking decisions for fear of attracting corruption complaints: Rajnath Singh, New Indian Express report.
  • [Oct 4] At conclave with naval chiefs of 10 countries, NSA Ajit Doval floats an idea, Hindustan Times report.
  • [Oct 6] Pathankot airbase to finally get enhanced security, The Economic Times report.
  • [Oct 6] rafale with Meteor and Scalp missiles will give India unrivalled combat capability: MBDA, The Economic Times report.
  • [Oct 7] India, Bangladesh sign MoU for setting up a coastal surveillance radar in Bangladesh, The Economic Times report; Decaan Herald report.
  • [Oct 7] Indian operated T-90 tanks to become Russian army’s main battle tank, EurAsian Times report.
  • [Oct 7] IAF’s Sukhois to get more advanced avionics, radar, Defence Aviation post report.

Tech and Law Enforcement

  • [Sep 30] TMC MP Mahua Mitra wants to be impleaded in the WhatsApp traceability case, Medianama report; The Economic Times report.
  • [Oct 1] Role of GIS and emerging technologies in crime detection and prevention, Geospatial World.net report.
  • [Oct 2] TRAI to take more time on OTT norms; lawful interception, security issue now in focus, The Economic Times report.
  • [Oct 2[ China invents super surveillance camera that can spot someone from a crowd of thousands, The Independent report.
  • [Oct 4] ‘Don’t introduce end-to-end encryption,’ UK, US and Australia ask Facebook in an open letter, Medianama report.
  • [Oct 4] Battling new-age cyber threats: Kerala Police leads the way, The Week report.
  • [Oct 7] India govt bid to WhatsApp decryption gets push as UK,US, Australia rally support, Entrackr report.

Tech and Elections

  • [Oct 1] WhatsApp was extensively exploited during 2019 elections in India: Report, Firstpost report.
  • [Oct 3] A national security problem without a parallel in American democracy, Defense One report.

Internal Security: J&K

  • [Sep 30] BDC polls across Jammu, Kashmir, Ladakh on Oct 24, The Economic Times report.
  • [Sep 30] India ‘invaded and occupied Kashmir, says Malaysian PM at UN General Assembly, The Hindu report.
  • [Sep 30] J&K police stations to have CCTV camera surveillance, News18 report.
  • [Oct 1] 5 judge Supreme court bench to hear multiple pleas on Article 370, Kashmir lockdown today, India Today report.
  • [Oct 1] India’s stand clear on Kashmir: won’t accept third-party mediation, India Today report.
  • [Oct 1] J&K directs officials to ensure all schools reopen by Thursday, NDTV report.
  • [Oct 2]] ‘Depressed, frightened’: Minors held in Kashmir crackdown, Al Jazeera report.
  • [Oct 3] J&K: When the counting of the dead came to a halt, The Hindu report.
  • [Oct 3] High schools open in Kashmir, students missing, The Economic Times report.
  • [Oct 3] Jaishanakar reiterates India’s claim over Pakistan-occupied Kashmir, The Hindu report.
  • [Oct 3] Normalcy prevails in Jammu and Kashmir, DD News report.
  • [Oct 3] Kashmiri leaders will be released one by one, India Today report.
  • [Oct 4] India slams Turkey, Malaysia remarks on J&K, The Hindu report.
  • [Oct 5] India’s clampdown hits Kashmir’s Silicon Valley, The Economic Times report.
  • [Oct 5] Traffic cop among 14 injured in grenade attack in South Kashmir, NDTV report; The Economic Times report.
  • [Oct 6] Kashmir situation normal, people happy with Article 370 abrogation: Prkash Javadekar, Times of India report.
  • [Oct 7] Kashmir residents say police forcibly taking over their homes for CRPF troops, Huffpost India report.

Internal Security: Northeast/ NRC

  • [Sep 30] Giving total control of Assam Rifles to MHA will adversely impact vigil: Army to Govt, The Economic Times report.
  • [Sep 30] NRC list impact: Assam’s foreigner tribunals to have 1,600 on contract, The Economic Times report.
  • [Sep 30] Assam NRC: Case against Wipro for rule violation, The Hindu report; News18 report; Scroll.in report.
  • [Sep 30] Hindu outfits demand NRC in Karnataka, Deccan Chronicle report; The Hindustan Times report.
  • [Oct 1] Centre extends AFPSA in three districts of Arunachal Pradesh for six months, ANI News report.
  • [Oct 1] Assam’s NRC: law schools launch legal aid clinic for excluded people, The Hindu report; Times of India report; The Wire report.
  • [Oct 1] Amit Shah in Kolkata: NRC to be implemented in West Bengal, infiltrators will be evicted, The Economic Times report.
  • [Oct 1] US Congress panel to focus on Kashmir, Assam, NRC in hearing on human rights in South Asia, News18 report.
  • [Oct 1] NRC must for national security; will be implemented: Amit Shah, The Hindu Business Line report.
  • [Oct 2] Bengali Hindu women not on NRC pin their hope on promise of another list, citizenship bill, The Print report.
  • [Oct 3] Citizenship Amendment Bill has become necessity for those left out of NRC: Assam BJP president Ranjeet Das, The Economic Times report.
  • [Oct 3] BJP govt in Karnataka mulling NRC to identify illegal migrants, The Economic Times report.
  • [Oct 3] Explained: Why Amit Shah wants to amend the Citizenship Act before undertaking countrywide NRC, The Indian Express report.
  • [Oct 4] Duplicating NPR, NRC to sharpen polarization: CPM, Deccan Herald report.
  • [Oct 5] We were told NRC India’s internal issue: Bangladesh, Livemint report.
  • [Oct 6] Prasanna calls NRC ‘unjust law’, The New Indian Express report.

National Security Institutions

  • [Sep 30] CRPF ‘denied’ ration cash: Govt must stop ‘second-class’ treatment. The Quint report.
  • [Oct 1] Army calls out ‘prejudiced’ foreign report on ‘torture’, refutes claim, Republic World report.
  • [Oct 2] India has no extraterritorial ambition, will fulfill regional and global security obligations: Bipin Rawat, The Economic Times report.

More on Huawei, 5G

  • [Sep 30] Norway open to Huawei supplying 5G equipment, Forbes report.
  • [Sep 30] Airtel deploys 100 hops of Huawei’s 5G technology, The Economic Times report.
  • [Oct 1] America’s answer to Huawei, Foreign Policy report; Tech Circle report.
  • [Oct 1] Huawei buys access to UK innovation with Oxford stake, Financial Times report.
  • [Oct 3] India to take bilateral approach on issues faced by other countries with China: Jaishankar, The Hindu report.
  • [Oct 4] Bharti Chairman Sunil Mittal says India should allow Huawei in 5G, The Economic Times report
  • [Oct 6] 5G rollout: Huawei finds support from telecom industry, Financial Express report.

Emerging Tech: AI, Facial Recognition

  • [Sep 30] Bengaluru set to roll out AI-based traffic solution at all signals, Entrackr report.
  • [Sep 1] AI is being used to diagnose disease and design new drugs, Forbes report.
  • [Oct 1] Only 10 jobs created for every 100 jobs taken away by AI, The Economic Times report.
  • [Oct 2]Emerging tech is helping companies grow revenues 2x: report, ET Tech report.
  • [Oct 2] Google using dubious tactics to target people with ‘darker skin’ in facial recognition project: sources, Daily News report.
  • [Oct 2] Three problems posed by deepfakes that technology won’t solve, MIT Technology Review report.
  • [Oct 3] Getting a new mobile number in China will involve a facial recognition test, Quartz report.
  • [Oct 4] Google contractors targeting homeless people, college students to collect their facial recognition data: Report, Medianama report.
  • [Oct 4] More jobs will be created than are lost from the IA revolution: WEF AI Head, Livemint report.
  • [Oct 6] IIT-Guwahati develops AI-based tool for electric vehicle motor, Livemint report.
  • [Oct 7] Even if China misuses AI tech, Satya Nadella thinks blocking China’s AI research is a bad idea, India Times report.

Big Tech

  • [Oct 3] Dial P for privacy: Google has three new features for users, Times of India report.

Opinions and Analyses

  • [Sep 26] Richard Stengel, Time, We’re in the middle of a global disinformation war. Here’s what we need to do to win.
  • [Sep 29] Ilker Koksal, Forbes, The shift toward decentralized finance: Why are financial firms turning to crypto?
  • [Sep 30] Nistula Hebbar, The Hindu, Govt. views grassroots development in Kashmir as biggest hope for peace.
  • [Sep 30] Simone McCarthy, South China Morning Post, Could China’s strict cyber controls gain international acceptance?
  • [Sep 30] Nele Achten, Lawfare blog, New UN Debate on cybersecurity in the context of international security.
  • [Sep 30[ Dexter Fergie, Defense One, How ‘national security’ took over America.
  • [Sep 30] Bonnie Girard, The Diplomat, A firsrhand account of Huawei’s PR drive.
  • [Oct 1] The Economic Times, Rafale: Past tense but furture perfect.
  • [Oct 1] Simon Chandler, Forbes, AI has become a tool for classifying and ranking people.
  • [Oct 2] Ajay Batra, Business World, Rethink India! – MMRCA, ESDM & Data Privacy Policy.
  • [Oct 2] Carisa Nietsche, National Interest, Why Europe won’t combat Huawei’s Trojan tech.
  • [Oct 3] Aruna Sharma, Financial Express, The digital way: growth with welfare.
  • [Oct 3] Alok Prasanna Kumar, Medianama, When it comes to Netflix, the Government of India has no chill.
  • [Oct 3] Fredrik Bussler, Forbes, Why we need crypto for good.
  • [Oct 3] Panos Mourdoukoutas, Forbes, India changed the game in Kashmir – Now what?
  • [Oct 3] Grant Wyeth, The Diplomat, The NRC and India’s unfinished partition.
  • [Oct 3] Zak Doffman, Forbes, Is Huawei’s worst Google nightmare coming true?
  • [Oct 4] Oren Yunger, Tech Crunch, Cybersecurity is a bubble, but it’s not ready to burst.
  • [Oct 4] Minakshi Buragohain, Indian Express, NRS: Supporters and opposers must engage each other with empathy.
  • [Oct 4] Frank Ready, Law.com, 27 countries agreed on ‘acceptable’ cyberspace behavior. Now comes the hard part.
  • [Oct 4] Samir Saran, World economic Forum (blog), 3 reasons why data is not the new oil and why this matters to India.
  • [Oct 4] Andrew Marantz, The New York Times, Free Speech is killing us.
  • [Oct 4] Financial Times editorial, ECJ ruling risks for freedom of speech online.
  • [Oct 4] George Kamis, GCN, Digital transformation requires a modern approach to cybersecurity.
  • [Oct 4] Naomi Xu Elegant and Grady McGregor, Fortune, Hong King’s mask ban pits anonymity against the surveillance state.
  • [Oct 4] Prashanth Parameswaran, The Diplomat, What’s behind the new US-ASEAN cyber dialogue?
  • [Oct 5] Huong Le Thu, The Strategist, Cybersecurity and geopolitics: why Southeast Asia is wary of a Huawei ban.
  • [Oct 5] Hannah Devlin, The Guardian, We are hurtling towards a surveillance state: the rise of facial recognition technology.
  • [Oct 5] PV Navaneethakrishnan, The Hindu Why no takers? (for ME/M.Tech programmes).
  • [Oct 6] Aakar Patel, Times of India blog, Cases against PC, letter-writing celebs show liberties are at risk.
  • [Oct 6] Suhasini Haidar, The Hindu, Explained: How ill purchases from Russia affect India-US ties?
  • [Oct 6] Sumit Chakraberty, Livemint, Evolution of business models in the era of privacy by design.
  • [Oct 6] Spy’s Eye, Outlook, Insider threat management.
  • [Oct 6] Roger Marshall, Deccan Herald, Big oil, Big Data and the shape of water.
  • [Oct 6] Neil Chatterjee, Fortune, The power grid is evolving. Cybersecurity  must too.
  • [Oct 7] Scott W Pink, Modaq.com, EU: What is GDPR and CCPA and how does it impact blockchain?
  • [Oct 7] GN Devy, The Telegraph, Has India slid into an irreversible Talibanization of the mind?
  • [Oct 7] Susan Ariel Aaronson, South China Morning Post, The Trump administration’s approach to AI is not that smart: it’s about cooperation, not domination.

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.

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)

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).