India: The Personal Data Protection Bill, 2018

With the advancement in technology, personal data created and stored in hard disk cloud, database, memory disk, internet, computer, etc., continues to grow at limitless rates, thereby leading the data to enter the Public Domain. This data is then subjected to maxim threats, which are classified into two categories - external threats to information security such as threats from hackers, network security threats, denial-of- service attacks, software threats, etc. and internal threats which are often associated with misuse or misrepresentation of information, data breaches and leaks.

The term Data Protection means legal control over access to and use of data stored. In other words, it refers to a series of continuous and repetitive processes, sound policies and privacy laws to reduce intrusion in one's privacy.

On August 24, 2017, a nine-judgebenchof the Supreme Court, in the landmark case of Justice K.S. Puttaswamy and Anr. v. Union of India and Ors22, has ruled "Privacy" as a Fundamental Right essential to life and liberty, and thereby, it has been put under the ambit of Article 21 of the Indian Constitution. The bench comprised Chief Justice Khehar and Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton Nariman, A.M. Sapre, D.Y. Chandrachud, Sanjay Kishan Kaul and S. Abdul Nazeer.

The Judgement was delivered by Justice D.Y. Chandrachud, wherein he stated "Ours is an age of information. Information is knowledge. The old adage that 'knowledge is power' has stark implications for the position of the individual where data is ubiquitous, an all- encompassing presence. The internet has become all pervasive as individuals spend more and more time online each day of their lives... the internet is used to carry on business and to buy goods and services."

It was further stated, "Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state."

In order to have an effective and efficient data protection mechanism in India, Justice BN Srikrishna Committee was formed, which has submitted the draft bill on personal data protection to the Ministry of Electronic and Information Technology on July 27, 2018. As per the draft bill, "Personal Data" means 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, or any combination of such features, or any combination of such features with any other information.

Government the need to examine and put into place a robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state." In order to have an effective and efficient data protection mechanism in India, Justice BN Srikrishna Committee was formed, which has submitted the draft bill on personal data protection to the Ministry of Electronic and Information Technology on July 27, 2018. As per the draft bill, "Personal Data" means 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, or any combination of such features, or any combination of such features with any other information.

1. The draft bill aims to establish the following :

  • Fiduciary relationship and obligations on the part of the fiduciaries
  • The manner in which personal and sensitive data is to be processed
  • Establish safeguards for transparency and accountability
  • Establishment of Data Protection Authority Imposition of penalties

2. The draft bill has introduced concepts which are the essence of data protection , such as:

  • Data fiduciary: Any person, including the State, a company, any juristic entity or any individual who alone or in conjunction with others determines the purpose and means of processing of personal data.
  • Data principal: Refers to the natural person, such as an individual, a Hindu undivided family, a company, a firm, the state, an association of persons or a body of individuals and every artificial judicial person.
  • Data processor: Means any person, including the State, a company, any juristic entity or any individual who processes personal data on behalf of a data fiduciary, but does not include an employee of the data fiduciary.

3. The key aspects of the Personal Data Protection Bill are:

Data protection obligations

  • The bill imposes duty on the person processing the personal data of data principal to process such personal data in a fair and reasonable manner that respects the privacy of the data principal. Collection of personal data to be limited to the purpose of processing. The data fiduciary shall be responsible for complying with the obligations in respect of any processing undertaken by it or on its behalf.

Grounds for processing personal data

The Bill makes consent an essential part of processing data. No data shall be processed without the consent of the data principal. However, the data shall be processed without consent only on certain grounds specified in the draft bill, such as:

  • If processing is necessary for any function of Parliament or any State Legislature or for any service or benefit to the data principal.
  • For compliance with any order or judgement of any Court or Tribunal in India.
  • To respond to any medical emergency involving a threat to the life, a severe threat to the health or outbreak of disease.
  • Recruitment or termination of employment of a data principal by data fiduciary.
  • Prevention and detection of any unlawful activity, mergers and acquisition, credit scoring, recovery of debt and whistle blowing.

Grounds for processing sensitive personal Data

The term 'Sensitive Personal Data' includes passwords, financial data, health data, biometric data, genetic data, and data on caste or tribe or religious and political beliefs. The sensitive personal data may be processed on the basis of explicit consent for:

  • Any function of Parliament or any State Legislature,
  • For any service or benefit to the data principal.
  • For compliance with any order or judgement of any Court or Tribunal in India.
  • To respond to any medical emergency involving a threat to the life, a severe threat to the health or outbreak of disease.

Rights of Data Principal

The Data Principal are granted certain rights such as:

  • Right to confirmation whether the data fiduciary is processing or has processed the personal data and access to the data.
  • Right to correction of inaccurate, misleading or incomplete personal data.
  • Right to data portability.
  • Right to be forgotten, i.e., the right to restrict or prevent continuing disclosure of personal data by a data fiduciary.

Transfer of personal data outside India

Personal data other than those categorized as sensitive personal data may be transferred outside the territory of India under the following conditions:

  • Transfer is made subject to standard contractual clauses or inter-group schemes that have been approved by the Authority.
  • The Central Government has prescribed that transfers to a particular country or sector within a country is permissible.
  • The Authority approves a particular transfer or set of transfers as permissible.
  • In furtherance to the above, the data principal has consented to such transfer of personal data.

Exemptions

Processing of personal data in the interests of prevention, detection, investigation and prosecution of any offence or any other contravention of law be permitted, provided it is authorized by a law made by Parliament and State Legislature.

Conclusion

The Ministry of Electronics and Information Technology has announced that before the Draft Bill is passed by the Parliament, it will undergo intensive parliamentary consultation. The Ministry solicits comments from General Public on the Draft Bill in order to ensure that it is indeed the need of the hour and beneficial to the interests of the individuals. The Draft Bill, when enacted will give way to new data privacy regime, which is based on trust and efficient mechanism between the Data Fiduciary and Data Principal. The Draft Bill imposes series of obligations on the State and makes it accountable for processing the personal data of an individual, thereby protecting both - the personal data and the constitutionally guaranteed right to privacy.

Footnote

22 WRIT PETITION (CIVIL) NO 494 OF 2012

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions