India: Getting Ready To Combat With Data Breach: Kal, Aaj Aur Kal

Last Updated: 24 July 2019
Article by S.S. Rana & Co. Advocates

The onset of digitalization by the proliferation of internet has permitted people to explore the cyber-space for meeting various requirements of day to day life. The amount of data that is shared across internet today is beyond imagination. From ordering a cab to ordering food to booking tickets for travel to shopping to communicating with friends to making new relationships everything can happen with just a tap of finger and sharing of information.

However, one storm that is threatening the digital space is data breach. The World Economic Forum 2019 global risk report1 has named cyber-attacks and data breaches as the fourth and fifth most serious risks facing the world today. It's the second year in a row in which these threats have been present in the top five list of risks.2 Past few years can easily be considered as the year of data breaches as many global websites complained of data breach. In the era of digitization data breach is happening at such a level, that keeping a count of such instances is almost impossible. Therefore, it is important to know the current safeguards against data breach and also what does future holds to fill in the gaps of current safeguards.

Current Status of Data Protection: In Case of Data Breach

Section 43 A of The Information Technology Act, 2008, inserted vide Information Technology Amendment Act, 2008, is the current recourse we have in case of a data breach. Currently, this is the only section that deals with Data Protection in detail. The Section provides for imposition of liability on a body corporate as further defined in the Section, who is involved in dealing with sensitive personal data, in case there is a breach of the same due to lack of implementation of preventive measure on its behalf. A maximum liability of Rs. 5 Crore has been mentioned in the Section.

The Future of Data Protection: Steps to be Taken to Deal with Data Breach under Draft Personal Data Protection Bill, 2019

With the intent of being a jurisdiction having a comprehensive Data Protection Law to dedicatedly deal with the instances of data breach, the Draft Personal Data Protection Bill, 2018 was released in 2018.

In case of a data breach the first question that comes to mind is that, who will be accountable for such a breach. The answer to this question has been glimpsed in Section 11 of the Draft Personal Data Protection Bill, 2018 (hereinafter referred to as "the Bill"), the Section provides,

"11. Accountability. — (1) The data fiduciary shall be responsible for complying with all obligations set out in this Act in respect of any processing undertaken by it or on its behalf.

(2) The data fiduciary should be able to demonstrate that any processing undertaken by it or on its behalf is in accordance with the provisions of this Act."

Thus, if there is any contravention to the provisions of this Bill, then the Data Fiduciary will be held liable. The duties corresponding to this have been mentioned throughout the various provisions of the Bill, however Section 31 (1) provides that it will be the duty of the Data Fiduciary to establish safeguard measures to for:

(a) use of methods such as de-identification and encryption;

(b) steps necessary to protect the integrity of personal data; and

(c) steps necessary to prevent misuse, unauthorized access to, modification, disclosure or destruction of personal data.

Section 32 of the Draft Personal Data Protection Bill, 2018 provides the steps that would be mandatory for the Data Fiduciary and the Data Processors to take, in case a data breach takes place. A closer study of the Section throws light on the fact that a great duty will be imposed upon the Data Fiduciary, their liability of the duty can be basically divided into three folds,

1. First and foremost duty of the Data Fiduciary, in case of a personal data breach, is to inform the Authority as specified in the Bill, this notification to the Authority must contain the nature of the data breach, number of Data Principals affected, possible consequences of the breach and necessary remedial measures to be taken. This notification should be made to the Authority as soon as possible, however in the case where it is not practicable to provide the information instantly, such information should be furnished to the Authority after the compilation is complete and without any unnecessary delay.

2. The second duty that has been imposed upon the Data Fiduciary is that, they must inform the Data Principals of the data breach, if the same has been ordered by the Authority after their assessment of the breach.

3. The third fold of their duty is to take remedial measure that need to be implemented on their behalf to mitigate the damages that have occurred due to the data breach, and to take measure to prevent the same from happening in the future.

Suggestive Measure that can be Employed by Companies in Case of Data Breach

Some measure that can be taken by a company in case a data breach occurs are as follows:

1. The first and foremost step that should be taken is to determine the extent of the data breach. This would entail an introspective study of the data of the firm to enlist what all data has been stolen, what was the nature of this data and how sensitive was the information that was stolen.

2. The company must inform the relevant authorities as soon as practicable about the said breach, a delay in reporting the breach can be very injurious to the company and may entail an increased liability.

3. In cases where it is applicable or required, the affected persons, i.e., the people whose data has been breached must also be informed.

4. In case the company stores information about foreign citizens, it is crucial to consider the domestic laws of those citizens if their data has been breached.

5. The next to be taken by the company should be to conduct a security audit, to flush out what was the cause of such a security breach, and what are the lacks in the current security regime of the company which have facilitated such an attack, this would also include identifying and implementing any remedial measure that need to be taken by the company to reduce the damage.

6. The final step should be updating the security of the company, to address all the bugs and to have a framework that ensure such an attack doesn't happen again. It should be noted that the security framework of a company should be regularly monitored and updated so as to prevent any breaches.

Case in point: Facebook data breach

Introduction

Recently a data breach that left the whole globe in shock was the Facebook data breach. It was estimated that about 50 Million accounts were affected by the said breach. This was a first of its kind attack in the 14 years history of Facebook, where the attackers were able to have access to the complete accounts of the users, they could see everything that was present in the accounts of the user, including all the third party applications that were linked to Facebook, such as Instagram. Spotify, Tinder, etc. However, it has not been ascertained whether the attackers did or did not have access to the personal messages of the users.

Series of events

The data breach of Facebook occurred when the "View as" feature of the Facebook, which enables a user to see this profile as it would appear to another user viewing it, was hijacked. The upload video option on Facebook that was introduced to enable easy uploading of birthday videos was converted to "view as" option. When this view as option was clicked, it generated an access token, which was used to gain access to the accounts of the users.

As soon as this bug was detected, steps were taken by Facebook, but till then it was too late. Around 90 million people were logged out of their accounts in order to mitigate the damage. 50 million were the ones who were affected and 40 million were the ones who were anticipated to be affected.

The hackers that were involved in the said data breach have not yet been identified.

Legal implications

The widespread network of Facebook has attracted liability from various jurisdiction. A probe has been initiated by the European Union Authorities, into the said data breach. It is being anticipated that there is a possibility that Facebook might be face a fine of 1.63 Billion Euros.3

Case in point: Instagram Data Leak

Nearly 49 Million Instagram accounts were affected by a data leak that took place in 2019, a lot of Instagram influencers, such as food bloggers, lifestyle bloggers were affected by the same. Various information of the users such as their biodata, profile picture, number of followers, location by city and country, contact information such as e-mail i.ds and phone numbers, were leaked. The said information was available on Amazon Web Service, without any passwords.

The investigation led to a Mumbai based company called Chtrbox, which provides the information as to how much a person should be paid to advertise on their Instagram page, based on their number of followers, engagement, reach, likes and the shares they have. Subsequent to these events, Chtrbox took their database offline.

Investigation is still being conducted on the said data leak, as many users who had never been in contact with Chatterbox also alleged that their data had been leaked. 4

Footnotes

1 http://www3.weforum.org/docs/WEF_Global_Risks_Report_2019.pdf

2 https://www.cio.com/article/3293060/the-biggest-data-breaches-in-the-asean-region.html

3 https://www.packetlabs.net/facebook-data-dollars-tokens-trust/

4 https://www.cisomag.com/instagram-data-breach-49-million-users-sensitive-data-exposed-online/

For further information please contact at S.S Rana & Co. email: info@ssrana.in or call at (+91- 11 4012 3000). Our website can be accessed at www.ssrana.in

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.

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