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India's Joint Parliamentary Committee Announces Recommended Changes to Privacy Bill

Last month, the Indian Joint Parliamentary Committee submitted its report on the 2019 Personal Data Protection Bill after two years of consideration, research, and analysis. The bill, while not a certainty but likely to pass, would replace what some consider to be archaic data protection regulations. Although not finalized, the biggest obstacle if implemented as envisioned is strict data localization. India has been in the group of countries legislating data privacy for decades, culminating in the 2021 JPC report submission. Here’s a look at the history of data privacy legislation in India.

 

The History of Data Privacy Legislation in India

  • 2000 – Information Technology Act is passed by parliament and signed by President K.R. Narayanan addressing electronic documents, e-signatures, and record authentication.
  • 2017 – The Indian Supreme Court hears Justice KS Puttaswamy vs Union of Indiaand passes a historic judgment affirming the constitutional right to privacy.
  • 2019 – Introduction of the Personal Data Protection Bill and immediately sent to the JPC to be examined.
  • 2021 – JPC submits report on PDP to Indian Parliament revisions.

 

The long-awaited report submitted December 16, 2021 by the JPC has provided necessary clarification and modifications that seek to enhance the syntax and governance of the bill.

 

The recommended amendments are as follows:

  • Scope – The bill has a proposed name change to Data Protection Bill and will cover both personal and non-personal data which is unusual as distinction of data type can be difficult when managing mass amounts of data. Clauses also address the deceased and transfer of minor rights (see Clause 16 below).
  • Implementation Timeline – The report outlines a timeline with a 24-month implementation period for data processors to comply.
  • Definitions – The following terms have been defined or revised: consent manager, data auditor, data breach, data fiduciary, data processor, data protection officer, harm, and non-personal data.
  • Clauses 13 & 14 – These clauses apply to consent of personal data processing for employment and legitimate interest, marrying the interests of both the data principal and data fiduciary.
  • Clause 16 – Entities dealing with the data of children must register with the DPA and are required to communicate with the subject 3 months prior to adult age to regain consent and “must continue providing the services to the child unless the child withdraws consent.”

 

The implementation timeline for the Data Protection Bill is still unknown but will likely be a phased approach. Like California, there is discussion of an oversight committee called the Data Protection Authority of India that would supervise compliance with the proposed law. With the notable amendments to the bill, it’s unlikely we’ll see this come to fruition quickly. Not unlike most proposed privacy legislation, it has been met with dissent and opposition and will have to make its way through the courts of India before becoming law.

 

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Does the GDPR apply to my company?

The General Data Protection Regulation (GDPR) is one of the most robust individual privacy rights frameworks enacted to date. The regulation went into effect on May 25, 2018 and covers any organization that deals with the personal data of a European citizen. It not only defines privacy and how to evaluate whether an organization is properly protecting it, but also sets out consequences with substantial financial penalties for non-compliance.

 

Charles Morgan, Partner and Technology Practice Lead at McCarthy Tetrault recently presented at a Canadian seminar on GDPR preparedness. According to Morgan, “The GDPR applies not only to EU-established organizations that process personal data, but also to non-EU established organizations that target or monitor EU data subjects in one of two ways: either a) by offering goods and services to EU data subjects (payment not required); or b) by monitoring the behavior of EU data subjects (whether as customers, potential customers or employees).”

 

This means that factors that are considered in order to determine whether an organization is “established” in the EU include whether the organization has a permanent local presence in an EU member state and whether it exercises a real and effective activity there, even a minimal one. For example, a company that has a sales representative, a mailbox and a bank account in an EU member state and that has a website offering goods in a local EU language would be subject to the GDPR.

 

 

For non-EU based establishments that process personal data of European data subjects, Morgan laid out the other factors that could establish a need for your organization to comply:

  • Whether the business offers goods or services in an EU language or currency
  • Whether the business allows EU data subjects to place orders in the local language
  • Whether the business refers to EU customers when marketing its goods and services
  • Other evidence may show intent to target EU data subjects including, for example, a business plan describing efforts to obtain EU customers

 

Examples of the above may include:

  • A single physical location located in the EU
  • A website with a country extension (e.g. .uk, .de, .dk)
  • A published phone number with an EU country code
  • An employee in the EU
  • Processing an EU data subject in a CRM, website or Applicant Tracking System
  • Accepting payment from an EU citizen
  • Shipping product to an EU citizen

 

Of course, if any of the above situations apply to your company or could trigger exposure to the GDPR, evaluating the “surface area” of that exposure is important to discuss with knowledgeable legal counsel. Remember that there is still much gray area in the GDPR, and regular clarifications to the law continue to be released. It is important to monitor these clarifications closely in order to understand how the GDPR is to be interpreted for your own company.

 

If the GDPR does not apply to your company, you can still benefit from implementing a solution for transparency, notice and consent around consumer data handling. For one thing, a best practices privacy rights management system provides other advantages. To learn more, check out What if the GDPR does not apply to me?

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