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The draft Digital Personal Data Protection Bill 2022 has now been released by the Ministry of Electronics and IT (MeitY), and the government is now asking for public comments and consultations on the bill. The bill is supposed to outline the rights and duties of ‘digital nagriks’ or citizens while laying out the process and rules for data collection when it comes to companies. The bill also imposes heavy penalties for violations of any provisions of the legislation which will be decided by the Data Protection Board of India– as established by the new law. However, orders of the board can be challenged in a High Court.
According to an explanatory note for the bill, it is based on seven principles. The first is that “usage of personal data by organisations must be done in a manner that is lawful, fair to the individuals concerned and transparent to individuals.” The second principle states that personal data must only be used for the purposes for which it was collected. This third principle talks of data minimisation, while the fourth puts an emphasis on data accuracy when it comes to collection.
The fifth principle talks of how personal data that is collected cannot be “stored perpetually by default,” and storage should be limited to a fixed duration. The sixth principle notes that there should be reasonable safeguards to ensure there is “no unauthorised collection or processing of personal data.”
Finally, the seventh principle “is that the person who decides the purpose and means of the processing of personal data should be accountable for such processing.”
The bill uses the term “Data Principal” to denote the individual whose data is being collected.
The term “Data Fiduciary” the entity (can be an individual, company, firm, state etc), which decides the “purpose and means of the processing of an individual’s personal data.”
The law also makes a recognition that in the case of children –defined as all users under the age of 18— their parents or lawful guardians will be considered their ‘Data Principals.’
Under the law, personal data is “any data by which or in relation to which an individual can be identified.” Processing means “the entire cycle of operations that can be carried out in respect of personal data.” So right from collection to storage of data would come under processing of data as per the bill.
The bill also ensures that individuals should be able to “access basic information” in languages specified in the eighth schedule of the Indian Constitution. The bill also makes it clear that individual needs to give consent before their data is processed and that “every individual should know what items of personal data a Data Fiduciary wants to collect and the purpose of such collection and further processing.”
Further, the notice of data collection needs to be in clear and easy-to-understand language. Individuals also have the right to withdraw consent from a Data Fiduciary.
The bill also talks of ‘Significant Data Fiduciaries, who deal with a high volume of personal data. The Central government will define who is designated under this category based on a number of factors ranging from the volume of personal data processed to the risk of harm to the potential impact on the sovereignty and integrity of India.
“This category needs to fulfil certain additional obligations to enable greater scrutiny of its practices,” according to the bill’s explanatory note.
Such entities will have to appoint a ‘Data protection officer’ who will represent them. They will be the point of contact for grievance redressal. They will also have to appoint an independent Data auditor who shall evaluate their compliance with the act.
Data principals will have the right to demand the erasure and correction of data collected by the data fiduciary. They will also have the right to nominate an individual who will exercise these rights in the event of death or incapacity of the data principal.
The bill also gives consumers the right to file a complaint against a ‘Data Fiduciary’ with the Data Protection Board in case they do not get a satisfactory response from the company.
The bill also allows for cross-border storage and transfer of data to “certain notified countries and territories.” However, “an assessment of relevant factors by the Central Government would precede such a notification,” adds the note.
The draft also proposes to impose significant penalties on businesses that undergo data breaches or fail to notify users when breaches happen. Entities that fail to take “reasonable security safeguards” to prevent personal data breaches will be fined as high as Rs 250 crore as The Indian Express had reported.
The government could also exempt certain businesses from adhering to provisions of the Bill on the basis of the number of users and the volume of personal data processed by the entity. This has been done keeping in mind startups of the country who had complained that the previous version of the Bill was too “compliance intensive”.
