Context: 

Recently, the Union Cabinet cleared the Digital Personal Data Protection (DPDP) Bill. 

About Data and Data Protection:

• Data: Data refers to collections of information stored in a computer-readable format, including social media messages, online habits, transactions, medical records, and personal details.
• Data Protection: Data protection aims to safeguard personal data while finding a balance between individual privacy rights and data utilisation.

Image Source: Hindustan Times

• Data Protection Laws in Other  Countries:   
  • Japan: Japan has the ‘Act on Protection of Personal Information’.
  • European Union: The General Data Protection Regulation (GDPR) was adopted in 2018.
  • China: New Chinese laws on data privacy and security issued over the last 12 months include the Personal Information Protection Law (PIPL), which came into effect in November 2021. 
• Data Protection in India:
  • Lack of Dedicated Framework: India does not have a specific legal framework for data protection.
  • Existing Acts: Some existing acts provide limited data protection
    • Information Technology Act 2000: Section 43A protects user data from misuse by corporate entities but does not apply to government agencies. It covers sensitive personal data, such as medical history and biometric information.
    • Other Acts: Acts like the Consumer Protection Act 2015 and Copyrights Act 1957 also offer some protection for personal information.
• Draft Bill: In 2018, a draft version of the Personal Data Protection Bill was prepared by a committee led by retired Justice B N Srikrishna.

Image Source: The Indian Express

Need for Data Protection:

• Invasion of Privacy: India has approximately 400 million internet users and 250 million social media users who engage in substantial online activities.
  • Without effective data protection, there is a risk of heightened surveillance and profiling of individuals without their consent.
• Economic Losses: As per the Cost of a Data Breach report, the per capita cost per lost or stolen record in data breaches reached Rs 5,019 in 2018, representing a significant increase.
• Increasing Sophistication of Cyber Crimes: India is witnessing a shift in the nature of cyber crimes, which have become more organised and collaborative.
  • The expanding volume of data on the internet and the emergence of technologies like artificial intelligence, internet of things, and big data pose a risk of data abuse and misuse.

Image Source: Mckinsey Global Institute Report

Key Features of Digital Personal Data Protection (DPDP) Bill 2022:

• Data Principal and Data Fiduciary: The bill uses the term “Data Principal” to refer to the individual whose data is being collected.
  • The term “Data Fiduciary” refers to the entity (such as an individual, company, firm, or state) that determines the purpose and means of processing the individual’s personal data.
  • For children, defined as users under the age of 18, their parents or lawful guardians are considered their Data Principals.
• Defining Personal Data and its Processing:
  • Personal data is defined as “any data by which or in relation to which an individual can be identified.”
  • Processing refers to the entire cycle of operations carried out in respect of personal data, including collection and storage.
• Cross-Border Data Flows: The Centre will notify regions to which data of Indians can be transferred, based on data security landscape and the government’s access to Indian data from those regions.
• Data Protection Board: The Bill proposes the establishment of a Data Protection Board to enforce compliance. The Data Protection Board will be “digital by design.”
• User Rights and Privacy: Users have the right to correction and erasure of their personal data held by businesses. 
  • Companies of significant size must appoint a Data Protection Officer and an independent data auditor to evaluate compliance. 
  • The Bill prohibits processing of personal data that may cause harm to children and targeted advertising on children below 18 years of age.
• Exemptions and National Security: The Bill includes exemptions for national security reasons, allowing the government to exempt state agencies from adhering to provisions in the interest of sovereignty, integrity, and security of the state. 
  • Certain businesses, based on the number of users and volume of data processed, can also be exempted. This addresses concerns from the start-up ecosystem.
• Penalties:
  • For Users: The Bill prescribes penalties for users who submit false documents during sign-up or file frivolous grievance complaints, with fines up to Rs 10,000.
  • For Entity: Penalties for data breaches and non-compliance have been increased, ranging from Rs 50 crore to Rs 500 crore. 

Concerns Associated with the Bill:

• Dilution of Right to Information (RTI) Act: 
  • The proposed Digital Personal Data Protection Bill seeks to amend Section 8(1)(j) to expand its scope and exempt all personal information from the purview of the RTI Act.
  • This amendment would eliminate the ability to invoke Section 8(1)(j) to protect privacy and deny access to personal information under the RTI Act.

• Inadequate protection of the Right to Privacy: The Bill grants wide discretionary powers to the Central government in drafting rules, raising concerns about the potential infringement on individuals’ right to privacy.
• • For instance, under Section 18, it empowers the Central government to exempt any government, or even private sector entities, from the provisions of the Bill by merely issuing a notification.
• Lack of autonomy for the Data Protection Board: The Appointment of the Board is under the Central government, which raises questions about its independence and the government’s direct control over the institution. 
  • The government can also assign the Board functions under other laws, further impacting its autonomy.
• Limited access to the Internet:  The Bill stipulates that the Data Protection Board shall be ‘digital by design’, including receipt and disposal of complaints. 
  • As per the latest National Family Health Survey, only 33% of women in India have ever used the Internet. 
  • The DPDP Bill, therefore, effectively fails millions of people who do not have meaningful access to the Internet.

Conclusion: 

• A data protection law must safeguard and balance peoples’ right to privacy and their right to information, which are fundamental rights flowing from the Constitution.
• The approval of the Digital Personal Data Protection Bill, 2022, by the Union Cabinet marks a significant milestone for India’s digital landscape. 
• As the regulatory framework for data protection in India progresses, implementation, enforcement mechanisms, and compliance will play crucial roles in establishing responsible data governance. 

News Source: The Hindu

DOWNLOAD PDF