Tuesday 22 August 2023

Key Highlights of The Digital Personal Data Protection Act, 2023

The Digital Personal Data Protection Act, 2023 was passed by both the houses and received President’s assent on 11.08.2023. The Act provides for the processing of digital personal data in a manner that recognises both the right of individuals to protect their personal data and the need to process such personal data for lawful purposes and for matters connected therewith or incidental thereto.

Data - Data has been defined as a representation of information, facts, concepts, opinions or instructions in a manner suitable for communication, interpretation or processing by human beings or by automated means. It includes data is collected in digital form or in non-digital form and digitised subsequently.

Applicability - The Act applies to the processing of digital personal data within the territory of India where the personal data is collected in digital form or in non-digital form and digitised subsequently. It also applies to processing of digital personal data outside the territory of India, if such processing is in connection with any activity related to offering of goods or services within the territory of India.

Consent and Notice - A person may process the personal data only in accordance with the provisions of this Act and for a lawful purpose for which the consent has been given or for certain legitimate uses. A notice must be given before seeking consent which should contain details about data being collected and its purpose of processing and the manner in which a complaint can be made. Consent may be withdrawn at any point in time.  Consent will not be required for ‘legitimate uses’ including: (i) specified purpose for which data has been provided by an individual voluntarily, (ii) provision of benefit or service by the government, (iii) medical emergency, and (iv) employment.   For individuals below 18 years of age, consent will be provided by the parent or the legal guardian.

Rights of Data Principal - The Data Principal means the individual to whom the personal data relates. She shall have the right to obtain a summary of personal data which is being processed and the processing activities undertaken with respect to such personal data. Also, the identities of all other Data Fiduciaries and Data Processors with whom the personal data has been shared by such Data Fiduciary, along with a description of the personal data so shared. Data Principal also has the right to correction and erasure of personal data.

Duties of Data Principal - Duties of Data Principal is to ensure not to impersonate another person while providing her personal data for a specified purpose, not to suppress any material information while providing her personal data for any document, unique identifier, proof of identity or proof of address issued by the State or any of its instrumentalities and to ensure not to register a false or frivolous grievance or complaint with a Data Fiduciary or the Board.

Consent Manager - The Act also provides for appointment of Consent Manager who will be a person registered with the Board, who acts as a single point of contact to enable a Data Principal to give, manage, review and withdraw her consent through an accessible, transparent and interoperable platform. A Data Principal shall have the right to have readily available means of grievance redressal provided by a Data Fiduciary or Consent Manager in respect of any act or omission of such Data Fiduciary or Consent Manager regarding the performance of its obligations in relation to the personal data of such Data Principal or the exercise of her rights under the provisions of this Act and the rules made thereunder.

Transfer of personal data outside India:  The Bill allows transfer of personal data outside India, except to countries restricted by the central government through notification. 

State Exemptions - Personal data processing by the State has been given several exemptions under the Bill. The Central Government also retains the provision to exempt certain fiduciaries or classes of data fiduciaries from particular provisions, specifically including start-ups.

Data Protection Board of India: The central government will establish the Data Protection Board of India.  Functions of the Board will include monitoring compliance and imposing penalties, directing data fiduciaries to take necessary measures in the event of a data breach, and hearing grievances made by affected persons.  Board members will be appointed for two years and will be eligible for re-appointment. The central government will prescribe details such as the number of members of the Board and the selection process. Appeals against the decisions of the Board will lie with TDSAT.

Penalties: The Act specifies penalties in the Schedule for various offences such as up to: (i) Rs 200 crore for non-fulfilment of obligations for children, and (ii) Rs 250 crore for failure to take security measures to prevent data breaches.  Penalties will be imposed by the Board after conducting an inquiry.  

In the event of any conflict between a provision of the Act and a provision of any other law for the time being in force, the provision of the Act shall prevail to the extent of such conflict.

The Digital Personal Data Protection Act, 2023 is a welcome change in how the digital data will be processed. The Act keeps a check on the limited use of data by Data Fiduciaries and highlights the importance of consent. By limiting the grounds for processing, the Act provides safeguard to Data Principals and upholds their right to privacy. Now after this Act the Data Fiduciaries will have to revisit their privacy policy, terms of use and contracts to make the necessary changes. The few drawbacks of the Act are exemption given to the State and creation of Boards which may slower down the implementation of the Act. However, the strong penalty clauses will help in prevention of data breaches which had become common due to lack of comprehensive legal framework. Many details and rules of the Act are still left to be formulated by the new Data Protection Board of India which is yet to be set up. The Act will bring in a new era of data security, privacy and accountability in India’ digital landscape.

This Article has been Compiled by Ayushi Misra (Senior Associate) and Arun Gupta (Managing Partner). 

You can direct your queries or comments to the author at info@factumlegal.com

Disclaimer-

The contents of this article should not be construed as legal opinion. This article is            intended to provide a general guide to the subject matter. Specialist advice should be    sought about your specific circumstances. We expressly disclaim any financial or other  responsibility arising due to any action taken by any person on the basis of this article.

  

 

 

 

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