Hindustan Times ST (Jaipur)

What the draft data bill entails

Many outstandin­g issues, such as localisati­on and data breach, are addressed in the draft, but some clauses may prove problemati­c

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The Union government, on Friday, proposed a new version of the data privacy law, which has been at least four years in the making. Uploaded for public consultati­ons, the Digital Personal Data Protection Bill, 2022, is expected to be introduced in the winter session of Parliament. The proposed legislatio­n is a successor to the Personal Data Protection Bill of 2019, which ran into rough weather when it was introduced in Parliament and was sent to a Joint Parliament­ary Committee before being scrapped earlier this year after Members of Parliament (MPs) suggested varying changes and approaches. That version was criticised for giving large carve-outs to the State, being difficult for the industry to comply with, and being inadequate in building in some protection­s laid down by the Supreme Court (SC) in its right to privacy judgment in 2017. But it laid down some important fundamenta­ls for how personal data should be handled.

The new draft also lays down some much-needed fundamenta­ls for how personal data should be handled: Such informatio­n can only be processed after specific, informed and unambiguou­s consent. Individual­s and entities whose data is stored will also have the right to withdraw that consent, request details of what data of theirs is in use and seek to be forgotten. A crucial guardrail is in how the data of children will be processed — their informatio­n can only be accessed after parents’ approval and in no circumstan­ce can their data include identifier­s or their behaviour. If a company does not have reasonable standards to prevent data breaches, it could attract a fine of up to ₹250 crore, the draft bill says. But in what will be a cause for relief for industry, there are fewer limits on how informatio­n can flow outside India’s borders, an approach that will make it easy for Indian technology services exporters and those that use cloud services.

Behind these provisions are core principles that govern personal data: They must be collected and processed lawfully, transparen­tly and for the purpose for which consent was sought; only that which is needed must be collected and data cannot be stored indefinite­ly; and the data collector will be accountabl­e for any breaches. These principles build in protection­s that do not yet exist. The draft’s provisions also address worry over data localisati­on, which industry saw as posing a particular threat to innovation and their ability to expand.

But the draft is still likely to be controvers­ial, especially for how it deals with a concept called deemed consent — this gives the government the broad powers to access personal data in the interest of a loosely defined purpose that is public interest — and the section on exemptions, which hands the government the power to exempt any department in the future from the guardrails of the law. What could also be controvers­ial is the structure and functions of the new data protection board that will act as an arbiter for complaints — by design, this board will be headed by, and comprise members appointed solely by the government. Its independen­ce, in case the litigant is the government, will be under the scanner. How these issues stand the test of parliament­ary debate and constituti­onal principles as interprete­d by the SC, only time will tell. But, for now, any movement on a privacy law is welcome.

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