Towards Becoming a Well rounded DPO

Yesterday, mr Ravi Shankar Prasad, the honourable minister of MeitY presented the “Personal Data Protection Act 2019” (PDPA2019) which is the revised version of PDPA 2018 suggested by the Justice Srikrishna Committee which was presently under discussion. The new version incorporates some changes based on the public comments as well as the discussions with stakeholders undertaken by the Government.

The copy of the new version can be accessed here :

The bill has now been sent to a select committee for review and re-presentation during the budget session in February 2020. By all indications, it is likely to be passed before the end of the budget session.

At the next stage the Data Protection Authority has to be constituted and necessary rules need to be notified.

When the Act is fully operational, all Data Fiduciaries namely those who collect, process personal data will come under the provisions of the Act. Amongst them those who deal with “Sensitive Personal Information” will need to designate a “Data Protection Officer” (DPO).

The DPO will be an executive at the higher levels of management on par or even above the CISO and needs to have the skills to advise the company on technical aspects of data security, legal aspects of Privacy protection and HR skills of negotiation to deal with the DPA, the Adjudicator, the Cyber Appellate Tribunal (Coordination with a lawyer), mediation with the data principal etc. He needs to also have audit skills and skills to manage internal relationships in the organizations where he is likely to have clashes with the Business heads and CTOs and CISOs.

Further most Indian companies will be exposed to Data Protection regulations of not only India but also other countries.

Recognizing all these requirements, Cyber Law College, which recently started a course on PDPA in association with FDPPI, has decided to take up a long term plan of developing well rounded DPOs through a multi level Course structure.

The present program will be considered as Level I of becoming a “Certified DPO”. Next year after the Act is passed, DPA Constituted, Codes and Practices for data processing established, there will be a next level of training which will be called Level-2.

Subsequently a “SoftSkills Development” training will be conducted to cover the requirements of the DPO and it will be considered as Level 3.

Presently the technical skills are kept out of these training since  there are other avenues for this purpose.  However certain technical aspects that are relevant for Data Protection may be covered under Level 3 or separately as Level 4.

During these programs the discussions will also cover major international data protection laws such as GDPR, CCPA, Federal Data Protection Laws of USA (When established) etc.

Education is endless and need to acquire additional knowledge and skills is ever green. Hence Cyber Law College will continue to add value to each levels of these trainings as may be relevant at the appropriate time.

This entire program developed by Cyber Law College is being recommended to be introduced through the FDPPI, the Foundation of Data Protection Professionals in India which is a Not for Profit Section 8 company.

I look forward to the support of all well wishers in making this program a success. One way to take this forward with your participation is to join the movement of FDPPI as a member and make it the movement of all Data Protection Professionals in India.





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No Protection for Intermediaries under Section 79 prior to 2009

The Supreme court of India made a fine distinction between Section 79 of ITA 2000 as it existed  before the amendment on 27th October 2009 and earlier. In an appeal from Google contending that it cannot be made liable for defamation under IPC 499/500 for not removing the content even after a notice from a Court, the Supreme Court ruled that prior to the amendments, protection was available only for offences under ITA 2000 and not under other acts.

Prior to the amendments the section stood as follows:

Network Service Providers not to be liable in certain cases

For the removal of doubts, it is hereby declared that no person providing any service as a Network Service Provider shall be liable under this Act, rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.

.. Explanation.  – For the purposes of this section –

(a) “Network Service Provider” means an intermediary;

(b) “Third Party Information” means any information dealt with by a network   service provider in his capacity as an intermediary.

After the amendments the section was reworded as follows

 Exemption from liability of intermediary in certain cases

(1) Notwithstanding anything contained in any  law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link  hosted by him. 

 (2)The provisions of sub-section (1) shall apply if-

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties  is transmitted or temporarily stored; or

(b) the intermediary does not-

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf 

According to the reports  the protection did not extend to offences outside ITA 2000 and hence rejected the appeal.


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How the structure of PDPA 2019 has changed

The PDPA contained 112 sections divided into 15 chapters. The new version PDPA 2019 contains 98 sections and is structured as follows:

Chapter Sections Title
I 1-3 Preliminary
II 4-11 Obligations of Data Fiduciary
III 12-15 Grounds for processing personal data without consent
IV 16 Personal data and sensitive personal data of children
V 17-21 Rights of Data Principal
VI 22-32 Transparency and Accountability measures
VII 33-34 Restriction on transfer of personal data outside India
VIII 35-40 Exemptions
IX 41-56 Data Protection authority of India
X 57-66 Penalties and Compensation
XI 66-77 Appellate Tribunal
XII 78-81 Finance, Accounts and Audit
XIII 82-85 Offences
XIV 86-98 Miscellaneous

It is important to note that the chapter on “Transition” that set a time line for implementation is no longer there. This could mean that the Act may be effective as soon as it is passed into law though DPA may not be in place.

The Grounds of processing which were contained in three chapters earlier has now been condensed into one chapter.


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PDPA 2019 is shorter and Data Localization is relaxed

The first thing we notice is that the PDPA 2019 (draft) contains 98 sections instead of 112 sections in the earlier Bill and also omits one schedule regarding the amendment to RTI.

The change regarding the data localization could be first looked at since this has been a point of concern of the industry.

Chapter VII of PDPA 2019 has two sections 33 and 34 which refer to Restriction on transfer of personal data outside India.

According to section 33:

33. (1) Subject to the conditions in sub-section (1) of section 34, the sensitive personal   20 data may be transferred outside India, but such sensitive personal data shall continue to be stored in India.

(2) The critical personal data shall only be processed in India.

Explanation.—For the purposes of sub-section (2), the expression “critical personal data” means such personal data as may be notified by the Central Government to be the    critical personal data.

This means that the provision of one copy being stored in India continues for sensitive personal data and has been removed for Non Sensitive personal data. Strict restriction for non transfer applies to critical personal data as and when notified.

Under Section 34 the transfer of sensitive personal data is subject to the following provisions such as explicit consent and intra group schemes approved by the DPA and on adequacy principle,medical emergencies etc.

34. (1) The sensitive personal data may only be transferred outside India for the purpose of processing, when explicit consent is given by the data principal for such transfer, and where—

(a) the transfer is made pursuant to a contract or intra-group scheme approved 30 by the Authority:

Provided that such contract or intra-group scheme shall not be approved, unless it makes the provisions for—

(i) effective protection of the rights of the data principal under this Act, including in relation to further transfer to any other person; and 

(ii) liability of the data fiduciary for harm caused due to non-compliance of the provisions of such contract or intra-group scheme by such transfer; or

(b) the Central Government, after consultation with the Authority, has allowed the transfer to a country or, such entity or class of entity in a country or, an international organisation on the basis of its finding that

(i) such sensitive personal data shall be subject to an adequate level of protection, having regard to the applicable laws and international agreements; and

(ii) such transfer shall not prejudicially affect the enforcement of relevant laws by authorities with appropriate jurisdiction:

Provided that any finding under this clause shall be reviewed periodically in such manner as may be prescribed;

(c) the Authority has allowed transfer of any sensitive personal data or class of sensitive personal data necessary for any specific purpose.

(2) Notwithstanding anything contained in sub-section (2) of section 33, any critical personal data may be transferred outside India, only where such transfer is—

(a) to a person or entity engaged in the provision of health services or emergency services where such transfer is necessary for prompt action under section 12; or

(b) to a country or, any entity or class of entity in a country or, to an international organisation, where the Central Government has deemed such transfer to be permissible under clause (b) of sub-section (1) and where such transfer in the opinion of the Central Government does not prejudicially affect the security and strategic interest of the State.

(3) Any transfer under clause (a) of sub-section (2) shall be notified to the Authority within such period as may be specified by regulations

The definition of sensitive personal data has also been slightly revised and the current list is as follows:

“sensitive personal data” means such personal data, which may, reveal, be related to, or constitute—

(i) financial data;

(ii)  health data;

(iii) official identifier;

(iv) sex life;

(v) sexual orientation;

(vi) biometric data;

(vii)  genetic data;

(viii)  transgender status;

(ix)  intersex status;

(x) caste or tribe;

(xi) religious or political belief or affiliation; or

(xii) any other data categorised as sensitive personal data under section 15.

Explanation.— For the purposes of this clause, the expressions,—

(a) “intersex status” means the condition of a data principal who is—

(i) a combination of female or male;

(ii) neither wholly female nor wholly male; or

(iii) neither female nor male;

(b) “transgender status” means the condition of a data principal whose sense of gender does not match with the gender assigned to that data principal at birth, whether or not they have undergone sex reassignment surgery, hormone therapy, laser therapy, or any other similar medical procedure;

It may be noted that “passwords” is no longer considered “Sensitive”. Implication of this needs to be debated since any misuse of “passwords” is an offence under Section 66C/66D of ITA 2000.

The amended provisions therefore has given up the data localization for non sensitive personal data and must be a big relief to most companies.  Social media which carry political discussions as well as names which are associated with “caste” or “Tribe” may be considered as “Sensitive” and hence fall under the restrictive category.


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New Version of PDPA is now available

A version of the PDPA which is slightly different from the earlier version is now available and though not confirmed, could be the bill which will be presented in the Parliament in the next few days.

A copy of the bill is available here.



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Personal Data Protection Bill New Version expected to be made public any time

It is reported that the Union Cabinet has approved a version of the Personal Data Protection Bill to be tabled in the Parliament. It is expected that the Bill will be tabled any time.

The industry observers are waiting eagerly to see if the “Anti Data Localization Lobby” has been able to persuade the Government to drop the earlier proposition. This was the most vocal opposition to the earlier version. On the other hand a lobby did develop highlighting the “Data Sovereignty” principle. We need to see if the Government has yielded to the lobby.

There are some unconfirmed reports that some provisions of the Intermediary Guidelines that was issued as a change in the notification under ITA 2000 could be also included in some form in the Bill. We need to wait if this is done.

One of the provisions that we eagerly await is regarding the “Non Bailable” nature of the offences which perhaps need to be changed into “Bailable”. The Data localization issue can be handled in due course since the Act anyway has the provision to set up a separate date for implementation of this provision.

Let us wait and see whether the wishes of the Anti Data Localization lobby have been accommodated.

It would be interesting to see how the Opposition would react to the Bill. Will they oppose it for the sake of opposition? or go with the tide to bring a formal data protection regime in India?

Naavi’s Cyber Law College would be launching its new Certificate Course on PDPA from this Saturday the 7th December 2019 and would be the first such formal course to incorporate the new version of the Bill. It is expected that the Bill gets passed at the next session in February and the DPA would be in place by April 2020.


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