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Building a Responsible Cyber Society…Since 1998

During the last week, Bengaluru witnessed a disturbing display of lawlessness by a group led by a son of a Congress MLA. The case involved a brawl in a Pub called “Farzi Cafe” in UB City in which another person was beaten to near death by the group.

Similarly there was another incident of VIP misbehaviour of another Congress worker sprinkling petrol and threatening destruction of a BBMP office also in the same week.

While the discussion on the incidents is outside the scope of this website, I would like to only discuss the role of “Digital Evidence” that plays an important part in both these incidents.

In both the incidents, there is video evidence and in one case the offence is an “Attempt to Murder” and in the other case it is “Threatening to commit arson and destruction of Government property”.  Both are very serious offences and requires a fair trial in a Court. The evidence available would therefore be very important.

But there are unconfirmed media reports indicating that since the offenders in both cases relate to the ruling party, the Police are favouring the accused and are unlikely to pursue the case properly. In the process, there will be a possibility of destruction or manipulation of the digital evidence which is in the form of CCTV footages.

The Video in the case of threat to burn BBMP office has already gone viral and is now in the public space. Courts can take cognizance of the incident even if the Police try to suppress it.

But in the incident related to the brawl in the Pub,  there are two videos one from the Farzi Cafe where the brawl first took place and the other from Mallya Hospital where the accused tried to break in perhaps to cause further hurt to the victim. Initial media reports suggest that the Farzi cafe Video has already been tampered with by the Police and will only show the victim slapping the accused and not the earlier first attack by the accused.

If the report is true, it is expected that the case will eventually not get proved in a Court of law and will be dismissed for lack of evidence. Worse still, the victim himself may be punished for attacking a respectable person who is the present accused and provoking him.

The incident highlights the importance of protecting the digital evidence which is extremely useful in such cases with CCTV cameras spread across the city and in most public establishments. Recently, Bangalore Police solved a case of harassment of a lady in the middle of the night only through the CCTV footage that was available.

But if CCTV footages become only tools of manipulation where at the discretion of the Police it would be used in certain cases and in certain other cases it would simply vanish, then the question of accountability for such CCTVs arise.

There is already an argument that installation of CCTV cameras is a threat to the Privacy of Citizens. This will only gets strengthened. The defence that it helps in “Security” falls flat because of the frequent misuse of the CCTV footage by the law enforcement to suit their political objectives.

I therefore request the Bangalore Police to make public the entire unedited version of the Farzi Cafe incident to the public in the interest of transparency in public life. The Court should also direct for such a disclosure.

I believe that Farzi Cafe owners would be having a copy of the video and unless they want to be called for taking sides in the dispute, should go public with the copy of the video in their hands. Since this Video would be relevant not only to the accused but also to the victim as well as other people who would be in the Cafe at the time of the incident, there is a “Public Interest” in the disclosure and Courts can order for the disclosure.

While some body who has the courage to face the wrath of Congress Government in Karnataka can take up the issue as a public interest litigation, the Courts also can take suo moto action if they consider the matter to be of consequence.

If however Farzi Cafe owners have deleted the evidence then they would be liable for prosecution under Section 65 of ITA 2000/8 and Section 204 of IPC for destruction of evidence. If manipulation of evidence has taken place after the Police took charge of the evidence, similar charge can be made on the police personnel also. Probably the Karnataka Human Rights Commission has the jurisdiction to investigate the matter.

It would be interesting to see how the case proceeds from here and what lessons the police and organizations like Farzi Cafe will take from the current incident on handling of CCTV footages which become “Potential Evidence” in criminal cases.

Our discussion would be incomplete without also highlighting why the recent decision on an SLP by the Supreme Court in the case of Shafhi Mohammad  was called by us as an “Recipie for Corruption…” If the order is to be accepted, then the CCTV footage which the Police will produce may be argued as acceptable as evidence without a Section 65B certificate. If the decision in the Basheer case is followed at least there will be one person who will look into the evidence and certify and while doing so will consider if the evidence is trustworthy or not. This important element of check on fraudulent production of digital evidence for admission would be removed if the Safhi Mohammad decision is to be considered as valid. Fortunately this is a two member order on an SLP where as the Basheer judgement is a three member judgement and hence it would prevail.


As we enter the final stages of public consultation on the drafting of the new Data Protection Act of India following the release of the White Paper by the Justice Srikrishna Committee, one aspect of the law that needs attention is the “Right to Know” of an individual which often conflicts with the” Right to Privacy” of another individual.

Right To Know is a different concept

“Right to Know”  is a concept that GDPR also has ignored and there is an opportunity for India to introduce this concept into the discussions of Privacy.

Let me explain with an example why this concept is different from other known concepts including “Right to Information”.

When some body calls us on a phone, the first question we would like to know is “Who is calling?”. If the other person says, sorry, I value my privacy and would not like to reveal my identity or I would like to talk  under a pseudonomous name, the question arises as to whether this is a valid Privacy argument or not.

Similarly, when I receive an e-mail from some body who says he is Jignesh420@gmail.com, I have the right to know whether he is really somebody I know or not. I donot trust the display name since I know that Google does not do a KYC before allocating the user name. I therefore donot know if the e-mail is a “Spam”, is an attempt to “Impersonate” or is an attempt to commit a fraud on me. If I want to know more about the person, I need to know his IP address.

However, Google in its misdirected concept of Privacy hides the IP address with a proxy address from Google which cannot be deciphered without the intervention of law and takes too much of time and effort and often bribing of the law enforcement personnel just to send a notice to Gmail administration.

I therefore ask a question to the law makers,

Do I not have a right to know the true IP address of the person who has sent me an e-mail?

If Privacy activists want the IP address to be hidden in the email while it is in transit, I demand that Google should introduce a procedure by which every recipient of an e-mail should be able to raise a one click query to know the IP address from which an E-Mail has been sent to him and Google should automatically provide the information.

Similarly, any ISP should also provide the last mile resolution of the IP address to any person who can prove that he has been in receipt of a communication from such IP address.

This is what I consider as the “Right to Know” and it extends to the Facebook and Twitter accounts as well as social media such as the Whats App.

If “Right to Know” is upheld as a Right of an individual, it does not conflict with the right to privacy of an individual except that such right stops at the door steps of the rights of the receiver of a communication. On the other hand it provides a new right to the recipient of an electronic communication just like the “Right to Speech” co-exists with the Right of Privacy in law.

This “Right to Know the IP address” extends to other instances such as

a) Right to Know the identity of a Domain Name Registrant

b) Right to know the identity of the owner of a Telephone number or Mobile Number from which the recipient has received at least one call or is reasonably suspected to have been used for the commission of an offence.

…. and may be for other instances as well to be  defined just like the multiple parameters we may use for classifying “Sensitive Personal Information” under the law.

Aadhaar has recently introduced a link on its site to provide information on Aadhaar usage history of a person which is a great measure towards transparency. But the information provided is on the basis of a transaction code that cannot make any sense to the Aadhaar user. It has to provide the name of the entity that made the query either directly on the website itself or through a link for which there can be a second OTP authentication. This falls under the “Right to Know”.

The procedure for extracting the information in the above cases must be simple and nothing more than

a) Identification of the person who is making the request with something like the digital signature or Aadhaar

b) Statement of the suspected contravention of law or proof of being a recipient of an attempted communication

c) A commitment not to misuse the information for any purpose other than the stated purpose with an undertaking to be liable for consequences of misuse

I request Justice Srikrishna Committee to consider this suggestion and incorporate it into its recommendations.

(Comments Invited)


We often say that “One person’s right to extend the arm ends at the tip of the nose of the next person”. This is a well known cliche but often forgotten by those who are over enthusiastic on “Privacy” including the judges of the Supreme Court.

We are now in the midst of the drafting of the new Data Protection Law and there is all forms of demand on how the Privacy has to be protected.

There is one school of thought that “Privacy” has to be protected not only in terms of Information but also otherwise. In the GDPR there was mention of information processed “by automatic means” or “Semi automatic means” as the scope of the act. Now the Indian Data Protection Act (IDPA)for which the B N Srikrishna Committee published a white paper is finalizing the recommendation on the scope of the act. Should it be applicable only to “Electronic Information” or should it extend to “Paper and Voice” is one question that the committee has been posed.

We must shout out aloud at this point of time that the erudite 9 member Supreme Court which hurriedly passed a 547 page judgement just to declare “Privacy is a fundamental Right” abdicated its responsibility to define what is Privacy.  How can we then force the law to define “Privacy”? and to extend it beyond the “Electronic form” in which “Data Protection” is being discussed by the committee?.

It is therefore essential to accept the limitation that this new proposed law (IDPA) will have to restrict itself as a “Data Protection Act” and not as a “Privacy Protection Act”. Since Data is already protected in the ITA 2000/8, we can say that IDPA will now be a “Privacy Data Protection Act” meaning that it will only address information related to Privacy.

Since Privacy is not defined, any attempt to protect information about the vague entity called Privacy will also be reasonably vague. Hence the scope will have to use such words as

“Information such as Name, Address, Mobile Number, E Mail Address, Financial Information, Heath Information, Biometric information etc..”

Presently we leave the definition as any information that is capable of identifying or associating with a living individual. Nothing much can be done beyond this definition of Personal Information. If some software or person is clever enough to see some information and identify a living person through it through his clairvoyance, we cannot factor it into the definition beyond use of such words as

“Personally identifiable information includes any information which along with other information in the hands of the person could be used by any prudent person with ordinary capabilities to identify the true identity of the owner of the data”.

It can also state…

” Personally identifiable information does not include de-identified/anonymized information  or pseudonomized information which means that the identity apparently associated with the data cannot be reasonably used to identify the real identity of the data owner by a person of ordinary prudence with the information already in his hands?”

While “De-identified” data will go out of the legislation, there is a view by some that any attempt to “Re-identify” a de-identified data should be made a criminal offence.

While privacy activists can make a good case for sending the person who causes re-identification to the gallows if allowed, one must understand that it is the duty of the “Law Enforcement” on a day to day basis to read available information and try to identify criminals both present and potential. Many scientific data analytics including genetics try to identify the “Tendencies” to be a criminal. May be this is not a perfected science. But today scientists and law enforcement people browsing through CCTV footage and trying to identify people with face recognition features etc or identifying Car number plates to file a traffic violation case, can all be accused of “Identifying a De-identified data” and punished  if the law to be made does not take the possibility into consideration.

Further all the Data Analytics companies will be made “Illegal Activities” ab-initio. All Start ups in this filed have to close down.

If therefore “Re-identification” of “De-identified data” is made an offence, then we will be creating a new data protection regime in which the proposition that  “Data is New Oil” will be killed. Perhaps economists can estimate by how much percentage points the GDP of India will decline if this is made into a law.

The Google Glass technology is meant to view a person and immediately check the tags in Face book and Google to give you a flash back of the person you are now shaking hands with. Is it not “Re-identification” of the “Not identified”?. The entire industry of Artificial intelligence including the “Automated Car” , “Smart City Energy Management” etc uses plenty of data analytics which includes identification of the un-identified with the use of available data. Gait recognition is the new terrorist control measure that intelligence agencies use. Profiling of employees through their non verbal communication is a new science under development. Analysing social media information and developing a credit rating is another area of scientific research.

Should we kill all these innovations because some criminal wants to have the right to hide as part of right to privacy?

All those Privacy activists who strongly support Privacy to the extent of making the work of law enforcement impossible should think for a while on whether we have any need to protect the honest from the dishonest who want to hide.

I have recently quoted two instances in which I see how Privacy laws are protecting the criminals more than the honest and challenge the Privacy activists to prove me wrong.

First, I get an e-mail from a  Gmail ID which is either a fraudulent mail or a defamatory mail or a threatening mail. I am the recipient of the mail but the sender hides his identity with the help of Google by anonymization of the IP address.  The recipient of the e-mail which is me, have no right to ask Google to tell me who has sent me the e-mail hiding behind a self created pseudonomized ID.  If I want to know the identity of the person, I need to first approach the Police, get my complaint registered which may require payment of a bribe in most cases,  make them send a CrPc notice, wait for Google to send the IP resolution, thereafter send a similar request to the local ISP and finally get the address of the person who sent me the offending e-mail. All this takes so much time that by the time I get the information the criminal is no longer traceable.

This criminal friendly situation has been created because Google considers that the Privacy of the sender of the e-mail is more important than the Privacy of the receiver of the e-mail. This is a gross misuse of the concept of Privacy.

The same defense extends to all those who register fake websites and carry out phishing attacks. Their registration details are protected under what is termed as a “Right to Privacy”.

This practice of Privacy being used as a shield to protect criminals must be stopped.

Hence apart from the IDPA not criminalizing re-identification, a punishable offence, the law should not curtain the hands of the law enforcement by enabling Privacy to be used as a shield either by Google or any other web operator.

What should be punishable is the misuse of the re-identified data and posing unreasonable hurdles on re-identification when a genuine stake holder such as a receiver of an e-mail or a visitor of a website demand for the information. The Data controller can ask for an undertaking from the recipient not to misuse the information such as the IP address or telephone number and also have a process by which such demands are logged in with the Data Protection Authority to take further action when required.

But a refusal to divulge the information that protects the criminal should be itself made a crime.

I therefore request that in the IDPA, a provision is made where by a recipient of an E-Mail or a phone call or a visitor to a public website or a Twitter or Facebook is entitled to demand the identity of the sender of the communication with an undertaking not to misuse the information and be accountable for any punishment thereof and escrowing such request and declaration with the Data Protection authority.


(This is a continuation of the previous article)

3.  A lot of discussion centered around the issue of “Consent” and “Informed Consent”. The issues were about the need for and effect of consents as an instrument of Privacy protection. There were also suggestions that consents should be applicable by processors also, consents should be standardized and simplified etc. The fact that India consists of illiterate users with multiple language use also was highlighted. The difficulties of handling “Employee Records” when the companies want to change the processors was also raised.


It is true that “Consent” has been the main instrument with which Privacy protection is being handled worldwide. The focus has been that there has to be a proper Privacy Notice, there has to be an “Informed Consent”, the opt-out  should be the default option etc.

Consent Fatigue

At the same time the issue of “Consent fatigue” where by users are required to go through multiple consent forms several times during the day which makes them click on consents as a routine manner is unavoidable. If we continue to deal with “Consents” then we need to find a way to address the “Consent fatigue” issue.

Though the “Click Wrap Consents” donot have a strict legal validity in India, they still constitute a means of finalizing “Contracts” online which would be considered as “Implied Contracts”. Implied contracts have the short coming of being “Voidable” in respect of onerous fine print clauses and would not help either the consumer or the service provider at times of crisis.

In India, at present Section 43A of ITA 2008 provides “Contractual Consent” as the prime method of defining “Reasonable Security”. Hence when an employer obtains a valid contract with the employee at the time of employment which includes the right to process personal information, it can be considered as a “Consent” that can enable the employer to over ride the privacy obligations. Companies with multi national employees also are subject to the same law through many corporate seem to fear international regulations and consider their local rights as non existing.

The system of “Consent” cannot be changed. It will continue. However efforts to make it better in terms of making the user understand the nuances before he clicks the acceptance button and highlighting the onerous clauses to make them effective even in a deemed, standard form , implied contract should continue.

One of the suggestions made was to have a few standard form of consents which are colour coded so that the user knows exactly whether he is giving consent to a “Green Clause” with less amount of personal information being made available to “Red clause” with more information disclosure and risk were suggested.

These suggestions are also dependent on classification of data which includes special form of data which are derived from the data supplied by the data subject and converted into a more value added form. There are data such as “Psychometric data” or “Genetic data” which could be derived with effort from the Data collector. Assigning rights on them and restricting data aggregation and use of value  created out of aggregation is a challenge.

Some suggested that we need to even recognize “Community Data” and protect them.

Ease of Doing Business

It is essential for us to understand that in designing the new law, we cannot go overboard with all minute concerns real and imaginary. We need to look at creating a law that is possible to be understood and implemented. “Compliance” should be facilitated so that industry does not look at this as a “Hurdle” and the “Ease of Doing business in India” does not deteriorate.

Value Addition to Data

Also the possibility of the Data collector doing an analysis and creating additional processed data which is more valuable cannot be completely taken out of the rights of the processor. Even if the basic data belongs to the data subject, the derived data has an element of value addition by the Data collector which needs to be rewarded.

Some examples of such derived data pointed out by the participants included “Energy Consumption Data” and “Psychometric data” which may be extreme cases of artificial intelligence usage which are more for fiction writers of the future rather than the law makers of today. If “Data Analytics” is a key area of business in future, then it is possible that data can be used in multitude ways by technologists and law can only be set in generic terms to cover the “Identifiability” of data as a parameter of regulation.

The classification of “Identified” and “Identifiable with available data” and “Identifiable with further data that may be derived or available through instances such as mergers and acquisitions etc” need to be addressed. However, the level to which Artificial Intelaigence can go in future is not known to us today and hence some loss of privacy has to be factored into the legislation today. This can be introduced in the form of differential penalties when data is breached depending on the level of security that the Data controller demonstrates as having been used before the data was lost.

Data Trust as an intermediary

Considering these difficulties, there were multiple suggestions which came back to the central point of what we have suggested earlier as a “Data Trust”. These intermediaries can be instruments of effective collection and use of consents. They can also monitor the Data controllers and impose discipline in the industry. The concept has already been discussed earlier and hence it is not repeated here. But if it is accepted, there would be an instrument of managing “Data” as a “Property of the data subject” which is licensed to the Data Controller through the Data Trust. The Data Controller who makes revenue out of the data has to bear the cost of this infrastructure by sharing some of his spoils with the Data Trusts so that the consumer does not end up incurring higher direct costs. But the Consumer may be able to get better data security in respect of his Privacy information.

Many participants discussed the concept of “Co-regulation” where the Data controllers would participate in the last mile control of data security. The law may also end up not being too prescriptive and leave it for the Data Controllers and Processors to “Secure” and in case of failure, “Pay a penalty”.

Recognizing the importance of monitoring the activity of the Data controllers, some suggested that there should be public accountability and auditability of data controllers etc. Most of these are impractical and  from the security point of view are not recommended also. The processing infrastructure in most cases cannot be publicised and hence the only recourse is to get proper warranties and punish negligence adequately to ensure that Data Controllers maintain the security of data.

In such a regime, it is preferable that instead of regulating hundreds of Data Controllers, if we have  fewer “Data Trusts” it would be better from the point of view of management and regulation. Thus, the concept of Data Trusts present multiple advantages that need to be recognized by the law makers… is our suggestion.

Privacy Vs Law Enforcement Requirements

Naavi also pointed out that in many instances, Privacy Protection is used as a protection against law enforcement detection. Hence there is a pressure on law makers to include stringent prescriptions and not yield to any exemptions to be given to law enforcement. This is not ideal according to us. Privacy Protection is as much for honest citizens who consider law enforcement as their protectors and hence law should take this into consideration.

Data Tagging

In suggesting protection for data when it moves from one data controller to a data processor and subsequently to many sub contractors, a discussion ensued on whether it is possible for data to be tagged in such a manner that it can be traced wherever it moves so that it can be erased when necessary and updated when required. Many participants felt that this is technologically feasible and must be implemented through law.  However, the undersigned is of the opinion that “Personal Data” collected by a Data collector does not always remain as a single document that can be tagged when it is moved further. The collected data contains many data elements and sub data elements which may be split, distributed and re assembled elsewhere in a different context. Hence putting a traceable and auditable tag on personal information is not technically feasible and hence cannot be mandated. Instead mandating the legal responsibility to protect through sub contractor’s contracts is the only feasible option which can be put into the law either in the main law or through sectoral laws or regulations. This is already being done as a standard industry practice.

Cyber Security obligations

Repeated requests were made to mandate “Cyber Security” as part of the data protection laws. It would be introduced  as an obligation of the Data Collector (or the Data Trust) and certainly there is no case for a prescriptive information security policy being part of the main legislation. This is part of HIPAA legislated in 1996 and is relevant for sectoral laws and not for the umbrella law.

Foreign Data Subject

Discussions were had on “Data of Non Nationals” whether it should be covered or not. This is an important issue which should be part of the scope definition. When the personal data of any body including a non national comes into the hands of an Indian Data Controller or Data Collector there will be a contractual agreement between the data subject and the data collector. This should define the data protection obligations and should provide primacy to the Indian law by default. In our opinion any demand that such individuals directly dealing with Indian data collectors refusing to abide by Indian law is forcing the Indian data collectors to follow an alien law instead of the local law. This is not recommended for acceptance.

In the event of a foreign data subject coming through a foreign data collector/Controller who entrusts the data for processing to an Indian data processor, the obligations need to be set into a Business Associate/Sub Contractor contract and other things should be subordinate to the contractual obligation. This is the law in India under Section 4#A of ITA 2000 and must be respected.


One aspect that did not come up for full discussion was whether there would be any certification bodies that would certify the Data Protection in different agencies like the standards certifying bodies.

It is known that most data breaches have occurred in bodies that have been certified under PCI DSS or ISO 27001 etc. The presence of such certificates make the management complacent and reduce their vigilance. Instead the responsibility should remain with the management and they may be permitted to use any standards to achieve the objectives of securing the privacy data. It should be the choice of individual organizations to chose any standards external or internal, resort to certification or otherwise. The Data Protection Authority may however have their own standards for auditing and they may use any auditing firm including PWC as they so desire as long as the assessment is on the basis of the law as defined and not on other considerations.

Privacy After Death

A point was raised by the undersigned on whether Privacy Right should persist after death. Though not discussed in the general forum, it was pointed out by the undersigned that “Privacy” as a “Right to Life and Liberty” has no meaning after the death and Privacy of an X individual cannot be enforced as a right of Y. If a person has a deemed Privacy issue, it should be handled as a “Defamation” or “Attempted Defamation” issue rather than the Privacy issue. Hence the protection obligations should cease after the death of the individual.

Naavi’s Detailed Comments

A copy of the written response to the questionnaire from Naavi was submitted to the Committee. It  has incorporate the points mentioned here. The final version which may be submitted before 31st January 2018 will also be posted on naavi.org whether they are considered by the committee or not.

Post Script:

We close the recollection of the Public consultation exercise at Bangalore on 13th January 2018 in Bangalore here. We might not have recollected all aspects of the discussion. Omission f any is not intentional. I invite other participants to add their comments if any.

We shall continue to submit our own thoughts on the subject here in the coming days as well.


Links to all the three parts of this report of the consultation are available here

Part I

 Part II

Part III

Public Consultation on Data Protection Legislation

Posted by Vijayashankar Na on January 14, 2018
Posted in Cyber Law  | Tagged With: , , , | No Comments yet, please leave one

Yesterday, (13th January 2017), three members of the Judtice Srikrishna Committee on Data Protection Law participated in a public consultation program in Bangalore at the IISc auditorium.

Honourable Justice (Retd) B.N. Srikrishna, the Chairman of the committee was present along with two other members of the committee namely Mr Gopalakrishna and Rama Vedashree. A healthy discussion was held all through the day with around 100 participants which consisted of the elite Privacy practitioners in Bengaluru including IT professionals, Lawyers, Activists and some representatives from the academia. This was one of the four such meetings that are being held across the country while the option to submit the feedback continues on the website till January 31, 2018. The earlier meetings were held in Delhi and Hyderabad and the last meeting is being held at Mumbai.

Though this consultation was not directly related to a discussion on Aadhaar, there were many agitated Aadhaar critics in the meeting and raised their concerns. The Supreme Court which is resuming its hearing on Aadhaar on 17th January 2018 will take into account the efforts of the Government in improving the Privacy protection regime in the country both in its efforts to introduce the Virtual Aadhaar ID system as well as the introduction of a robust data protection law in India.  In that context, the efforts being taken by the committee to have a wide consultation across the country with experts from the field was important since one of the objections of the Anti-Aadhaar lobby has been that the Justice Srikrishna Committee itself did not have a proper representation of all stake holders. This consultation process therefore addresses this issue and takes the sting out of the criticism that the committee does not represent all the stakeholders.

Justice Srikrishna came through as a well informed person even in the field of Technology and gave confidence to the community that the Data Protection recommendations to be given by the committee would be fair and address most of the concerns. He was keen to listen to the views of everyone and responded where required with his own wit and humour, keeping the discussions lively throughout the day.

End of the day, the gathering was convinced that the job of framing the data protection law which has been pending since many years and passed through many versions would get another serious and fair try.

We urge professionals to take the time left to go through the white paper and submit their valuable views to the committee so that the opportunity to contribute to the law making in this important area is not missed.

Naavi.org hs been providing its views and will continue to do so in the next few days left.  So far some of the views have been expressed in the following articles.

1. Data Protection Law in India… Three Big Ideas …. Data Trust, Jurisdictional Umbrella and Reciprocal Enforcement Rights
2. Look beyond GDPR and Create Personal Data Trusts to manage Privacy of data subjects
3. “Compliance by Design” should be the motto of the Data Protection Act of India
4. We should forget the “Right to Forget” in Indian Data Protection Act
5. Personal Data should be considered a personal Property
6. Data Protection Act.. We should aim at Compliance with Pleasure not Compliance with Pain.
7. Right to Privacy should cease at death
8. Proposed Data Protection Legislation in India- White Paper released
9. All articles


[P.S: This is in continuation of the discussion of the proposed Data Protection Act in India and the public comments invited for the  Justice Srikrishna report.]

The EU law on Privacy under GDPR recognizes the “Right to Forget” which essentially means that the data subject can demand that his personal information should be erased from the records in the custody of the data processor/data controller once the data subject withdraws his consent.

Enabling “Erasure” of data is not as simple as it looks since data has a tendency to multiply and spread in different systems within the processing organization and it is often difficult to even recognize where all the copies of data are present. With need to back up data for reasons of disaster recovery and different versions of data getting created during the course of relationship of a customer with a data processing entity, when a demand for deletion comes up, it is difficult to ensure the complete erasure of data.

Further, since data is related to National Security and Crime control, there is a legal obligation to “Retain Data” in many circumstances. There will therefore be a conflict of interest between the need to erase data on request and the need to retain data for control of criminal activities. Even the need for Governance such as Direct benefit Transfer with the use of Aadhaar requires data to be retained and not erased at the request of only the data subject.

Even when Privacy is considered as a Fundamental Right, the law provides for exemptions for security purpose and hence the “Right to Forget” or “Right of erasure” is a concept which cannot be considered for the Data Protection Act.