What next on data protection?
- Privacy as a fundamental right
- In Justice K.S. Puttaswamy v. Union of India case the Supreme Court held that the right to privacy is a fundamental right under Right to Life in Article 21.
- The court also held that the right to privacy had both a positive and negative aspect.
- Which implies the need for the state to actively take measures to protect an individual’s privacy.
The concerns about the Personal Data Protection Bill:
- Domestic industry believes that such a law represents a compliance hurdle which could put it at a disadvantage.
- From being the centrepiece of the legislation, privacy protection was increasingly being seen as one of several objectives being pursued.
The need of Personal Data Protection Bill:
- A law can also promote regulatory certainty, thereby opening up the possibility of increased data flows and the growth of data processing business.
- Individuals could benefit by the restrictions on harmful data processing.
The way forward:
- We need to introduce multiple legislation comprising a new comprehensive legal framework since trying to fit all objectives related to the digital ecosystem or even data governance into one Bill would be a mistake.
- Separate laws could deal with issues concerning state surveillance, or issues in the data economy such as dealing with competition-related concerns arising out of the monopolisation of data by certain entities.
- The new law should build in a risk-based approach to data protection, so that the regulatory focus is directed towards addressing sources of potential harm.
- Secondly, based on risk assessments, the law could enable co-regulation and self-regulation (with the regulator acting as a backstop). These could reduce compliance burdens on entities without significantly affecting rights protection.
- The new Bill should include more provisions to ensure that the regulator uses its powers well. These include provisions relating to appointments, consultations, reporting, and so on.
- The government should invest in building some administrative capacity to implement it, so that when the law is eventually passed, implementation can begin soon after.
Source The Hindu
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