Reasonable Security Practices and Procedures and Sensitive Personal Data in India-provisions required

ITA Reasonable Security Practices and Procedures and Sensitive

Personal Data or Information Rules 2011

The Personal Information Security Rules were notified in April 2011 and serve as

the most comprehensive form of data protection in India. The Rules prescribe procedures

and protocol by which body corporate must adhere to. The Rules can be brought in line

with the National Privacy Principles through the following changes:

1. Notice

Existing Provisions

o Privacy Policy: Anybody corporate that collects, receives, possesses, stores,

deals, or handles information must provide a privacy policy that provides for clear

and easily accessible statements of its practices and policies, type of personal or

sensitive personal data or information collected, purpose of collection and usage

of such information, disclosure of information, and reasonable security practices

and procedures. Rule 4

o During Collection: While collecting information directly from the person

concerned the body corporate shall take steps to ensure that the individual knows

that the information is being collected, the purpose for which the information is

being collected, the intended recipients of the information, the name and address

of the agency collecting the information and the agency that will retain the

information. Rule 5(3)

Missing Provisions

o Data Breach: If a data breach occurs, affected individuals must be notified

immediately.

o Legal Access: If information is legally accessed, the access must be notified at the

close of the investigation.

o Change in privacy policy: Any changes in a body corporate privacy policy

should be notified to the public and the individual.

o Process to access and correct: At the time of collection body corporates must

provide notice of the processes available to data subjects to access and correct

their own personal information.

2. Choice & Consent

Existing Provisions

o Individual Consent: Body corporates must obtain consent in writing through

letter or Fax, or email from the provider of the sensitive personal data or

information regarding purpose of usage before collection. Rule 5(1)

o Right to withdraw and opt in/opt out: Prior to collection of information, body

corporate must provide the individual not to provide the data sought. The provider

of information will have the right to withdraw consent at any time while availing

services. Rule 5(7)

Missing Provisions

o Mandatory provision: When provision of information is mandated by is should

be in compliance with all other National Privacy Principles. Information collected

on a mandatory basis should be anonymized within one year if published in public

databases.

3. Collection Limitation

Existing Provisions

o Necessary & Relevant: Body corporate shall not collect sensitive personal data

unless the information is collected for a lawful purpose connected with a function

or activity of the body corporate. The collection of sensitive personal data is

considered necessary for the purpose. Rule 5(2)

4. Purpose Limitation

Existing Provisions

o Definition of Sensitive Personal Data: password, financial information such as

Bank account or credit card or debit card or other payment instrument details,

physical, physiological and mental health conditions, sexual orientation, medical

records and history, biometric information, any detail relating to the above as

provided to body corporate for providing service, any of this information received

by body corporate for processing, stored or processed under lawful contract. Any

information that is available or accessible in public domain or furnished under the

Right to Information Act, 2005 will not be regarded as sensitive personal data. Rule 3

o Retention: The Body Corporate holding sensitive personal data will not retain

that information for longer than is required for the purposes for which the

information may be lawfully used or is required under any other law in force.Rule 5(4)

o Use: The information collected will be used for the purpose for which it has been

collected. Rule 5(5)

Missing Provisions

o Adequate and Relevant: Personal data collected and processed by an

organization must be adequate and relevant to the purposes for which they are

processed.

o Change in purpose: If there is a change in purpose, this must be notified to the

data subject.

o Destruction: After personal information has been used in accordance with the

identified purpose, it must be destroyed as per the identified procedures.

o Data Retention: Data retention mandates by the government should be in

compliance with the National Privacy Principles.

5. Access & Correction

Existing Provisions

o Access: Body corporate must permit the providers of information, when

requested, to review the information they had provided and ensure that any

personal information or sensitive personal data or information found to be

inaccurate or deficient shall be corrected or amended as feasible. Rule 5(6)

Missing Provisions:

o Confirmation of personal information: Data subjects should be able to confirm

that an organization holds or is processing information about them.

o Copy of personal information: Data subjects should be able to obtain a copy of

the personal data undergoing processing.

o Limitation to Access: The information may not be given or access permitted if it

is not possible to do so without disclosing information about another person unless

that persona has consented to the disclosure.

6. Disclosure of Information

Existing Provisions

O Consent for Disclosure: Disclosure of sensitive personal data or information by

body corporate to any third party shall require prior permission from the provider

of such information, unless disclosure has been agreed to by contract or is

necessary by legal obligation. Rule 6

o Prohibition on publishing: The body corporate will not publish the sensitive

personal data or information. Rule 6(3)

o Non-disclosure: The third party receiving the sensitive personal data will not

disclose it further. Rule 6(4)

o Transfer of Information: A body corporate may transfer sensitive personal data

to any body, organization, or country that ensures the same level of data

protection. The transfer can only take place for the performance of a lawful

contract or where the transfer has been consented to. Rule 7

Missing Provisions

o Notice of disclosure: Body corporate must provide notice of disclosure to third

parties.

o Bound to Principles: All third parties must be bound to the National Privacy

Principles.

Conflicting Provisions

o Authorized Agencies: Information will be share with Government Agencies

mandated under law without obtaining prior consent for the purposes of

verification of identity, for prevention, detection, investigation including cyber

incidents, prosecution, and punishments of offences. Rule 6

7. Security

Existing Provisions

o Security standards: A body corporate or person must have a comprehensive

documented information security program and information security policies that

contain managerial, technical, operational, and physical security control measures.

In the event of a breach, the body corporate must be able to demonstrate that they

have implemented security control measures. This includes being IS/ISO/IEC

27001 compliant. Rule 8(1)

o Audit: On any annual basis the body corporate must undergo an audit of his/her

reasonable security practices. Rule 8(4)

8. Openness

Missing Provisions

Transparency: Body corporate must make available to the public information

regarding the steps taken to ensure compliance with the National Privacy Principles

9. Accountability

Existing Provisions

· System of Complaints: Body Corporates must address any discrepancies and

grievances of their provider of the information with respect to the processing of

information in a time bound manner. To achieve this, a Grievance Officer must be

appointed to address these grievances. Rule 5(9)

Missing Provisions

o External verification: All processes related to the handling of sensitive personal

information [in addition to security systems] should undergo external verification

on a regular basis.

o Support to Privacy Commissioner: Body corporate should be held responsible

for giving support to the Privacy Commissioner and complying with general/specific

orders of the privacy commissioner.

10. Verification

Existing Provisions:

· Liability of accuracy: A body corporate is not responsible for the authenticity of

the personal information or sensitive personal data or information supplied by the

provider of information. Rule 5(6)

**Source - Report of the Group of Experts on Privacy