Due diligence

Pixels & Privacy- The Delhi High Court’s Landmark Ruling on reporting Non-Consensual Intimate Images

November 12, 2023 — Leave a comment

Mrs. X v. Union of India & Ors. (2023:DHC:2806)

Facts of the Case-

  1. The Petitioner herein is a married woman with a nine-year-old son. In 2019, the Petitioner became acquainted with the Accused who approached her through social media and introduced himself as a British Chartered Accountant. In July 2020, the Accused came over to Petitioner’s place and forced himself upon her. He allegedly clicked explicit pictures of the Petitioner, but also transferred to himself from the Petitioner’s phone her explicit pictures, that had been taken for the purpose of sharing with her husband. 
  1. The Accused involved the minor son of the Petitioner in various sexual acts as well. Thereafter, the Petitioner lodged a complaint against the said Accused at P.S Lajpat Nagar, and on the basis of which, a Zero FIR was registered. The Accused threatened the Petitioner that he would leak her sexually explicit photographs on various pornographic websites and that he would kill her son if she did not pay huge amounts of money to him. 
  1. The Petitioner was extorted into paying lakhs of money to the Accused, along with handing him all her jewellery. As the Petitioner was unable to pay any more money, the Accused leaked the Petitioner’s explicit images on various pornographic websites without her consent. This led to the Petitioner addressing a complaint dated 03.08.2021 to the SHO at P.S Lajpat Nagar. The said complaint stated that the Accused had made a YouTube channel in the Petitioner’s name, and has been posting her explicit videos and photographs on a daily basis. 
  1. Despite approaching the Grievance Cells of various Intermediaries (Google, Youtube, Bing, etc), and filing cyber complaints, her explicit images were not taken down. Thus, the Petitioner approached the Delhi High Court U/A 226 r/w S.482 CrPC, seeking blocking of certain sites exhibiting intimate images of the Petitioner and for registration of an FIR arising out of the complaint dated 03.08.2021.

The Hon’ble Court’s Analysis & Decision-

*The scope of the instant Writ Petition u/a 226 was expanded, and the directions rendered were limited to search engines, MEITY and Delhi Police.* 

  1. The Court analysed NCII (Non-consensual intimate image) vis-a-vis IT Act & Rules- Rule 3(2)(b) of the IT Rules, which lays down the grievance redressal mechanism that is to be followed by an intermediary, more or less defines NCII as any content which prima facie exposes the private area of any individual/shows such individual in full or partial nudity/shows or depicts such individual in any sexual act or conduct/is in the nature of impersonation in an electronic form, including artificially morphed images. Rule 3(2)(b) is not a charging offence. It is only under Section 66E of the IT Act that violation of privacy of an individual is punished with imprisonment which may extend to three years or with fine not exceeding two lakhs, or with both.
  1. Emphasis was supplied on the role of Search engines (para 30): “Search engines do not themselves store and transmit content, they allow users to locate and visit content. Search engines further rank the content in their order of relevance in a bid to solve the user’s query at the earliest. It is relevant to note that as search engines do not host content per se, they cannot take down the content available on a third-party platform. However, they can de-index specific URLs that can render the said content impossible to find due to the billions of webpages available on the internet and, consequently, reduce traffic to the said website significantly.” 
  1. Despite NCII abuse being perpetuated by a third-party user and causing harm to a stranger, the intermediary becomes liable for the conduct of the third-party user. Further, the IT Rules also devise a mechanism for the user/victim to directly approach intermediaries for removal of NCII content without having to obtain a Court order. Therefore, apart from making its own reasonable efforts in not publishing offending content, intermediaries can be requested to takedown offending content after being informed by a Court order or by an order of the appropriate Government or by the user themselves. 
  1. If the individual has the right to informational privacy, it also subsumes the individual’s right to be forgotten which has been held to be the consequence of the dignity of an individual and, thus, a facet of the right to privacy. A Division Bench of the Kerala High Court has recently in Vysakh K.G. v. Union of India and Ors., 2022 SCC OnLine Ker 7337, while adjudicating upon right to privacy vis-à-vis right to information, goes on to observe that, in the digital context, the “right to delisting” and “right to oblivion” are facets of the right to be forgotten. 
  1. The argument that has been advanced in the present case by the learned Senior Counsel appearing for the Respondent (Intermediaries) is that as search engines merely provide access to content and are not responsible for hosting the said content, directions must be rendered to the publishers and not the search engines themselves. It is at this stage that a search engine’s role in ensuring that one’s right to privacy is not contravened comes into prominence, especially with Rule 3(1)(m) which states that the intermediary shall respect all the rights accorded to the citizens under the Constitution, including Articles 14, 19 and 21. It is further essential to state that the continued existence of NCII content on the internet does not serve any public interest and it is punishable under Section 66E of the IT Act. The argument, therefore, put forth on behalf of the Intermediaries was not accepted by the Hon’ble Court. 
  1. Social Responsibility of Search Engines (para 46 onwards)–  The newly amended Rule 3 of the IT Rules explicitly pronounces the obligation of the intermediary to not only “inform”, but to make “reasonable efforts” to ensure that its users do not publish content that is prohibited under Rule 3(1)(b). Thus, any directions given herein fall squarely within the statutory regime with regard to obligations of intermediaries. 
  1. Search engine plays an important role in the dissemination of content and its powers in connecting the said content to the consumers is undeniable. There resides a social obligation in these intermediaries to be proactive in de-indexing such links when it comes to its knowledge that such content is illegal. The Hon’ble High Court found the suggestion untenable that the user/victim must approach either the intermediary in question or the Courts every single time the NCII content is duplicated. Such a suggestion also frustrates the legislative intent behind the IT Rules which devises a time-bound schedule in removal of such content. The Hon’ble High Court further observed that an approach that entails the victim/user having to sift through the internet to identify and then share every URL hosting their NCII is unconscionable.
  1. Moreover, search engines cannot hide under the garb of not possessing the adequate technology to remove NCII content which has been reported without the victim/user having to approach the intermediary again and again. As per the Affidavit of Google LLC, hash-matching technology, generates a unique identifier/fingerprint/hash, exists for the purpose of removing CSAM. This technology allows detection and removal of the matched content that has previously been removed. For the purposes of removal of NCII, once such content has been identified and removed, the hash-matching technology can store only the unique identifier pertaining to the NCII content and in the event that such content is re-uploaded, it can filter out the same by going through its database of such fingerprints. A similar tool has already been built by Meta, and Microsoft. YouTube has also developed CSAI (Child Sexual Abuse Imagery) Match which is used by NGOs and other companies to identify abusive content. 
  1. The Hon’ble High Court stated that entities of the nature of Google and Microsoft, considering their ubiquity, cannot abscond or withdraw from their duties to the public at large in the name of reducing the liability they might incur, the Hon’ble Court was in fact inclined to agree with the submissions of the learned Senior Counsel appearing for Google and Microsoft that any direction that necessitates pro-active filtering on the part of intermediaries may have a negative impact on the right to free speech. No matter the intention of deployment of such technology, its application may lead to consequences that are far worse and dictatorial.
  1. One of the concerns that arises when we consider the right to privacy of an individual under Article 21 is its impact on the right to freedom of expression and speech. This issue requires an interpretation of the phrase “such content” in Rule 3(2)(b) and whether the same means a specific instance of identified NCII, as has been contended by the intermediaries, or all such content of identical nature, as submitted by the learned Amicus Curiae. The Hon’ble High Court observed that construing the phrase “such content” as “all content” is necessary to reduce the burden on the user/victim, however, “all content”, access to which is to be disabled, must pertain to NCII abuse that has already been reported.
  1. Search engines being an intermediary cannot hide behind the argument that they merely provide access to third-party websites as due diligence exercised as per Rule 3 is applicable to all intermediaries. In addition to “actual knowledge” as defined in Shreya Singhal v. Union of India as a Court order or upon being notified by the appropriate Government, Rule 3(2)(b) and (c) of the IT Rules now allows the victim/user to approach the intermediary on their own with their grievance. It mandates a timeline that must be adhered to when it comes to disabling access/de-linking the offending content. If read holistically, if the user/victim is required to approach with each specific URL again and again, this will only frustrate the purpose of the timelines and the grievance mechanism redressal as expounded under the IT Rules. 
  1. It has been submitted that the sustained practice with regard to content removal under the IT Act has been to provide specific URLs, however, this practice fails to account for a grievance redressal mechanism available to the user/victim and it is not justifiable, morally or otherwise, to suggest that an NCII abuse victim will have to constantly subject themselves to trauma by having to scour the internet for NCII content relating to them and having to approach the authorities again and again. Once it has been reported by the user/victim or a Court order or an order of the appropriate Government has been rendered, then the search engine cannot contend that any filtering of the content that is done subsequent to the reporting or the Order is proactive in nature; it can only be termed as being in pursuance to the reporting of existence of such content specific to an individual or a judicial Order. 
  1. The fact that search engines do not host or publish or create content themselves is of no consequence when it comes to the question of removal of the access to the offending content. It is undeniable that they do have the ability, the capacity, and the legal obligation to disable access to the offending content; this responsibility of the search engine cannot be brushed under the carpet on the ground that it does not host content. 
  1. The Hon’ble High Court in the said judgment painfully notes that there is an abysmal absence of a collaborative effort that should ideally be undertaken by the intermediaries and the State. The focus of such entities and authorities should be on the quick redressal of the complaint brought before them rather than the shirking of blame or making submissions on the onerous nature of their duties. In the process of shirking responsibility, precious time is lost in removal of the offending content and enables the offender to keep reposting the content. The endeavour of every entity involved should be to expeditiously resolve the issue. 

Directions & Recommendations by the Hon’ble Delhi High Court:

  1. On approaching the Court for a takedown order in a matter involving NCII content, the Petitioner must, along with the petition, file an affidavit in a sealed cover identifying the specific audio, visual images and key words that are being complained against, in addition to the allegedly offending URLs for ex facie determination of their illegality. 
  1. The Grievance Officer appointed by the intermediary must be appropriately sensitised. The definition of NCII abuse must be interpreted liberally by the intermediaries to include sexual content obtained without consent as well as sexual content obtained and intended for a private and confidential relationships. 
  1. The “Online Cybercrime Reporting Portal”, must have a status tracker for the complainant, commencing from filing of a formal complaint to the removal of the offending content. The portal must display various redressal mechanisms that can be accessed by the victim in cases of NCII. This display should be in all languages specified in the Eighth Schedule. The Portal, along with every other website of Delhi Police, should also display the contact details of each District Cyber P.S present in the NCT of Delhi.
  1. On the receipt of information, noting the nature of NCII content, the Delhi Police must immediately register a formal complaint in order to initiate an investigation and bring the perpetrators to book as soon as possible so as to prevent the repeated upload of the content. 
  1. Every District Cyber P.S must have an assigned Officer who must liaise with the intermediaries against which grievances have been raised by the victim who has approached the Delhi Police and an endeavour should be made to ensure that the grievance is resolved within the time schedules stipulated under the IT Rules. The intermediaries are directed to cooperate unconditionally as well as expeditiously respond to Delhi Police.
  1. A fully-functioning helpline available round-the-clock should be devised for the purpose of reporting NCII content. Operators and individuals manning this helpline must be sensitised about the nature of NCII content and must, under no circumstances, indulge in victim-blaming or shaming the victim. These operators should also have a database of organisations with registered counsellors, psychologists and psychiatrists available for reference to the victims. The Delhi Legal Services Authority may also be apprised and engaged in case the victims need legal aid.
  1. Search engines must employ the already existing mechanism with the relevant hash-matching technology on the lines of the one developed by Meta as has been discussed above. They cannot be allowed to avoid their statutory obligations by stating that they do not have the necessary technology, which is patently false as has been exhibited during the course of hearing. 
  1. The reporting mechanism under Rule 3(2)(c) of the IT Rules must be conveyed to the users by the intermediaries by way of prominent display of the same on the website of the intermediary. It is necessary for users to be made aware of the reporting mechanism and the onus for educating the users lies on the intermediaries.
  1. The timeframe as stipulated under Rule 3 of the IT Rules must be strictly followed without any exceptions, and if there is even minor deviation from the said timeframe, then the protection from liability under S, 79 of the IT Act cannot be invoked by the search engine. When a victim approaches a Court or a law enforcement agency and obtains a takedown order, a token or a digital identifier based approach must be adopted by search engines to ensure that the de-indexed content does not resurface. 
  1. As a long-term suggestion, a trusted third-party encrypted platform may be developed by MEITY in collaboration with various search engines under Rule 3(2)(c) for registering the offending NCII content or the communication link by the user/victim. Accordingly, the intermediaries in question may assign cryptographic hashes/identifiers to the said NCII, and automatically identify and remove the same through a safe and secure process.

The Information Technology Amendment Rules, 2023

June 27, 2023 — Leave a comment

IT AMENDMENT RULES 2023: An Overview

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023

INTRODUCTION 

The aim of this primer is to provide an overview of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (“the Amendment”), which amend the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“2021 Rules”). 

The Ministry of Electronics and Information Technology (“Meity”) amended the 2021 Rules, with the aim  to inter alia regulate the online gaming in India, along with ensuring safety to its users, broadly by governing-

  1. Online games
  2. Online real money game
  3. Permissible online game
  4. Permissible online real money game
  5. Online gaming intermediary
  6. Online gaming self-regulatory body and
  7. Restricting the spread of fake & misinformation. 

THE BASICS

The Amendment defines an ‘online game’ as a game that is offered via the internet, wherein the same can be accessed by any user through a computer resource or upon the access of an intermediary.

STAKEHOLDER ANALYSIS

  1. Online Game

The Amendment classifies online games into three subcategories. They are-

i) Online real money game- The Amendment defines ‘online real money game’ as an online game, wherein the user deposits in the form of cash/kind with an expectation and intention of earning winnings in the form of cash/kind on such deposits made. The Amendment further explains the term ‘winnings’ as any prize in cash/kind distributed to the user of the online game based on their performance in accordance with the rules of the game.

ii) Permissible online game- The Amendment defines ‘permissible online game’ as a permissible online real money game, and also includes: online game(s) which is not considered as online real money game (reference to Rule 4C of the Amendment). With this definition, the ambit of the 2021 Rules gets widened as the Central Government will have the power to extend and direct the applicability of the said rules to even those online games that do not require a user to make a deposit. Hence, even covering casual games under the 2021 Rules.

iii) Permissible online real money game- The Amendment defines ‘permissible online real money game’ as an online real money game that has been verified by an online gaming self-regulatory body under Rule 4A of the Amendment.

  1. Online Gaming Intermediary (“OGI”)

i) With the release of the Amendment, it seeks to classify a new category of intermediary i.e., OGI. The Amendment defines an ‘OGI’ as any intermediary that seeks to give access to one or more online games to users on its platform.

ii) Moreover, what is essential to note from the Amendment is that an OGI is required to comply with not just the due diligence obligations mentioned under Rule 3, but also with the additional due diligence requirements under Rule 4, on similar lines, like that of a significant social media intermediary may be required to do under the 2021 Rules.

  1. Online Gaming Self-Regulatory Body (“SRB”)

The Amendment welcomes another soon-to-be established entity(ies) within the purview of the said rules and allows such entity(ies) to self-regulate the online gaming industry in India, in accordance with the 2021 Rules. This self-regulatory body(ies) is to be called as an ‘online gaming self-regulatory body.’ They are defined as an entity designated by Meity under Rule 4A of the Amendment. The primary responsibility of the SRB is to verify ‘online real money game’ as ‘permissible online real money game.’

  1. Fact Check unit of the Govt.
  • A significant change brought in by the Amendment, (apart from regulating online games and platforms), pertains to curtaining fake and misleading information in relation to any business of the Central Government, which has been hosted, published, and transmitted on the intermediary’s platform. 
  • Further, the Amendment directs Meity to appoint a fact-checking unit of the central government, to identify and restrict the flow of fake and misleading information that pertains to the business affairs of the central government. 

DUE DILIGENCE- OGI

The Amendment aims to bring online gaming intermediaries to the same table along with the social and significant social media intermediaries. Earlier, the due diligence obligations mandated under Rule 3 of the 2021 Rules, only applied to social media intermediary(ies) and significant social media intermediary(ies). However, with the present Amendment, now even an OGI will be required to comply with Rule 3 of the 2021 Rules, including some new requirements/obligations brought in by the Amendment-

  1. An OGI shall not offer its users an online game that results in ‘user harm.’ The term ‘user harm’ has been explained in the Amendment as any effect that is considered detrimental to a user and/or child;
  2. An OGI shall not offer any online game unless it is verified as a permissible online game;
  3. Intermediaries shall not indulge in advertising/surrogate advertising or promoting a non-verified online game, and/or an OGI promoting such a game;
  4. An OGI that offers ‘permissible online real money game(s)’ is required to inform its users about the change in its rules and regulations, privacy policy, or user agreement within a time frame of 24 hours and not later than that;
  5. An OGI that offers ‘permissible online real money game’ shall on receipt of an order, provide all and/or any information under its possession to the government agency for the purpose of investigation, detection, prevention, prosecution of offenses, etc, within a time frame of 24 hours and not later than that;
  6. An OGI is required to prominently publish on its website and mobile app, the name and contact details of the grievance officer, along with the complaint mechanism for the user/victim to follow for addressing their complaints and grievances;
  7. Any person being aggrieved by the decision of the grievance officer of the OGI may prefer an appeal within 30 days from the receipt of such decision to the Grievance Appellate Committee;
  8. The OGI and the SRB are required to comply with the orders passed by the Grievance Appellate Committee and further are required to publish a compliance report on their respective website(s).

ADDITIONAL DUE DILIGENCE- OGI

It is essential to note here that following the 2021 Rules, the additional due diligence requirements under Rule 4, were only supposed to be a compliance obligation for the significant social media intermediary. However, with the present Amendment, even an OGI offering permissible online real money game, irrespective of its user base will be required to comply with Rule 4, including-

  1. Appointing a Chief Compliance Officer;
  2. Appointing a Nodal contact person, who shall be a resident in India;
  3. Appointing a resident Grievance officer, who shall be a resident in India;
  4. Publishing periodic reports monthly in relation to the complaints received, and the course of measure(s) duly taken;
  5. Maintaining a physical address in India, and publishing its details on the website and mobile application;
  6. Implementing a complaint and grievance mechanism for the users’ to file, track and check the status of their complaints;
  7. Verifying the users’ accounts, and marking such users with a visible mark;
  8. Displaying the verified mark obtained after due verification done from the concerned SRB;
  9. Informing the users’ about withdrawal/refund policy, manner of determining and distribution of winnings, fees and charges payable by the users, KYC procedure, measures undertaken for protecting the users’ deposits, and the procedure followed for verification of online real money game;
  10. Mandatory KYC before accepting deposits from the users;
  11. Prohibiting and banning OGI from offering its users’ credit facilities and/or enabling third-parties to finance for the purpose of playing such online game.

ELIGIBILITY CRITERIA FOR SRB

  • Verification of online real money game shall only be done by designated SRB(s). An entity may apply to Meity for being designated as an SRB, provided they fulfil the following-
  1. Entity registered under section 8 of the Companies Act, 2013;
  2. Membership is representative of the online gaming industry;
  3. The number of board of directors shall be 8. They shall have no conflict of interest, and possess skills, experience, and knowledge as mentioned under the said rules, for performing their roles & duties as a self-regulating body;
  4. Must have sufficient funds for performing their duties as a self-regulatory body;
  5. The MoA & AoA of the entity shall be compliant with the 2021 Rules and the Amendment.

VERIFICATION OF ONLINE REAL MONEY GAME

  • Upon receiving an application from an online real money game, the SRB shall verify and declare them as permissible online real money game, provided the following is satisfied-
  1. Such an online real money game shall not contain wagering on any outcome; and
  2. The OGI and such online real money game shall be compliant with Rule 3 and 4, law relating  to the age and competency to contract, along with the SRB’s framework.
  • The rule further clarifies the time-frame given to the SRB shall be three (3) months, in which they have to declare the applicant (online real money game) as permissible online real money. It is further stated that initially the SRB shall only rely upon the information provided to them by the applicant. However, the SRB shall complete the due inquiry with the said time-frame to declare them as compliant and permissible or reject their application in writing.
  • SRB must publish on their website and/or website, a list of all the permissible online real money game, their verification expiry date, suspended and revoked online real money game.
  • SRB must maintain and publish their members’ list on their website and/or mobile application.
  • SRB shall have the powers to suspend and revoke the verification of any online real money game, if they are satisfied that the said online real money game is not in compliance with the 2021 Rules and the Amendment.
  • The online real money game and the OGI must display the verified mark granted by the SRB on their platforms.
  • Every SRB is required to publish on their website and/or mobile application their framework of verifying online real money game, which shall also include-
  1. Measures taken to ensure that an online real money game is not against the interests of sovereignty, integrity and security of the nation;
  2. Measures to ensure that an online real money game does not cause user harm as described under the Amendment;
  3. Measures taken to ensure protection to minors;
  4. Measures undertaken to ensure protection against gaming addiction, fraud, financial loss, etc.
  • The Central government before issuing directions for blocking under section 69A of the IT Act, 2000, against a permissible online real money game, may consider the details published by the SRB.
  • SRBs’ must publish a framework of grievance redressal along with the contact details of their Grievance Officer. The complaints must be acknowledged within 24 hours by the Grievance officer, and resolution must be done within 15 days from the date of the complaint.
  • Meity may suspend and/or revoke the designation of the SRB, if it is satisfied and found necessary. However, the SRB shall be given an opportunity to be heard.

APPLICABILITY & COMPLIANCE OF CERTAIN OBLIGATIONS

The Amendment further states that the compliance obligations upon the OGI shall come into force only after the expiry of three (3) months from the date on which at least three (3) SRBs would have been designated and established in accordance with Rule 4A of the Amendment.

‘ONLINE GAME’ OTHER THAN ONLINE REAL MONEY GAME

The said rules may apply to only those online games, that come under the ambit of online real money game and permissible online real money game. However, if the Central government finds it necessary in the interest and security of the State, public order, and preventing user harm, etc, in those circumstances, even those online game other than online real money game will be required to comply with the following obligations-

  • the obligations under sub-clauses (ix) and (x) of clause (b) of sub-rule (1) of rule 3; sub-rules (1), (5), (6), (7), (10), and clause (d) of sub-rule (11) of rule 4; along with rule 4A.

CONCLUSION

With the significant rise in the development of online games around the globe, the massive user and fan base, along with the amount of money involved were essential to be considered, before regulating this space. However, letting this space go unregulated would be detrimental to the country’s economy and its national security. The notified Amendment aims to promote online gaming by making the industry more accountable and transparent to its users. 

However, there are still some questions unanswered, such as why Meity took this approach to bring online games and the platforms as ‘intermediaries’ and not as ‘publishers’ under the 2021 Rules. Moreover, there are still vagueness and clarifications required in relation to terms such as ‘online real money game’ and ‘user harm’, as the ambit of both these terms is too wide, and might result in overregulation and hamper the growth of the industry as a whole.

Interestingly, the Amendment has been challenged recently in the Bombay High Court, within a week of its notification. The writ petition primarily questions the power of Meity under Rule 3(1) (b) (v), which seeks to appoint a fact-checking unit of the central governing for curbing fake and misleading information relating to the central government’s business affairs.

Lastly, the true impact of this Amendment could only be judged after the provisions come into force, and how the industry reacts toward it.

A Guide to India’s Data Protection Law:         The Digital Personal Data Protection Bill, 2022

March 23, 2023 — Leave a comment

              

Background & Evolution of Privacy in India

A.  The journey of India’s Right to Privacy is more than 6 decades old, and it was only in the year 2017, the Apex Court of the land recognized and declared the “Right to Privacy” as a fundamental right enshrined under Article 21 of the Indian Constitution, 1950, in a landmark decision in  Justice K S Puttaswamy(Retd.), & Anr v UOI& Ors(2017). Little did we know, but this landmark decision changed the course of History.

B.  With the advent of the right to privacy as a fundamental right, a Committee of experts was set up in August 2017, for the purpose of preparing a draft report on Data Protection under the leadership of Justice B.N Srikrishna, (former) Judge of the Supreme Court. 

C. The Experts Committee submitted its report along with a draft version of the legislation in the year 2018 which was titled “Personal Data Protection Bill, 2018” (“PDP, 18”). The PDP, 18 was further analyzed and approved by the Cabinet Ministry on 4th December, 2019. Later, the draft version was introduced in the Lok Sabha, however, the title was changed to- Personal Data Protection Bill, 2019 (“PDP, 19”). 

D.  The PDP, 18 and PDP, 19 were drafted for the same purpose, but both had flaws that did not make them a comprehensive draft version of the law, and hence, none of them were adopted/passed. With the aim to make PDP, 19 more comprehensive, it was referred to a newly constituted committee i.e., Joint Parliamentary Committee (“JPC”).

E. The JPC on 16th December 2021 during the Winter session, released a recommendation report on the PDP, 19 with 81 amendments and 12 recommendations. The recommendation report was released after 2 years to the public and was renamed “the Data Protection Bill, 2021” (“DPB, 21”), with a widened scope of the bill in its entirety (inclusion of non-personal data, etc).

F.   However, the DPB, 21 was withdrawn in the Parliament in the month of August 2022 on the ground that the Government was working on a more comprehensive legal framework, and the present draft version did not allow it.

G. Surprisingly, on 18th November, a 4th draft version of the bill was introduced for public consultation. This time the title of the draft version has been changed to- The Digital Personal Data Protection Bill, 2022 (“DPDP, 22”)

The purpose of this article is to be a go-to guide for your understanding of the DPDP, 22. Here, we will not just summarize the entire draft bill, but highlight all the key provisions from an industry perspective.

PURPOSE:

The purpose of this legislation is to regulate the processing of digital personal data, to enable an individual to practice his/her right to privacy of their personal data, and to ensure that such processing is done for a lawful purpose. 

APPLICABILITY:

The law applies to the processing of “digital personal data” and excludes “offline personal data”, however, if such offline personal data is later digitized then the processing of such data would fall under the ambit of this Bill. 

Further, from the territorial scope of the DPDP, 22, it applies to data processing both within and outside the territory of India. For the law to apply outside the territory of India, it is essential that such processing of digital personal data is related to-

  • Any profiling of a Data Principal within the territory of India; or
  • Any activity pertaining to offering goods/services to users (Data Principal) inside the territory of India.

The provisions of the DPDP, 22 shall not apply to-

  • Any non-automated processing of personal data;
  • Offline personal data;
  • Processing, done by an individual for a personal/domestic purpose;
  • If the personal data of an individual has been existing in a record for at least 100 years.

Surprisingly, there is no classification of the personal data provided in the DPDP, 22. However, the sector-specific regulations in due time may establish additional requirements pertaining to safeguarding such personal data. Lastly, the DPDP, 22 does not apply to non-personal data as compared to its previous version.

CONSENT 

  • The DPDP, 22 under section 5 states the grounds on which the Data Fiduciary shall process the personal data of the Data Principal. The processing under the DPDP, 22 shall be considered lawful only when the Data Principal has given consent or the consent is deemed to have been given.
  • The DPDP, 22 under section 7 defines the concept of “Consent” and states- that when the Data Principal has freely given, a specific, informed, and unambiguous indication to a Data Fiduciary for processing their personal data for a “specific purpose.” However, the same must be shown through an affirmative action by the Data Principal.
  • Moreover, the DPDP, 22 under section 6 provides for a mandatory requirement that must be fulfilled by the Data Fiduciary on or before seeking the consent of a Data Principal. The Data Fiduciary is mandated to provide an itemized notice to the Data Principal in clear language, which shall contain the description pertaining to the data that is required to be collected from the user and the purpose behind it.
  • In the itemized notice that is issued for seeking/requesting consent from the Data Principal for processing their personal data, the contact details of the authorized person/data protection officer of the Data Fiduciary must be mentioned. The Data Principal shall have the right to access such itemized notice requesting consent in either English or any language specified in the Eighth Schedule to the Constitution of India.
  • It is also essential to note that any additional personal data which is not necessary for the performance and fulfillment of a contract/agreement between the Data Principal & Data Fiduciary. In such scenarios, the Data Principal shall be free to refrain from giving consent.

DEEMED CONSENT

Here are some instances mentioned in the DPDP, 22 wherein, it is presumed that the processing of personal data is based on Deemed Consent. Deemed consent has been discussed under section 8 of the DPDP, 22. At present the DPDP, 22 provides 9 instances wherein consent is considered as deemed, and they are-

  1. In an event wherein, the Data Principal voluntarily provides their personal data to the Data Fiduciary, and the same is reasonably expected from them;
  2. In an event, wherein, the processing is based on the performance of any function under law, or provision of any service, or benefit to the Data Principal/issuance of any certificate/license or permit to any action of the Data Principal by any State institutions or agencies;
  3. Processing done in relation to compliance with court order(s)/judgement(s);
  4. Processing done in relation to medical emergency pertaining to threat to life/health of the Data Principal or any other person;
  5. Processing done in relation to provide medical treatment/assistance to people during epidemic, outbreak, and/or any such threat to public health;
  6. Processing done in relation to taking safety measures for providing services to people during disaster, and/or breakdown of public order;
  7. Processing done in relation to employment-related purposes;
  8. Processing done on the grounds of public interest;
  9. Processing done for any fair and reasonable purpose- wherein the legitimate interests of the Data Fiduciary outweigh any adverse effect on the Data Principal, public interest and the reasonable expectations of the Data Principal.

It is essential to note here that the notice mentioned under section 6 is not mandated where deemed consent is given by the Data Principal.

CROSS-BORDER TRANSFERS

The DPDP, 22 also lays down a provision for the cross-border transfer of digital personal data. Although, it does not specify or name which countries/territories will be treated as “trusted geographies” for permitting the cross-border transfer of digital personal data. However, section 17 states that the Central Government will only allow and notify those countries/territories for cross-border transfers, based on an assessment as it may consider necessary.

EXEMPTIONS

Moreover, under section 18, there are some exemptions listed out, which simply means that the provisions of the DPDP, 22 shall not apply, except section 9(4)- which states that the Data Fiduciary and Data Processor shall take all the reasonable security measures in order to mitigate potential breaches. The exemptions have been listed below-

  • Wherein, processing such personal data is essential to enforce a legal right/claim;
  • Wherein, the processing of personal data is in the interest of prevention, detection, investigation/prosecution of any offence/contravention of any law;
  • Wherein, the processing of personal data is done by the court of law, tribunal, quasi-judicial body, etc;
  • Wherein, the personal data belongs to an individual outside the Indian territory and is processed based on a contract between an individual from outside the Indian territory and a person based in India.

The DPDP, 22 further permits the government to exempt any of its agencies from the application of this law on the ground-

  • In the interest of the sovereignty & integrity of India;
  • State’s security;
  • Friendly relations with foreign States;
  • Public order.

OBLIGATIONS OF Data Fiduciary

The DPDP, 22 under section 9 onwards up to section 11 states the obligations of Data Fiduciary. 

  • Under section 9– This provision deals with the general obligations, such as the Data Fiduciary shall be held solely responsible in relation to complying with this law, even in cases wherein the data is processed on behalf of them by Data Processors and/or by another Data Fiduciary.
  • ensuring that the personal data processed is accurate and complete especially when such data is likely to be disclosed to another Data Fiduciary and/or the data processed will be used to make decisions that affects the Data Principal itself.
  • The Data Fiduciary shall also implement both technical and organizational measures with the aim to ensure complete compliance with this law. The Data Fiduciary and Data Processor shall ensure that they take all the possible reasonable measures and safeguards to mitigate potential breach.
  • In an event of a personal data breach, the Data Fiduciary or the Data Processor (as the case may be), shall notify the Data Protection Board along with each affected Data Principal.
  • The Data Fiduciary shall ensure that the personal data of the Data Principal is not retained once the purpose behind such processing is fulfilled, and/or where retention of the data is no more required for any legal/business purpose.
  • The Data Fiduciary is also required to publish the contact details of the data protection officer or the authorised personnel who may answer on behalf of the Data Fiduciary to all such questions/queries posed by the Data Principals pertaining to the processing of their personal data. They are also required to ensure a mechanism is at place that shall focus on grievance redressal.
  • Under section 10– These provisions lay out the additional obligations of the Data Fiduciary pertaining to the processing of children’s personal data.
  • Under the DPDP, 22 for processing of a child’s (anyone who has not completed 18 years of age) personal data, the Data Fiduciary is mandated to seek the parental consent, and only after obtaining the same, they may process the child’s data.
  • Furthermore, a Data Fiduciary shall not process a child’s personal data in scenarios where such processing will likely cause harm to that child.
  • A Data Fiduciary shall not track nor monitor a child’s behviour or direct targeted advertising upon a child.
  • Under section 11–  This provision states the additional obligations of a Significant Data Fiduciary. However, before getting into the obligations, we need to understand who exactly falls under the ambit of a “Significant Data Fiduciary.” 
  • A Significant Data Fiduciary is any Data Fiduciary or a class of data fiduciaries that are notified by the Central Government. They shall be notified based on some factors such as- the amount of personal data that is being processed; the risk of harm that the Data Principals are likely to face; its impact on the integrity & sovereignty, security, and public order of the nation.
  • Furthermore, a Significant Data Fiduciary is required to appoint a Data Protection Officer, and an independent Data Auditor, and is further mandated to take measures such as Data Protection Impact Assessment, etc.

RIGHTS & DUTIES OF Data Principal

The rights and duties of the Data Principal have been laid down in Chapter 3 of the DPDP, 22 starting from section 12 up till section 16. Here is the list of rights mentioned under section 12–

  1. The Data Principal shall have the right to seek confirmation from the Data Fiduciary on whether their data has been processed or is being processed by them;
  2. The data subject shall have the right to seek the summary of their data that has been processed or is being processed by the Data Fiduciary;
  3. The Data Principal shall have the right to know with whom all the Data Fiduciary has shared their personal data, along with the categories of personal data that has been shared.

Under section 13– The Data Principal shall have the right to correction and erasure of their personal data that is with the Data Fiduciary.

Under section 14–  The Data Principal shall have the right to seek grievance redressal by registering a grievance with the Data Fiduciary. Moreover, if the Data Principal is not satisfied with the response, or does not receive any response from the Data Fiduciary, then in such scenarios, the Data Principal may register the complaint at the Data Protection Board.

Under section 15– The Data Principal shall have the right to nominate anyone, who shall exercise the rights of a Data Principal under the DPDP, 22 after the death/incapacity of the Data Principal.

Under section 16– The Data Principal is obliged under DPDP, 22 to perform certain duties such as-

  1. Shall ensure that they do not register any false/frivolous complaint with the Data Fiduciary and/or at the Data Protection Board;
  2. Shall not furnish false documents, impersonate another person, and/or suppress information while applying for any document, service, proof of identity, etc.
  3. While exercising their rights under section 13 pertaining to correction and erasure, Data Principal shall furnish verifiable and authentic information.  

DATA PROTECTION BOARD OF INDIA

The DPDP, 22 also proposes to establish a Board i.e., the Data Protection Board of India to pronounce decisions against complaints filed by Data Principals, to impose penalties for non-compliance not exceeding Rs. 500 crores, and perform all such functions as and when notified by the Central Government in due time.

PENALTIES

Here are the financial penalties listed out under schedule 1 of the DPDP, 22 for non-compliance with the provisions of the law.

  1. In an event, wherein the Data Fiduciary or Data Processor fails to take reasonable security measures in order to mitigate/prevent a data breach. For such incidents, a penalty of up to Rs. 250 crores shall be imposed.
  2. Where the Data Fiduciary fails to notify the Data Protection Board & the affected Data Principals about the breach. For such incidents, a penalty of up to Rs. 200 crores shall be imposed.
  3. In an event, wherein the Data Fiduciary fails to comply with the additional obligations pertaining to the processing of a child’s personal data (section 10). For such incidents, a penalty of Rs. 200 crores shall be imposed.
  4. Wherein, the Significant Data Fiduciary fails to comply with the additional obligations mentioned under section 11. In such scenarios, a penalty of up to Rs. 150 crores shall be imposed.
  5. In an event, wherein a Data Principal fails to comply with the duties mentioned under section 16. In such scenarios, a penalty of up to Rs. 10 thousand shall be imposed.
  6. Non-compliance with the provisions of the DPDP, 22 except for those listed above, shall lead to a penalty of up to Rs. 50 crore.

Privacy concerns abound in the official Beijing 2022 Winter Olympics app

March 23, 2023 — Leave a comment

Introduction

The 2022 Winter Olympics were held in Beijing, China from 4th Feb-20th Feb 2022. Even before the start of the Winter Olympics 2022, China was being criticised and accused of allegations pertaining to human rights violations and other related controversies globally. Around 180 human rights groups were of the opinion that all the leaders globally and the governments should boycott the Winter Olympics in Beijing as the Chinese government was held solely responsible for the genocide of the minority communities in China. The Canadian government along with the UK and the United States government were the ones who decided to diplomatically boycott the games; this meant that these countries would only send their athletes to be a part of the games, whereas the government delegates and officials won’t either attend the games or be a part of the event.

But was this the only issue raised by the officials?

The other issue that was largely concerning the majority and the same was being discussed everywhere from news channels to even the U.S Olympics and Paralympics committee was related to the ‘privacy’ of the athletes as well as the ones who were planning to attend the games in Beijing.

The catch to this privacy-related issue is that those who were preparing to attend the 2022 Winter Olympics had to compulsorily download a mobile application called “MY2022”. This app had multiple security flaws and resulted in privacy concerns that were very much applicable to both the domestic as well as international athletes along with the ones who were merely attending. 

What is MY2022?

MY2022 is a mobile application that was made a requirement for all the athletes and the attendees of the Winter Olympic Games. The app performs multiple functions right from real-time chat with your contacts along with that video and audio options are also available for the users; users have the option to even share files with each other, as well as the app notifies its users about the weather and news updates. Furthermore, the app is also used to submit health customs information of those who are visiting China from other nations. This includes submitting the user’s passport details, demographic information along with travel, medical history (if any), COVID-19 vaccination status, and lab test results including users’ daily health status.

China’s intention behind collecting this information as per their official statements was to prevent the transmission of COVID-19 and hence was a part of the COVID protocol that was being followed during the Winter Olympics.

It was prescribed that all the athletes and attendees should download the app 14 days prior to their visit to China, and were required to monitor and submit their health information in order to track their health status on a daily basis. Many countries have relied on similar apps in order to track the health status of their citizens and the foreign travelers, especially if we take India as an example here, the app named ‘Aarogya Setu’ was extensively used and is even used today in order to monitor the health status of the people in India.

As per the Chinese government’s guide on the Olympic games, it was discovered that the MY2022 app was created by the Beijing Organising Committee for the 2022 Winter Olympics. However, later through public records and the App Store’s information, it was revealed that the owner of the app is a state-owned company called the ‘Beijing Financial Holding Groups’. continue reading

A quick guide on the concept- Privacy by Design

January 21, 2023 — Leave a comment

Introduction

The concept of data privacy has been in papers way before the coming of the digital era, and so does the concept of Privacy by Design, which was introduced in the 90s by Ann Cavoukian, former Information and Privacy Commissioner for the Province of Ontario.

Privacy by Design (“PbD”) defines the nature of Privacy and how we must approach it. It means that at the beginning of an organization or a project’s existence, privacy must first be implanted, enabled and implemented into its very own foundation. Rather, than just looking at it from a compliance point of view and merely as a remedy against breaches and risks. Moreover, it should be adopted as a culture, and not as an add-on to your shopping cart list.

Let’s dive into how to implement PbD within an organization with its Seven foundational principles-

  1. Privacy measures should be “Proactive not Reactive”; “Preventive not Remedial”

Taking this viewpoint, it can make your team’s life easy and save your organization from huge penalties, here’s why- This principle discusses the very nature of privacy, and how it benefits and add value to an organization when it is proactively utilised. The reasoning behind the implementation of privacy should be to detect and minimize/eliminate potential threats, not wait for the potential threats to cause harm first, and then implement security measures. That’s not how privacy should work. An example of this could be- Conducting a Data Protection Impact Assessment before processing or Transfer Impact Assessment before cross-border transfers.

  • You must enable “Privacy as the Default setting”

This simply means that privacy must be implemented into the systems and processes as a default setting and by putting privacy at the forefront. Although, this looks the toughest to crack, however, it only minimizes the potential cyber risks. By enabling privacy as a default setting, your organization aims to achieve this by limiting the collection of data, not retaining the data after its purpose and ensuring that no users are required to act separately to protect their personal data. For example- having the personalised ads or precise location option turned off as a default setting.

  • “Privacy embedded into Design”

Privacy must be implemented into the skin of the products/services that you offer from its initial stage. It should be treated as an integral part of your business practice. Lastly, it shouldn’t be considered an add-on or a strategy taken as countering measures against risks. In simple terms, this principle states that an organization must thrive to provide privacy at all stages while offering the users with its products/services. For example, ensuring an end-to-end encrypted platform, giving users the choice of receiving targeted ads, etc.

  • Full Functionality – Positive-sum, Not Zero-sum

The fourth principle simply states that privacy by design is an approach which seeks to accommodate all legitimate interests, dismissing unnecessary trade-offs, and avoids all such false dichotomies such as privacy v security, etc, ensuring that by implementing privacy by design an organization could achieve a win-win scenario. For example, if an organization limits and minimizes data collection and data sharing, and destroys it according to its retention policy. This can ensure fewer security flaws, and enable users’ privacy to be at the forefront, without making any unnecessary trade-offs.

  • End-to-End Security – Full Lifecycle Protection

This principle simply states that data privacy & protection goes hand in hand, and shall be delivered during the entire lifecycle of the data. An organization must ensure all reasonable security measures are taken that are industry-recognized right from data collection to deletion. For example- During a cross-border transfer of personal data, an organization must conduct a transfer impact assessment in order to assess and analyse the potential risks, and only then move ahead with such transfers.

  • Visibility and Transparency – Keep It Open

This principle lays out that the privacy of the users means complete visibility and transparency of their data. To ensure this every organization must thrive to have easy-to-ready privacy and cookie policies. This could help users to understand exactly what happens with their data. Always remember, privacy is a trust-building initiative and has a direct impact on every organization.

  • Respect for User Privacy – Keep It User-centric

And, lastly, privacy only comes by putting consumers/users at the top. Organizations must keep in mind that at last they are processing their users’ data, and must ensure to keep it consumer-centric by granting them control and visibility over their data. Data privacy should come in line with respecting the users’ experience throughout. For example- a user must have the right to seek correction & erasure of his/her data from any platform.

How to draft quality agreement for a pharmaceutical company

April 3, 2022 — Leave a comment

First published on Ipleaders

Introduction

A contract in any industry or for any business is one of the most essential components, and carrying on a business or any kind of collaboration without a contract can be a nightmare for all parties involved. When parties enter into a contract, all their obligations and other clauses of the contract become binding upon each of the parties, and in case of a breach of any of the clauses, the one committing the breach becomes liable. So, contracts make the parties accountable to each other, hence, the quality of work gets better.

As we are living in this age of pandemic, there has been a rise in the consumption and production of drugs. From hoarding and black-marketing of medicines, the courts directing the concerned authorities to increase the production to the incredible growth in stock prices of pharmaceutical companies, within a single year we have seen and experienced so much. In this article, we will be focusing on quality agreements, as the name suggests, these agreements are extensively used for quality assurance of the drugs in the pharmaceutical industries. 

What is a quality agreement?

The quality agreement isn’t similar to any other agreement, rather these agreements have come under scrutiny from the concerned authorities worldwide, especially in India, as third party drug manufacturing hasn’t been defined under the Drugs and Cosmetics Rules, hence the liability of the third party involved in such agreements was a big question. 

Quality agreements are entered into by two or more people for the purpose of manufacturing, supply, and service while maintaining the quality of drugs and not compromising on them. These agreements are made primarily to comply with the quality of the drugs that are to be manufactured and also to comply with the regulations imposed by the government and/or to comply with the statutory obligations or as per the concerned authorities. 

One of the reasons why parties enter into such agreements is to expand their reach in the global market, to survive in the age of globalisation, businesses outsource contractors for manufacturing drugs at cost-efficient prices. India is one of the examples, where foreign pharmaceutical companies land up in the search of cheap labour and resources. Generally, the quality assurance department headed by the quality risk manager, along with the legal department of the pharma company and the contractor/vendor (manufacturer, laboratory, etc), collaborate together while drafting a quality agreement.

The scenario in India : before and after the 2020 amendment

In India before the 2020 amendment of the Drugs and Cosmetics Rules (“DCR”), drug marketers/distributors were not legally recognised which created huge confusion whether these quality agreements were legally enforceable or illegal in India or not, as the earlier rules didn’t have any provisions relating to the liability of the third party involved in such arrangements.

After the amendment to the DCR, contract manufacturing of drugs especially in India has become more transparent and there is more accountability of the parties involved in such agreements. From now on, both the drug manufacturer as well as the drug marketer or the distributor is now liable under the Indian laws. Hence, these agreements must be made with proper assistance and cooperation from all the parties in order to comply with all the required regulations as well as to provide the customers with the best possible product.

Why do parties enter into such agreements?

Quality agreements are stand-alone agreements, and they shouldn’t be read like an addendum or an attachment of the main agreement. This is because of the format and the language used while drafting these agreements. Regarding the question as to why parties enter into such agreements, while having the main agreement, then why do the parties need another/separate agreement, while these questions are normally asked by thousands of contract drafters. Now this question doesn’t have a single answer, however, the answers or the opinions are convincing. 

Now as we know that these agreements’ main purpose is to make sure that the quality of the product is as per the recognised standards and are not compromised for the sake of making profits, as these agreements deal with drugs, and drugs are essential goods/commodities in a person’s life. While manufacturing them, or testing them at laboratories, one has to keep in mind that they are doing a public service, although the only way to encourage these industries is by giving incentives, and in order to promote such development in these areas, it can only be done if these industries are not restricted by the authorities and are given reasonable freedom to make profits. The United States of America is the right example, as it doesn’t have any regulations regarding drug pricing, hence, the prices of drugs are way too high, as compared to the Indian drug’s prices, as India has a regulation regarding drug pricing.

Therefore, we can understand that the pharma companies go under huge pressure because of the government intervention or the laws laid down, the compliance issues and different approvals that these companies have to undergo in order to manufacture and as well as while releasing these drugs into the market. 

Things to keep in mind while drafting a quality agreement 

While drafting a quality agreement, the parties have to keep few things in mind:

1. Scope and purpose clause

This is the most important clause in the entire agreement, as it states the entire scope of work and purpose or the intent of the parties for which they have agreed to enter upon this agreement. This clause needs to be drafted properly keeping in mind the target and the final goal for which the parties have joined or collaborated. In case this clause hasn’t been drafted precisely or the parties haven’t drafted the clause as per their verbal agreement, then such situations can lead to major differences between the parties further creating disputes/conflicts between the involved parties. It is very important to customise the clause as per the mutual understanding of the parties so that future conflicts can be easily minimised.

2. Definitions and interpretation clause 

In this clause, the terms which have been used multiple times or the terms that convey more and have a wider ambit as per the agreement. Such terms can be mentioned under this clause so that the parties can easily interpret and understand such terms more comprehensively, therefore minimising confusion and conflicts regarding the interpretation of such terms and clauses.

3. Roles and responsibilities clause

In this clause, parties should mention their roles and responsibilities as per the agreement. It is very essential that parties elaborately mention each of their roles as well as their responsibilities to contribute and fulfill the purpose and scope of the work as per the mutual agreement between the parties. In case if this clause is taken for granted and vaguely drafted, it can result in differences between the parties, and ruin the relationship of the parties by creating conflict between them. To prevent such disputes relating to the role or responsibility of any of the party, this clause should be drafted keeping in mind all the formal discussions, facts stated by each of the party, promises/covenants by each of the party, purpose, and scope of the agreement

4. Resolution of disagreements clause

Now it can’t be denied that if parties are entering into an agreement, though the parties know that they have to cooperate with each other and fulfill all their roles, responsibilities and further comply with all the clauses and the laws, it obvious that during the term of the agreement, there will be a time that parties won’t agree with each other and such disagreements can be regarding the quality of the drugs, while auditing or inspecting, etc. During such disagreements, parties will have to resolve and come to a conclusion else the purpose of the agreement would get defeated and to prevent such events, it is mandatory to include a clause stating a mechanism or process or steps to resolve such disagreements and differences between the parties.

5. Assignment clause 

In this clause, parties have to mention that neither of the parties shall have the right to transfer or assign their roles, responsibilities, and promises/covenants to any other third party, as it would defeat the present agreement’s purpose. 

6. Term and termination clause

Under this clause, the parties shall mention the term of the agreement, and whether the same agreement can get revised or extended during or before the expiry of the term. Further parties can include or make a separate clause regarding the termination of the agreement, whether the agreement can or cannot be terminated unilaterally, and under which circumstances, the parties will have the power to terminate the agreement, etc.

Parties can include other clauses too as per their preference and can customise the entire agreement as per their mutual understanding. As there isn’t any proper formatting of a quality agreement, but certain clauses are a must, and the most important thing that the parties should always keep in mind, whether they are drafting a quality agreement or any other type of agreement, the parties should draft the agreement in such a way that there isn’t any space which would lead to communication barriers or restrict communication between the parties, as communication is the major factor that would lead to a success story or a major failure!

Conclusion

By now you might have an idea about what a quality agreement is, why parties refer to such agreements, and the important or the basic clauses that are to be included while drafting one. Now one more important thing that shouldn’t be ignored while researching or drafting or assisting someone in drafting a quality agreement is that these agreements should be drafted keeping mind the parties that are involved, other factors such as the scope of the work, the control under the agreement, as to who has the major control in the agreement, the ways or modes of communication, the importance of inspection and auditing with the respect to the materials used, basically the entire agreement shouldn’t be an online template or a previously used template, rather it should be a customised agreement catering the needs of the parties because resolving conflicts can get expensive at times.

All you need to know about a broadcasting agreement

March 31, 2022 — Leave a comment

First published on Ipleaders

Introduction 

Broadcasting is a process wherein an art, a performance, or an event that has either been recorded or which is currently being recorded gets telecasted to a large and wide audience worldwide through TV signals, radio signals or through the Internet.

We are living in a digital world, where everything has been digitalised, in fact one of the major reasons is Covid-19, the entire world has completely shifted to virtual zone either for work-related purposes or for entertainment purpose.

Have you ever wondered, when you watch a live event, let’s say a Live Cricket match or Live Wrestling, even though you haven’t purchased the tickets for the event, but you’re still able to watch the same event at your comfort in your pyjamas, and still the Sports and Entertainment Industry manages to earn in Millions and sometimes in Billions! But how? Is broadcasting that expensive and easy money-making for these Industries?

In this article, we will discuss everything related to a broadcasting contract in great detail.

What is a broadcasting agreement?

A broadcasting agreement is an agreement entered by two or more parties for the telecast/broadcast of the specified event as mentioned in the agreement to reach maximum or a wide audience through different modes of telecast either through live streaming, through TV signals, subscription-based broadcast, and/or via internet signals, or radio signals.

A broadcasting agreement is entered between the event’s host or the content creator or the producer of the event (“Creator”) with the broadcasting agency(s) (“Broadcaster”). The Broadcaster has to telecast the event on the platform(s) as mutually agreed by the Creator and the Broadcaster (“Parties”). The Creator of the event grants a license to the Broadcaster to either have the exclusive rights relating to the broadcasting of the event or non-exclusive rights, as per the said agreement. 

The term “broadcast” has been defined under Section 2(dd) of the Copyright Act, 1957 as, communication to the public either via wired or wireless medium and also includes re-broadcast.

In a broadcasting agreement, the Content Creator/the performer or the producer is the sole owner of the rights relating to the Intellectual Property, as it is the Creator’s original work, hence it is his property, moreover a broadcasting agreement doesn’t mean to transfer the ownership of the Intellectual Property from the Content Creator to the Broadcaster. It merely gives the Broadcaster the license to distribute the said content/performance/event with the public at large through its network.

Importance of such agreements

To understand the concept of a broadcasting agreement, we need to first clarify two basic prerequisites, i.e., Why are these agreements/contracts made? And secondly, why broadcasting is important for this day and age?

As we know, through agreements, parties are bound by rights and duties as mutually agreed by them. To fulfil any purpose, an agreement gives the said purpose legal importance and makes it enforceable at the court of law, if in case an event of default occurs. To secure and protect oneself from fraud, it is very important to enter into an agreement before accepting any commercial or non-commercial deal.

Coming to the second part, as to why broadcasting is an important service is because it is considered to be a public service, and public service is for the greater good, which is considered to be a moral obligation of both the State as well as of an individual, or associations/corporates, etc. Most importantly, through the broadcasting services huge amount of income is generated within the economy as through broadcasting an event, the scope of viewership and audience gets enlarged, which is good for both the sport, the players as well as for the nation as a whole as it gives recognition to both the nation as well as the players get recognized for their efforts. 

A huge amount of income is generated through broadcasting, lets take few examples, the FIFA World Cup, ICC World Cup, IPL, WWE, UFC, Davis Cup, The U.S Open, etc are some of the sports wherein the broadcasting rights are sold in Millions of Dollars. If we take examples of Movies or TV series instead of sports, in 2015 Netflix acquired the streaming rights of Friends for $100M.

Now if parties are willing to spend a hefty amount of money for acquiring streaming or broadcasting rights, it will be prudent enough to secure the said transaction by entering into an agreement. Hence, the broadcasting agreement is not only a vital part of the transaction but it binds the concerned parties together and makes them legally bound to all the obligations mentioned as per the agreement.

Important clauses and provisions of the agreement

In a broadcasting agreement, few operative clauses are mandatory to be drafted and they are-

  1. Purpose clause- A purpose clause is drafted to mention the purpose behind the said agreement. The parties have to rightfully mention the exact purpose of the agreement, and the purpose shall not be illegal, otherwise the entire agreement would become void.
  2. License clause- In this clause, it is to be mentioned that the Creator/Producer or the owner is granting a license to the broadcaster to stream/telecast either live or recorded session of the event on its network(s) and platform(s). Whether the agreement is an exclusive broadcasting agreement or not, shall also be mentioned here. Everything relating to the broadcasting license shall be mentioned in this clause. 
  3. Habendum clause- In this clause, all the rights relating to the property (Intellectual property, in this case) shall be mentioned, if in future there is any confusion relating to the title and ownership of the Intellectual property, then this clause can be a life-saver.
  4. Representations and Warranties- In this clause, both the parties shall state the fact and shall comply with the such represented fact individually, so that in case if anything happens contrary to the said and accepted facts, then the parties shall be responsible individually. 
  5. Rights and Obligations clause- In this clause, all the rights and obligations of both parties shall be mentioned clearly.
  6. Dispute resolution clause- This clause is very crucial, and needs to be drafted with clarity, as this clause will determine how the parties shall deal with the future disputes that might happen between them. Parties can mention, “Parties hereby mutually agree that all the disputes arising out of this agreement shall be referred to arbitration”, something like this can be mentioned, also if the parties are referring to arbitration as the mode, then the seat, venue, governing law, number of arbitrators, whether opted for ad-hoc or institutional arbitration, these shall be mentioned and covered in the clause.
  7. Tenure clause- In this clause, the tenure of the entire agreement shall be correctly mentioned, so that no future conflict or dispute arises concerning the tenure of the agreement.
  8. Force Majeure clause- In case of any unforeseeable circumstance, if any of the parties or party is unable to fulfil its contractual obligation, then such defaults or event of defaults shall not lead to termination of the agreement.
  9. Promotions and Sponsorships clause- In this clause, the parties shall mention, whether any sponsors for the event and the ways of promotions of the event, shall be mentioned clearly.
  10. Event of Default clause- In this clause, all the events that lead to default of the obligations as promised by the parties as per the agreement shall be mentioned. At last, such events shall directly lead to the termination of the agreement.
  11. Termination clause- In this clause, the modes and ways of termination of the agreement shall be mentioned, and anything apart from the modes or ways of termination mentioned in the agreement shall not be considered as termination. All the event of default shall directly result in termination of the agreement, hence the “Event of default clause” shall go hand in hand with this clause.
  12. Payment and Fees clause- In this clause, the modes of payment and the entire fees charged or to be paid by the broadcaster to the Producer shall be mentioned. 

Any law governing the agreement?

A broadcasting agreement shall be governed by multiple laws depending on the place of operation of the said agreement. The laws that shall be governing a broadcasting agreement are-

  1. Intellectual Property law
  2. Contract law
  3. Arbitration
  4. Antitrust/Competition law

Implications of not getting into an agreement

If the parties have no written agreement/contract stating that they have successfully entered into a broadcasting agreement, then the same shall not be enforceable as well as it might get very tough to prove whether there was any agreement between the parties or not. In such situations, where parties act negligently and where the consideration is of hefty sum, there is always a high chance of fraud. To secure oneself and the agreement, it is imperative to have a record of the same in a written format, with the signatures of both parties.

An important thing to be noted down here is that, when parties agree to enter into an agreement, the reason why the lawyers or the contract draftsmen drafts a dispute resolution clause, is because although initially at the time of the agreement, the parties mutually agree to each other’s terms but are unable anticipate any future dispute, and a dispute is something which can never be eliminated, the difference of opinions, etc can’t be foreseen, hence, it is important to have a dispute clause, to protect the rights of about the parties, but if there is no written agreement, the complainant shall have to prove at first that there was an agreement between the parties and when the court of law is satisfied with the fact that there was an agreement, then only the court shall consider the latter allegations.

Hence, having a written agreement is a win-win situation to protect the rights of the parties against any mishap or fraud.

Case laws relating to broadcasting agreements

  1.  Neo Sports Broadcast Pvt Ltd v. New Sanjay Cable Network & Ors-

In this matter, the plaintiff entered into a broadcasting agreement with BCCI. Since BCCI granted a license to the plaintiff to broadcast test cricket matches between India and other countries, the plaintiff found out that the defendants without any authorization or license from the owner or the plaintiff were transmitting and making available the channel to their clients and the Hon’ble Delhi High Court held that, unauthorized transmission of the TV channel to a selected clientele also leads to commercial use of broadcast and leads to making available the content to the public. Hence, violates the broadcasting rights or broadcast reproduction rights of the plaintiff.

  1.  Star Sports India Private Limited vs. Prasar Bharati and Ors-

The Hon’ble Supreme Court of India held in this judgement, that the broadcasting rights of all the sports event that are of national importance must be shared with Prasar Bharti, free of all commercial interest. So, that the entire country can witness the importance of the game, and get inspired by the same, the core element of this judgement was public interest, and where the court is satisfied with the fact, that an issue is directly proportional to the public interest, then the court shall always favour and pass an order or judgement protecting the public interest at large. Hence, in this case, even though the broadcaster entered into a broadcasting agreement, still his rights weren’t protected, since, it was a matter of the public at large.

Conclusion 

By now, you must have understood the entire concept of a broadcasting agreement, and why parties do enter into such agreements; its importance and the implications, if there is no such agreement between the concerned parties. The basic idea behind an agreement is to mention everything at once during the initial phase of negotiations or at the time of drafting. When parties enter into an agreement, then they mutually agree to all the terms and conditions of the said agreement. It is the best way to secure a deal and transaction, especially if the transaction involves huge amount of money.

All you need to know about Representations & Warranties clause

March 29, 2022 — Leave a comment

First published on Ipleaders

Introduction

If you don’t remember this historical news which was at the same time shocking and with mixed reactions, back in 2011, the greatest company of all time “Google” acquired “Motorola Mobility” for $12.5 Billion! In this article, we won’t be discussing the decade-old acquisition, which was later sold to Lenovo in the year 2014 for just $2.91 Billion. Rather, through this article, we will try to understand what an acquisition agreement is all about, the concept, its importance and relevance. Furthermore, we will discuss one of the most essential clauses which would be useful not only for the present agreement but would play a key role in every agreement that you’ll draft. The author has covered important aspects, which would help you in drafting an effective representations & warranties clause for any given agreement. 

What is an acquisition agreement?

We might have come across the term “Acquisition” at least once, but if not, then in simple words an acquisition is when one party acquires the other party, in the presence of an agreement (preferably a written agreement/contract). One of the most common mistakes that we all tend to make is that we use certain words interchangeably but the meaning of those words is opposite to each other in reality, still, we use those words as a synonym to one another. One such example is the usage of “Merger” and “Acquisition”, although both these words are used together, both of them don’t mean the same, rather both are opposite to each other. A Merger is when one person/entity mutually agrees with the other person/entity to merge and form into a new entity or a joint entity. Whereas, in an acquisition, one party/entity buys the other entity (entirely or the majority parts of the entity) to become the owner of that entity. 

An acquisition can be mainly of two types- 1) Asset sale transaction and 2) Stock or equity sale transaction.

In an asset sale transaction, when there is a sale of some/specific assets or all the assets from the seller’s company by the buyer’s company, such transactions are called Asset Sale transactions. The reason behind such transactions could be, when the buyer doesn’t want to buy those specific or certain assets, rather wishes to directly acquire them from the Seller. The other reasons could be when the buyer prefers flexibility, as the best part of these transactions is that the buying entity can avoid risk and unwanted liabilities and assets. Through these transactions, the buyer can specifically buy assets as per the needs of the buying entity and assume liabilities accordingly.

Whereas, in a stock or equity sale transaction, unlike the asset sale transaction where the buyer takes over the assets and liabilities of the selling company. In this, the buyer takes over the ownership of the selling company by buying the stocks or equity from the equity holders. For the selling company, such types of acquisition are preferred over the asset sale because in the present transaction the buyer is buying the ownership which means, all the known and unknown liabilities are getting transferred from the seller to the buying company, hence it’s a relief for the selling company, unlike in the asset sale transaction where the buying company can easily avoid unknown liabilities. 

In an acquisition agreement, it is very essential to draft an effective representations & warranties clause, to protect both the selling company’s and the buying company’s interests, also to protect the purpose of the agreement and lastly, if representation and warranties clause is not studied and drafted properly, it may easily lead to any future dispute between the parties resulting out of a breach which would further impact the relationship of the parties and finally would result in termination and/or with damages to be paid by the defaulting party to the innocent party.

If an acquisition is of asset sale transaction, then under the representations and warranties clause, the list and number of the assets along with the liabilities shall be mentioned and/or annexed in a schedule at the end of the agreement. The selling company should also mention the title and possession of such assets and further should also state that the sale and transfer of such title won’t lead to any breach of a third party’s right, parties can also mention if there is any charge against any of the assets or if any ongoing litigation or dispute is going internally or externally, etc. Similarly with an acquisition agreement dealing with stock sale transaction, in such agreements, ownership of the business, as well as the transfer of the Intellectual property, and any other asset, shouldn’t create any third party dispute, as well as the current financial condition of both parties shall be revealed to each other, etc. These are some examples regarding what all can be included under the representations and warranties clause for an acquisition agreement. Let’s now discuss the meaning of these two terms in more depth.

Meaning and purpose of a representations clause

Representations are statements or presentations of facts, it can be a statement of fact that was true in the past or is true at present. When an entity either the buyer or seller represents the other, this clause induces the other party to enter into an agreement. Representations are used for persuading the parties to enter into an agreement, but the same is not a part of the contract. For example, a representation can be “The Buying Company is duly incorporated under the Companies Act, 2013”. Although this is just a statement of fact that is true at the present moment but doesn’t form the purpose or scope of this agreement, rather it is just a statement from which the parties were persuaded and hence decided to enter into an agreement. 

More simply, we can say that a representation is a presentation of facts from the past to the present defining the status of an entity. If such facts are hidden from a potential buyer or an investor, it may further lead to a dispute in the near future. From a buyers perspective, the scope of representations and warranties clause should be drafted in a wider manner, so that there aren’t any restrictions when any claims are made from the buyer’s side.

Meaning and purpose of a warranties clause

Now we know, what a representations clause means and its importance as it is what a potential buyer or an investor would see first and then only he might bet on an investment that he is making and it is only possible through such clauses that a buyer would be willing to take the risk for his investment upon any company. Whereas warranties are a set of promises from an entity to another, such promises are for the present or for the future conditions as stated under the agreement, and these promises are contractual. So we can say that, when an entity represents something, to induce the other entity to get into an agreement, such representations are promised through warranties. For example: “The seller represents that his products are made from quality resources (this is the representation that the seller is making) and further warrants that if there is any defect in the product, such products can get exchanged or replaced by sending a notice to the seller within 30 days from the date of the purchase” (this is the warranty that the seller is providing). From a seller’s perspective, the scope of representations and warranties clause should be drafted more narrowly, so that the buyer is limited and restricted while claiming damages or any other claims.

Why are the representations & warranties clause so important in every contract?

By now we have discussed the meaning and purpose of both representation and warranty, and how we shouldn’t use both the terms interchangeably, as both the terms carry different meanings altogether. Since we now know the meaning and purpose of such essential clauses, it’s time to understand their importance and what happens when a party commits a breach under this clause.

When parties come into an agreement with each other, it is obvious that each of the parties will share some statement of facts, and further provide promises to such facts (representations and warranties) and only because of such facts and promises, parties will mutually agree to enter into an agreement, now if such statements of facts and promises aren’t written down into the contract or agreement, it might get very difficult for both the parties to claim or counterclaim if any dispute arises during the tenure of the agreement. Both parties should put down all the facts and promises that each of them has conveyed to each other while drafting the agreement. 

Warranty is not just simply a promise, rather it takes the market also into consideration. As the party or the company entering into an agreement needs to check the market condition as to what the other competitors are providing to the potential consumers as a warranty in their agreements.

Hence, it becomes mandatory and essential to have a representations and warranties clause in every agreement as it forms the basis of any agreement.

Under the Indian Contract Act, 1872 (“ACT”), neither representation nor warranty has been defined, but that doesn’t mean that these clauses won’t get governed or get any protection from the Act. If a party fails to fulfil any of the representation or warranty or both, the Act takes care of such events.

Section 18 of the Act, which talks about misrepresentation (without an intent to deceive) either by unwarranted statements or breach of duty or by inducing to make a mistake about the subject matter. A misrepresentation occurs when a party without an intent to deceive the other party, misrepresents a fact, or commits a breach, or innocently causes the party to make a mistake, such events can be termed as misrepresentation. 

The remedy for misrepresentation is provided under Section 19 of the Act, which states that in case of misrepresentation by a party to the other, the contract becomes voidable. The innocent party (party affected) can rescind or revoke the agreement/contract and can also claim compensation. Whereas in an event when the party fails to fulfil his promise or fails to comply with the warranty clause, the innocent party can only claim damages and/or compensation, the right to rescind the agreement is not available in such cases, as agreements/contracts are only voidable in the cases of misrepresentation, fraud and coercion. 

The exception to Section 19, talks about due diligence and if the party has failed to do due diligence before entering into the agreement, the party can’t claim compensation/damages and neither revoke the agreement. 

In the matter of Kopparthi Venkataratnam And Anr. vs Palleti Sivaraman And Anr. on 21 November, 1939–

The Madras High court held, “This Court considered the effect of Section 19 of the Contract Act in Morgan v. The Government of Hyderabad, a case very similar to the one now before us. A vendee had deliberately concealed from a purchaser the fact that he had already granted a lease of the property sold, but the buyer if he had been diligent could have ascertained this. The Court held that the case was not within the exception to Section 19 and the absence of exercise of diligence by the plaintiff was not a defence open to the defendant who had concealed the fact of the execution of the lease in order to deceive the plaintiff and had induced him to enter into the contract. This is the position here”.

All India General Insurance Co. … vs S.P. Maheswari on 5 November 1959, the Madras High Court held that “In the case of warranty materiality or immateriality of the fact warranted signifies nothing. Its incorrectness constitutes a defence to an action on the policy, even though it be not material and be made in perfect good faith. But, in the case of a representation, the insurer can avoid the policy only by proving that the statement is false and fraudulent or that it was false and material to the risk. In other words, it is only a material misrepresentation that can avoid a policy if the truth of the facts contained in the representations is not warranted by the policy”.

“This brings us finally to the topics of nondisclosure or misrepresentation which are practically the positive and negative aspects of the same thing. The effect of misrepresentation on the contract is precisely the same as that of non-disclosure; it affords the aggrieved party ground for avoiding the contract”.

In Esso Petroleum v Mardon, Lord Denning MR concluded-“… it was a forecast made by a party, Esso, who had special knowledge and skill. It was the yardstick (the “e a c”) by which they measured the worth of a filling station. They knew the facts. They knew the traffic in the town. They knew the throughput of comparable stations. They had much experience and expertise at their disposal. They were in a much better position than Mr Mardon to make a forecast. It seems to me that if such a person makes a forecast -intending that the other should act on it and he does act on it- it can well be interpreted as a warranty that the forecast is sound and reliable in the sense that they made it with reasonable care and skill…. If the forecast turned out to be an unsound forecast, such as no person of skill or experience should have made, there is a breach of warranty.”

Sample draft of “Representations & Warranties clause”

In order to explain this draft in a better way, the author has taken Google and Motorola as the parties. Through this sample draft, the viewers will get a better understanding of drafting representations & warranties clauses. Since 2011, Google acquired Motorola Mobility, and they must’ve entered into an acquisition agreement in order to ensure that both the parties are legally bound by all the contractual obligations and to secure their investment. The following is a hypothetical draft between Google and Motorola Mobility-

                                      ACQUISITION AGREEMENT

This Acquisition Agreement (“AGREEMENT”) is entered on ________(effective date) at ________(place). By and between:

Google LLC, an American multinational technology company, incorporated under the American laws, with CIN ________, having its headquarters at ____________ and being represented by its Authorised signatory ___________. Hereinafter referred to as the “PURCHASER” (unless repugnant to the context, this expression shall mean and include successors-in-interest/office and assigns) of the First Part;

AND

Motorola Mobility LLC, an American consumer electronics and telecommunications company, with CIN ________, having its headquarters at ____________ and being represented by its Authorised signatory ___________. Hereinafter referred to as the “SELLER” (unless repugnant to the context, this expression shall mean and include successors-in-interest/office and assigns) of the Second Part;

The Purchaser and the Seller shall be collectively referred to as “PARTIES”.

*Here Recitals can be drafted, and after Recitals, you can start drafting all the important clauses of the Agreement*

NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY MUTUALLY AGREED AND DECLARED BY AND BETWEEN THE PARTIES HERETO AS UNDER:

  • Representations and Warranties 

The Seller acknowledges, represents and warrants to the Purchaser as follows:

  1. Seller is a manufacturing/electronic telecommunication company duly organized, validly existing and duly incorporated under American laws.
  2. The seller has full power and authority to execute and deliver this Agreement hereby and it has been duly authorized and approved by such officers, directors, shareholders, and/or members of the board as required by, and in accordance with the applicable laws.
  3. The balance sheet and income statement of Seller have been prepared as of _________ and is attached at the end of the Agreement as Schedule 1. The balance sheet fairly presents the financial condition of the seller and reflects all assets, properties, debts and liabilities of the Seller and the income statement fairly presents the results of operations of Seller for the period _________. The seller has no liability as of the date of the balance sheet.
  4. Seller shall permit the Purchaser and its representatives at all reasonable times during business hours and without interfering with the normal conduct of the business of Seller, to examine and have full access to all of the properties, books and records of Seller and to copy such books and records.
  5. There is no litigation or proceeding pending against the Seller at any courts, tribunals, commission, regulatory authority, and no controversy is pending or is to the knowledge of the Seller that would affect the right of the Seller to enter into this Agreement.

The Purchaser acknowledges, represents and warrants to the Seller as follows:

  1. Purchaser is a_________ duly organized, validly existing and in good standing under the laws of America.
  2. There is no litigation or proceeding pending against the Purchaser at any courts, tribunals, commission, regulatory authority, and no controversy is pending or is to the knowledge of the Purchaser that would affect the right of the Purchaser to enter into this Agreement.

You can amend, modify and add more points under this clause, every agreement will have representations and warranties clause and it shall be drafted as per the parties understanding and the type of agreement, it is better to draft and negotiate the agreement and customising as per the needs of the parties, rather than just copying clauses from the internet or other agreements, in order to minimise the risk of any future dispute.

Conclusion

By now we can’t deny the fact that the representations and warranties clause plays a vital role in every agreement/contract, and how important it is to draft it clearly without leaving any ambiguity. It is also important that how courts have interpreted and defined both representations and warranties differently, hence, these clauses should be drafted by keeping in mind such judgements and foreseeing some disputes beforehand, and also by negotiating between the parties (negotiation is the key) before finalising the draft. Always have a habit of reviewing your drafts over and over, because only a good draft can prevent claims and future disputes. It is important that you draft the agreement as per the needs of your client, and keep his rights protected under the agreement that you draft. It is also recommended that you should draft your clauses and agreement on your own, and not by copying from the templates available online, as each clause in an agreement will have a different meaning, purpose and scope, hence draft according to your client’s needs, and focus on the businesses of the parties involved in the agreement this is because the representations and warranties clause of a Franchise Agreement, shouldn’t be drafted just like or similar to an Intercreditor Agreement.

Your Guide to Managing Data Subject Access Requests

March 29, 2022 — Leave a comment

DSAR means Data Subject Access Request, and this is one of the rights that a data subject or an individual under the General Data Protection Regulation (GDPR) enjoys. 

  1. A data subject is anyone whose data is collected, shared and processed by a data controller.
  2. A data controller is a company, organization or anyone who deals with the personal data/information of the data subjects. 

As per the GDPR, the data subject should be a resident living in the European Union.

Recital 63 of the GDPR states:

“A data subject should have the right of access to personal data which have been collected concerning him or her, and to exercise that right easily and at reasonable intervals, in order to be aware of, and verify, the lawfulness of the processing.”

  1. Reasons to have a DSAR process
S.NOReason(s) for DSAR
1.For confirming whether your organization/business processes the personal data of an individual (referred to as Data subjects).
2.For accessing the personal data/information of a data subject.
3.For determining whether such processing of data of the subject is on a lawful basis or not.
4.For knowing the duration/period for such data which has been stored in your organization/business
5.For enquiring about how the data subject’s personal information/data was obtained by your organization/business.
6.For obtaining information about automated decision-making and profiling from the data subject’s personal information.
7.For obtaining the names and further details of the third-parties with whom your organization/business is sharing the personal information of the data subject(s).

This isn’t an exhaustive list; a data subject has a right under the GDPR and can submit such a request (DSAR) without any given reason to the data controller and at any time. The data controller may only ask questions in order to verify the data subject’s identity. 

  1. Principles for DSAR

GDPR in the entirety is based on the following principles and it is the data controller’s responsibility and obligation to process data in accordance to the principles laid down-

Article 5 of the GDPR lays down the following principles-
Lawfulness, fairness and transparency
Purpose limitation
Data minimisation
Accuracy
Storage limitation
Integrity and Confidentiality
Accountability

Whereas, the DSAR is based on the rights granted to the data subjects under the GDPR-

Article(s)Right of the data subject
Art.15This article grants the data subject the right to access his/her personal data held by the data controller.
Art.16This article grants the data subject the right to rectify his/her inaccurate personal data without any undue delay caused by the data controller while giving access. 
Art.17This article grants the data subject with the right to be forgotten without causing any undue delay by the data controller.
Art.18This article grants the data subject the right to restrict the processing of his/her personal data.
Art.20This article grants the data subject the right to transmit his/her personal data to any other controller, and also to obtain his/her personal data in a machine-readable format.
Art.21This article grants the data subject the right to object to processing of his/her personal data.
Art.22This article grants the data subject the right not to be subjected to automated decision making and profiling.
  1. Steps to perform as a Data Controller-
S.No.Steps to be taken
1.The first step should be to verify the data subject’s identity and record the DSAR in the system.
2.The next step is collecting and categorizing the personal data that you have stored.
3.The next step should be to review the data subject’s request in order to understand the DSAR’s requirement. The reply to such a request should be within 30 days as mandated by the GDPR and without causing any undue delay.
4.Before sharing the response to the data subject, it is better to gather all the personal data of the data subject into the response, as the GDPR also encourages remote access to such data.
5.The data controller needs to ensure that the delivery of the data to the data subject should be secure as data leaks and breaches are quite expensive, moreover, it affects the trust among its users and the reputation/goodwill.
6.Once you have followed all the required steps, you are ready to send the response to the data subject
7.It is essential to remind the data subjects about their privacy rights and you may do so by adding a fews lines at the end of your response.

Comparing the stance on Protection of Non-Personal Data in India and EU

March 22, 2022 — Leave a comment

First published on Tsaaro

Introduction & timeline of data protection in India

It is true that soon every business will become a tech business as “data” will be the new source of income. Managing and dealing with data of so many people by businesses and organisations, large or small, cannot be as easy as you may think. Leaving this area unregulated could lead to a global crisis from human rights violation to economic domination in the market, leading to endless privacy and cyber-crimes. Hence, regulating this area should be the prime focus of our nation’s government and any other country’s government where there is no privacy regulation. India recognised “privacy” as a fundamental right back in 2017 in a landmark decision passed by the Supreme Court in Justice K S Puttaswamy v. Union of India.

Right after the declaration of the “right to privacy” as a fundamental right, in July 2017, a Committee of Experts was constituted under the leadership of…continue reading