IS17428 -A New Privacy Assurance Standard in India

Recently, Aditya Birla Fashion and Retail Ltd (ABFR) faced a major data breach on its e-commerce portal. As per the reports, personal information of over 5.4 million users of the platform was made public. The 700 GB data leak included personal customer details like order histories, names, dates of birth, credit card information, addresses and contact numbers. Additionally, details like salaries, religion, marital status of employees were also leaked.  Forensic and data security experts were pro-actively engaged to implement the requisite damage-control measures and launch a detailed investigation into the matter.[1] This demonstrates the need to have wider awareness and establish standardized protocols for personal data management. 

The battle of data protection and privacy currently stands at a juxtaposition with a flourishing data economy. 2021 was a watershed moment in the privacy & data protection dialogue in the country. The need for comprehensive data protection law was louder than ever and there were major initiatives on the legislative and executive front.

In June of 2021, the Bureau of India Standards (BIS) introduced IS 17428 for data privacy assurance. It is a privacy framework designed for organisations to handle the personal data of individuals that they collect or process. The certification provided by BIS for IS 17428 can be deemed as an assurance extended to the customers/users by the organizations of well-implemented privacy practice. The BIS being a statutorily created standard-setting body of our country will bring some welcome change in our data management.  

IS 17428 is divided into 2 parts[2]:

  • Part 1 deals with the Management and Engineering parameters that are mandatory for an organization to comply with. This part provides for establishing and cultivating a competent Data Privacy Management System.
  • Part 2 deals with the Engineering and Management guidelines which enable the implementation of Part 1. These guidelines are not mandatory in nature but a reference framework for an organization to implement good practices internally.

 

The Context – Privacy & Data Protection laws in India

 

The Data protection bill was expected to be tabled in parliament back in 2019 but was postponed due to the ongoing pandemic. The country was hoping to pass the bill last year, however, it was sent to the Joint Parliament Committee (JPC) for perusal. The JPC made its report on the bill public in the month of December 2021.

Also, Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 had been implemented back in 2011, primarily to safeguard the sensitive personal data of individuals that are collected, processed, transferred, or stored by any organisation and enumerate security practices. The rule lays down certain practices and procedures to be followed by a stakeholder while dealing with sensitive personal data. International Standard IS/ISO/IEC 27001 is one such acceptable standard.

Later ISO27701 was specifically introduced that focused on Privacy Information Management.  However, our Indian enactment has not specifically endorsed any such standards though Standards formulated by the industry association that is approved and notified by the Central Government are also deemed appropriate.  In this background, BIS introducing a standard is a welcome initiative as it will help in bringing uniformity in terms of the implementation of privacy practices across Indian industries.

Components of Part 1 of IS 17428[3]

 
Development of Privacy Requirements:

While developing the privacy requirements of the organisation in relation to the data collected or processed, the organisation has to take into consideration various factors such as jurisdiction, statutory requirements and business needs.

Personal Data Collection and Limitation:

The organisation is permitted to collect the personal information of the individuals, provided the same has been consented to by such individuals.

Privacy notice: 

The organisation is bound to provide a notice to individuals while collecting information from them and when such collection is through an indirect method employed by the organisation, then it is the duty of the former to convey by the same in an unambiguous and legitimate means.

The contents of a privacy notice at the minimum should include the following[4]:

  • Name and Address of the entity collecting the personal data
  • Name and Address of the entity retaining the personal data, if different from above
  • Types and categories of personal data collected
  • Purpose of collection and processing
  • Recipients of personal data, including any transfers
Choice and Consent:

As mentioned earlier, while collecting information, the organisation should get the consent of the individual at the initiation of the process while offering such individuals the choice of the information that they consent to disclose. This entire process should be done in a lawful manner and according to the privacy policies implemented by the organisation.

Data Accuracy: 

The data collected by the organisation should be accurate, and in case it is inaccurate, it should be corrected promptly.

Use Limitation: 

The data collected by the organisation should be used for the legitimate purpose for which it was agreed upon and it shall not be used for any other purposes.

Security: 

The organisation should implement a strict security program to ensure that the information collected is not breached or compromised in any manner.

Data Privacy Management System: 

The organisation is required to establish a Data Privacy Management System (DPMS). The DPMS shall act as a point of reference and baseline for the organisation’s privacy requirements/objectives.

Privacy Objectives: 

The privacy objective of the organisation shall be fixed and set out by the organisation itself. While determining the objectives the organisation shall also look into various factors such as the nature of business operations involving the GDPR processing of personal information, the industry domain, type of individuals, the extent to which the processed information is outsourced and the personal information collected. Moreover, the organisation shall also ensure that the objectives are in alignment with its privacy policy, business objectives and the geographical distribution of its operations.

Personal Data Storage Limitation: 

The organisation shall be allowed to retain the information collected from the individual only for a specific time period as required by the law or the completion of the purpose for which it was collected in the first place. The individual shall have the right to delete their personal information from the organisation database upon request.

Privacy Policy: 

The organisation shall create and implement a privacy policy that shall determine the scope and be applicable to all its business affiliates. The senior management of the organisation shall be in charge of the data privacy function. Moreover, the privacy policy should be in consonance with the privacy objectives of the organisation.

Records and Document Management

The organisation shall keep a record of its processing activities which shall, in turn, ensure responsibility towards the compliance of data privacy. The possible way to achieve such a standard is to lay out procedures that help to identify various records. While laying out procedures, the organisation shall take into consideration certain factors such as a record of logs that demonstrate affirmative action and options chosen by individuals on privacy consent and notice, evidence of capture events related to access or use of personal information, and retention period of obsolete documents.

Privacy Impact Assessment: 

A privacy impact assessment shall be carried out by the organisation from time to time. Such an assessment shall help in estimating the changes and the impact that they can possibly have on the data privacy of the individuals.

Privacy Risk Management

The organisation shall put in place and document a privacy risk management methodology. The methodology shall determine how the risks are managed and how the risks are kept at an acceptable level.

Grievance Redress:  

A grievance redressal mechanism shall be established by the organisation to handle the grievances of the individuals promptly. The organisation shall ensure that the contact information of the grievance officer shall be displayed or published and that they have the channel of receiving complaints from the individuals. Moreover, the organisation shall also make it clear as to the provision for escalation and appeal and the timelines for resolution of the grievance.

Periodic Audits: 

The organisation shall conduct periodic audits for the data privacy management system. The audit shall be conducted by an independent authority competent in data privacy, internal or external to the organization, at a periodicity appropriate for the organization, at least once a year.

Privacy Incident Management: 

Privacy breaches and data privacy incidents shall be reported regularly and the organisation shall come up with a mechanism to manage such incidents. The process shall involve identifying the incident at the first stage and investigating the root cause, preparing analysis and correcting the incidents in the second stage. The last stage is basically informing the key stakeholders including Data Privacy Authority about the breach or incident.

Data Subject’s Request Management: 

The organisation shall develop a mechanism to respond to requests from individuals concerning their personal data. This process shall include the means to verify the identity of the individual, provision access to the information and the means to update the information.

 

How IS 17428 would help in Privacy and Data Protection? 

 

The Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (RSPP and SPDI rules) had been the only law for organisations to follow. The rules did not prescribe or detail any specific requirements or standards in relation to personal data management and in the absence of formulated standards for the protection of the sensitive personal data of individuals, industry bodies were struggling to have uniform procedures. 

This being the case, introducing specific standards for personal data management will bring more clarity and will help companies to adhere to an approved standard prescribed by a government agency. Moreover, principles narrated in this standard are in accordance with the Internationally recognised privacy principles and will help Indian companies to proffer confidence when dealing with their commercial counterparts.

Introduction of record and document management, risk assessment and data subject request management are a few of the aspects that bring onerous responsibilities on companies making them more accountable and transparent.  These aspects have laid down procedures and mechanisms for an organisation to improve their privacy management, for example, introducing processes such as verification of identity, access to information, evidence of capture events of consent and retention period of obsolete documents.

 

The proposed data protection legislation and the IS 17428

 

The IS 17428 standard has been inspired primarily from the principles dictated from OECD privacy principles, GDPR and ISO27701. The proposed data protection legislation on the other hand has many divergences from the above instruments in many respects. For Instance, the IS standard has an elaborate description provided for the privacy objective of the organisation and the factors that need to be taken into account. Most of these objectives are covered under Sections 22 and 23 of the draft Bill but nevertheless, the standard has recommended a few other factors such as geographical operation, industrial domain and type of individuals as specific factors to be taken into consideration while drafting the privacy objectives. How much discretionary privacy standards can be created, what is allowed freedom for industries in this regard is unclear.

Section 28 of the draft bill talks about the records and document management of the data collected or processed and the standard covers almost every bit of the section. In addition to the consideration mentioned under the bill, the standard goes forward and echoes the need to establish a policy on the preservation of obsolete policies and process documents. Data and record-keeping should be for a defined period. The majority of other legislation prescribes an average of 7 years of data-keeping. Keeping any data beyond such a reasonable period may not serve many purposes. Why this standard has prescribed such obsolete data retention is again unclear.

The standard could be made effective by only having an enactment for data protection legislation in place. For instance, the grievance redressal mechanism, though the standards do envisage an appeal mechanism, they do not establish appeal machinery. This part of the standard can be put to use only after the Data Protection Authority as per section 32 is constituted. The standard also calls for an investigative process in the event of any breach or compromise of data. The organisation is welcome to conduct an onsite or internal investigation into the breach or incidents, but once again an independent authority to investigate in a legitimate and fair manner is required.

In short, I am afraid, has it failed to take into account the special requirements contemplated under the PDPB, 2019 which may eventually become the law of the country thereby, once this law is enacted, this standard will also be required to be modified. The government has not made any announcement as per the RSPP and SPDI rules, that IS 17428 is an appropriate standard certifying the compliance of personal data management. In the absence of such explicit endorsement, the ambiguity continues as to whether the adoption of this standard is sufficient compliance under the said rules.

Finally, with the Data protection bill around the corner, the Data Protection Authority envisaged being constituted under the legislation which shall have the power to issue code, guidelines, and best practices for protecting the privacy of data subjects. How IS 17428 standards framed by the BIS will be looked at by the DPA or the proposed rule will offer a different set of practices shall be an interesting development to observe.

References:

[1] https://economictimes.indiatimes.com/industry/cons-products/fashion-/-cosmetics-/-jewellery/abfrl-faces-data-breach-on-its-portal/articleshow/88930807.cms

[2] The IS 17438 was established on November 20, 2020 and notified in the official gazette on December 4, 2020. Please see the notification available at: https://egazette.nic.in/WriteReadData/2020/223869.pdf (last visited Jan 18, 2022).

[3] Supra note 2.

[4] Sub-clause 4.2.2 of the IS Requirements: “Privacy Notice”.

 

 

Photo Credits:

Image by Darwin Laganzon from Pixabay 

Introduction of record and document management, risk assessment and data subject request management are a few of the aspects that bring onerous responsibilities on companies making them more accountable and transparent.  These aspects have laid down procedures and mechanisms for an organisation to improve their privacy management, for example, introducing processes such as verification of identity, access to information, evidence of capture events of consent and retention period of obsolete documents.

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Modifying the Personal Data Protection (PDP) Bill to Deal with Rising Privacy Concerns

OVERVIEW OF DATA PROTECTION REGIMES

The recent advent of WhatsApp’s updated privacy policy has brought to light the legal loopholes that the Indian Data Protection Laws are laced with. A revised and updated change in Data Protection Laws in India could have prevented the possible infringements that may take place with WhatsApp’s new privacy policy.

The European Region has been able to circumvent this issue due to its updated Data Privacy Laws that successfully provide users with protection from such policies. These policies legally mandate WhatsApp to prevent the sharing of data with Facebook and a violation of it would infringe the provisions of the General Data Protection Regulation (GDPR).

We have discussed here the modifications that could possibly be added to the Personal Data Protection Bill (PDP Bill) in India in order to ensure an air-tight privacy regulatory authority.

RISING PRIVACY CONCERNS- A STUDY ON WHATSAPP’S PRIVACY POLICY

With an undeniable rise in the relevance and indispensability of the digital platform; comes the numerous concerns regarding its safety in terms of data and privacy protection norms. A case in this instance would be that of WhatsApp releasing its updated terms of Privacy on January 04,2021, under which it would deprive users of their choice to share data or other information with other apps, including those owned by Facebook. Moreover, this policy was accompanied by a condition under which users who did not accept the updated privacy terms, would have to quit using WhatsApp altogether- beginning February 08, 2021- when the updated terms and policies was planned to be enforced.



The updated privacy policies of WhatsApp leave the end-to-end encryption clause intact. This means that WhatsApp has no access to one’s text messages and cannot share the same with any other party. However, this clause does not cover the protection of metadata- which entails everything in a conversation apart from the actual text. This information can be shared with Facebook and other apps.

WHY THIS POSES A PROBLEM

A close perusal and analysis of the entire case reveals the observation that this issue could have been avoided with a concrete Data Protection Law or Regulation in place in India.

The core issue that centres the entire case is that people largely use WhatsApp to communicate with friends and family. The data thus shared on this App by individuals is now proposed to be shared with other companies to run their businesses, for monetary gains. This implies that the purpose for which WhatsApp would be using personal data and information is not even remotely connected to the purpose for which users had share that information on the app.

This issue assumes an even graver character due to the inability of the Indian Data Protection Laws to safeguard their users from a misuse of data. Without a data protection authority or regime in force; users will be exposing their data to the surveillance of the entire Facebook group of companies.

Its lack of effectiveness to provide remedies or relief in such situations stands in stark contrast to the legal frameworks that are in place in other jurisdictions, most particularly the European countries. These countries are equipped with laws that can impose fines on Facebook for unduly sharing and using information through WhatsApp. This clause came into effect when the Competition Commission of certain European countries imposed this condition on Facebook during its purchase and acquisition of WhatsApp.
An important point to take note of, is also the commitment made by WhatsApp during its launch in 2009- “to not sell user data or personal information to any third party”. This stance changed with the acquisition of WhatsApp by Facebook in 2014; and its sharing of data with its parent company in 2017.However, in 2017; users were given a choice to prevent the sharing of such data to other platforms. The updated policies have mandated the exposure of such data as a condition to continued usage of the App.
The users are thus breached of the expectations and commitments with which they had initially installed the App.

IMPLICATIONS ON USERS

Unfortunately, due to the technical and legal intricacies of the issue; a majority of the Indian population will stay unaware of this issue and not do much about it other than accept the terms being forced upon them.

However, there are sections of the population sensitive to data protection and privacy norms. This brings to light the possibility of shifting to alternate and safer platforms such as Signal, Telegram and iMessage. Moreover, petitions have also been filed in several legal courts pursuant to the policies introduced by WhatsApp in January 2021 seeking to stay the implementation of these policies. After all, Right to Privacy is a Fundamental Right granted under Article 21 of the Constitution of India and therefore, must not be compromised upon.

It is thus proposed that till an appropriate legal and concrete regulatory and supervisory authority is not in force vis-à-vis the Data Protection issues in India, the Court must prohibit the execution of this new Privacy Policy set forth by WhatsApp. Pursuant to this, the Supreme Court has directed WhatsApp and its parent company, Facebook, to file their replies to the petitions and growing concerns on privacy violations.

In furtherance of these directions, WhatsApp has most recently implemented its updated Privacy Policy with a new campaign. Through this updated campaign, WhatsApp aims to increase communication about its changes with its users through a small banner at the top of the chat, while also offering more time to let them read, understand and accept its terms. Following the backlash received, now the new Privacy Policy terms is expected to go into effect at a later date i.e. May 15, 2021.

HOW THE PDP BILL CAN BE MODIFIED TO INCREASE DATA PROTECTION

The PDP Bill can and must be modified in certain ways to ensure that arbitrary clauses in such online policies do not deprive the users of the rightful protection they are entitled to under the Right to Privacy. One of the main additions that the PDP Bill must incorporate is a clause or term in the law that prohibits the changing or modification of the terms of a contract after its enforcement. For instance, WhatsApp modified the terms of its contract resulting in a clause that was contrary to its initial commitments and objectives.

Moreover, since the PDP Bill has not been passed yet; it is crucial to look to other alternate legal provisions and statutes that may offer protection in such situations. For instance, the Information Technology Act of 2000, under Section 87 gives the government the authority to come up with regulations that can put a stop to arbitrary policies introduced by online platforms that pose a threat to privacy and data protection rights granted to individuals.

A company must not be able to modify terms according to their whims and mandate users to abide by it simply because they consented to the initial contract. Terms of such contracts must be regulated and privacy laws must ensure that changes in these policies have undergone user consent.

SUMMARY

In order to honour the Fundamental Right to Privacy, it is vital for the concerned platforms to provide clarity regarding its policies to ensure that a well-equipped and protective mechanism is set in force to deal with instances of data protection infringement in India. It is also crucial to formulate a structure on the PDP Bill that is well equipped to handle policy changes while ensuring a constant protection of data privacy rights. Other alternative laws must also be incorporated and interpreted in ways to prevent a breach of privacy.

The European Region was able to circumvent the imposition of data sharing norms by Watsapp due to its updated Data Privacy Laws that successfully provide users with protection from such policies. Our extant laws are glaringly inadequate and the proposed draft, as well as the delay in the passage, of the Personal Data Protection Bill (PDP Bill), is posing a serious threat to our online privacy and security.

REFERENCES

1 WhatsApp’s new privacy policy: Yet another reason why India needs data protection law – The Hindu BusinessLine.
2 Privacy Policy – Feb 2021. (whatsapp.com)

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