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