24 Nov 2022
On 18 November 2022, the Ministry of Electronics and Information Technology released a draft of the Digital Personal Data Protection Bill, 2022 (DPDP Bill) for public consultation. This comes just a few months after the Government withdrew the previous bill, i.e., the Personal Data Protection Bill, 2019 (PDP 2019) and by extension, the draft Data Protection Bill, 2021 (2021 Bill) from Parliament, citing the need for a fresh and comprehensive draft. The Government has indicated that the DPDP Bill is considerably different from its predecessors in the manner and form of the obligations it imposes and in its treatment of non-compliance and enforcement.
Broadly, the DPDP Bill: (i) alters/omits definitions that were key in prior iterations; (ii) refrains from prescribing prescriptive notice requirements; (iii) does not categorise personal data based on sensitivity into sensitive personal data or critical personal data; (iv) alters the legal bases for non-consensual processing of personal data; (v) prescribes certain general obligations for data fiduciaries and limited additional obligations for significant data fiduciaries; (vi) provides for certain data principals’ rights and imposes (for the first time) duties on them; (vii) permits the cross-border transfer of personal data to notified countries subject to certain conditions; (viii) positions the Data Protection Board more as an enforcement authority, as opposed to a regulator; and (ix) focuses on tempered penalties in place of the earlier trifecta of compensation, penalties and criminal liability.
The DPDP Bill is open for public consultation until 17 December 2022. As far as implementation is concerned, the DPDP Bill contemplates a phased roll-out once it is notified. Some of the key provisions of the DPDP Bill and their implications are discussed below, and parallels to the 2021 Bill have been drawn where required to demonstrate the evolution of these concepts.
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