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On The Indian Governments Clarification On IT Rules And Personal Data

Nandita Saikia is a lawyer who deals with intellectual property, technology and entertainment law. She’s written books on Business Communication and women’s rights, and compiled one on copyright. In this post, reproduced with permission from Indian Copyright, she explains a recent Indian government clarification on Personal Data, in the context of India’s Information Technology Rules.

In April 2011, four sets of Rules were published under the Information Technology Act, 2000; the second of these sets – called the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 – dealt with how personal sensitive data or information (collectively called “Information” here) should be treated.

Unfortunately, the Rules, to put it mildly, were not a model of clarity. In addition to being ambiguous, they were also criticised for making the impractical mandatory – for example, Rule 5(1) required a body corporate or any person collecting Information on its behalf to obtain consent in writing from the provider of the Information via a letter/fax /email regarding the purpose of usage prior to the collection of the Information. It has never been clear how this requirement could be made workable especially in situations which could involve having to obtain consent from large numbers of people.

Perhaps recognising the existence of problems regarding the interpretation and workability of the Rules, the Department of Information Technology, Ministry of Communications & Information Technology issued a Press Note on August 24, 2011 through the Press Information Bureau, Government of India clarifying the Privacy Rules.
Apar Gupta, a Delhi-based lawyer, and the author of the LexisNexis’ ‘Commentary on Information Technology Act’, captured the essence of the Clarification in three succinct tweets reproduced here:

Clarification 1

    : applies to companies located in India.

Clarification 2

    : applies to companies who collect data from persons and not under contract from other companies

Clarification 3

    : consent to privacy policy through click through agreements is valid

Even though there isn’t really anything beyond that to the Clarification, a slightly more detailed version of it has been appended below:

  • The Rules applicable to companies or any person located within India.
  • The providers of information, referred to in the Rules, are human beings who provide (to a company) sensitive personal data or information.
  • As far as the possibly unworkable Rule 5(1) described earlier is concerned, the requirement of obtaining consent from a person providing information by letter/fax /email has been changed: the Clarification states that consent includes consent given by any mode of electronic communication.
  • A B2B arrangement is not subject to Rules 5 and 6, although a B2C arrangement is.Rules 5 and 6 state (in possibly over-simplified terms):
      Information may only be collected if necessary for a lawful purpose connected with a function or activity of the collector, and the provider must be aware of the collection of information, its purpose, etc.
      The collector should enable the provider to review the information, and there should be a provision to revise incorrect information, although the collector will not be responsible for the accuracy of the information.
      The information may only be used for the purpose it is collected, and may not be retained for longer than required. The collector must provide an option to the provider not to provide information or to later withdraw information although if information is not provided/withdrawn, the collector is not under an obligation to provide the provider with goods/services with respect to which the information was sought/collected.
      The collector (body corporate) must address any discrepancies and grievances of their provider of the information with respect to processing of information within one month from the date of receipt of grievance, and, for this purpose, designate a Grievance Officer and publish his name and contact details on its website.
      Information may be disclosed only with the consent of the provider unless such disclosure has been agreed to in the contract between the body corporate and provider of information, or where the disclosure is necessary for compliance of a legal obligation.
      The collector shall not publish the Information.
  • The “privacy policy, as prescribed in Rule 4, relates to the body corporate and is not with respect to any particular obligation under any contract”.
    Rule 4 requires companies and persons collecting Information on their behalf to “provide a privacy policy for handling of or dealing in personal information including sensitive personal data or information and ensure that the same are available for view by such providers of information who has provided such information under lawful contract”.

Disclaimer: This post is entirely academic in nature, and its content is not legal advice.


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