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“Deemed Consent” May Shape Personal Data Processing in New Draft Data Protection Law: Report

HT reported that the latest Data Protection Bill may contain a “deemed consent” clause to provide consent for data use beyond its initial purpose

The much-awaited draft data protection bill may contain a clause on “deemed consent” for processing personal data, Hindustan Times reports. This means consenting to voluntarily provide data that may be used for purposes other than what it was initially collected for.

2019’s iteration of the draft law stated that personal data can be processed for “the purpose consented to by the data principal or which is incidental to said purpose”. However, the upcoming draft may instead allow data access and processing for a “lawful purposes” or “incidental lawful purpose in a privacy preserving manner”.

This understanding of consent is visible across sections of the draft describing conditions for personal data processing. In particular, Section 8 of the draft may cover the concept in the upcoming draft, adds the report.

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Why it matters: Such a provision may hamper the limited and purpose-driven use of data collected by data processors and controllers in India. “It would give free rein to one and all to collect data through the Hobson’s Choice of ‘take it or leave it’ and militates against the letter and spirit of Puttaswamy’s privacy judgment,” said N.S. Nappinai, Supreme Court lawyer, in conversation with Hindustan Times.

India’s data protection law has been in the making for over four years. The government withdrew the latest draft—the Data Protection Bill, 2021—in August this year, to pave the way for a modern data protection law that provides an ‘accessible, inclusive, and equitable structure’ for data protection and sharing. Going by the many hints dropped by the Ministry of Electronics and Information Technology (MeitY), the draft for this law is expected to be released this week.

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What does “deemed consent” look like in practice?

Hindustan Times illustrates with three examples, which appear to be laid out in the draft law:

  • Suppose a data principal provides a restaurant with their name and mobile for a reservation. In this case, the data principal will be deemed to have consented data sharing and processing “for the performance of any function of the state under any law including a provision by the state or any instrumentality of the state of any service or benefit of the data principal, issuance of any certificate, license or permit for any action or activity of the data principal”.
  • Suppose a data principal shares their name, phone number, and bank account number with the government for “direct credit for an agriculture scheme, the user will also be deemed to have shared the data for purposes that can include credit of fertilizer subsidy, compliance with a judgment or order issued under any law, responding to a medical emergency and for taking measures to provide medical service”.
  • Suppose a data principal shares their biometric data with an employer, they have also be deemed to have consented to data sharing “in public interest for prevention and detection of fraud, whistle blowing, network and information security, credit scoring, operation of search engines for processing of publicly available data, and recovery of debt”.

How may the draft approach data segmentation?

Previous drafts of the data protection law categorised data into personal, sensitive, and critical data—where sensitive and critical data enjoyed heightened protections. The upcoming draft does away with the categorisation, said sources aware of the matter speaking to Hindustan Times. The law may instead only refer to the umbrella term “digital personal data”. A recent tweet by Rajeev Chandrasekhar, Minister of State for Electronics and Information Technology, also dubbed the bill as the “Digital Data Protection Bill”.

However, Hindustan Times flags that the draft’s section on cross-border transfers of personal data mentions that “sensitive personal data” needs to be stored in India. The draft does not explain what the classification means, adds the report. Notably, Chandrasekhar had recently said that data localisation norms restricting cross-border data flows may be relaxed in the law.

This post is released under a CC-BY-SA 4.0 license. Please feel free to republish on your site, with attribution and a link. Adaptation and rewriting, though allowed, should be true to the original.

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