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Will the Lack of Criminal Liability Provisions in India’s Data Protection Law Impact Compliance? #PrivacyNama2023

Although there are no criminal provisions in the DPDP Act, Section 72A, a rather dominant clause in the IT Act of 2000, penalises privacy violations with jail term of upto three years, a maximum fine of Rs 5 lakh, or both.

“I think this really a welcome step,” responded K&S Digiprotect’s S. Chandrasekhar to a question on the lack of criminal liability embedded into India’s new data protection law, while speaking at MediaNama’s PrivacyNama conference last week. “It’s bad news for the lawyers, and bad news for people like us [data principals], because [on the question of] implementation, nobody’s taking it seriously because nobody’s going to be jailed. But from the ease of doing business [perspective], from the way multinational companies look at it, from the way India is positioned as a [global technology] destination, I think it is a really welcome step because there was a lot of fear and terror about how it will be used.”

Non-compliance with the Digital Personal Data Protection Act will be determined by the Data Protection Board of India—which, after inquiring into complaints, may impose financial penalties on defaulters, to be deposited with the Consolidated Fund of India. The panellists at PrivacyNama’s “Data Protection Board” session exchanged notes on whether the glaring lack of criminal liability in the data protection law would impact compliance with the law—or if loopholes to bring criminal charges still existed.

Chandrasekhar was joined by co-panellists Alok Prasanna Kumar (Vidhi Centre for Legal Policy), Anirudh Burman (Carnegie India), and Meghna Bal (Esya Centre). The panel was moderated by Arya Tripathy (PSA Legal).

This discussion was organised with support from Meta, PhonePe, Google, and Salesforce, and in partnership with CUTS and the Centre for Communication Governance.

Criminal provisions for privacy violations persist within a separate law—the Information and Technology Act, 2000: “Although there are no [criminal] provisions of that nature in the DPDP Act [for privacy violations], there is a rather dominant clause in the IT Act, 2000, which is Section 72A, which still survives,” an audience member pointed out.

Section 72A of the IT Act punishes disclosing information in breach of a lawful contract. It states that “any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.”

Section 43A of the IT Act also deals with compensation to the user when a body corporate fails to protect their personal data. However, this provision has been repealed under the new personal data protection law.

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“I think that the dominant section under the IT Act [Section 72A] will get triggered after complaints and after people become literate about these particular sections in future,” the audience member added.

“So, you’re saying there might be a window between the Data Protection Bill and the Digital India Act for someone to file a criminal case,” MediaNama’s Editor Nikhil Pahwa concluded.

Criminal charges can also be brought for ‘breach of trust’: Responding to Chandrasekhar, Vidhi’s Alok Prasanna Kumar observed that the lack of criminal provisions in the data protection law itself need not deter criminal complaints. “Lawyers may perversely see that as a challenge,” Prasanna Kumar pointed out. “It [criminal charges] may not be in this legislation, but if somebody is determined enough, my guess would be they will invoke criminal breach of trust. And it’s not about getting a conviction at the end of the day. The power of a criminal court issuing notice to directors to come to court and answer the allegations is enough [intimidation] in a lot of instances. Or the police turning up at your office, saying criminal breach of trust [charges are being filed] against your company…So, I’m again using that horrid lawyer hat of mine, but it’s possible. This law may not provide for it, but do not put it past some clever member of my fraternity [to file similar charges].”

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