reasonable security practices and procedures and sensitive personala 24 06 2011 avantha
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REASONABLE SECURITY PRACTICES AND PROCEDURES AND SENSITIVE PERSONAL DATA OR INFORMATION RULES, 2011 Under The (Indian) Information Technology Act, 2000TRANSCRIPT
REASONABLE SECURITY PRACTICES AND PROCEDURES AND
SENSITIVE PERSONAL DATA OR INFORMATION RULES, 2011Under
The (Indian) Information Technology Act, 2000
By
Vijay Pal Dalmia, Advocate Partner & Head of Intellectual Property & Information Technology Laws Practice
Enacted in the year 2000 and was implemented w.e.f. 17th
October, 2000.
Important features of this Act :
Recognition to e-transactions, digital signatures, electronic
records etc. and also recognise their evidentiary value.
Lists out various computer crimes which are technological in
nature.
However, this Act, originally, did not contain any provision for
data protection.
INFORMATION TECHNOLOGY ACT,
2000
The IT Act, 2002 was amended in the year 2008.
Section 43A and Section 72A were added by the
amendment Act for protection of personal data
and information.
Both these provisions are penal in nature, civil and
criminal respectively.
THE INFORMATION TECHNOLOGY
(AMENDMENT) ACT, 2008
Ministry Of Communications And Information Technology
(Department Of Information Technology) promulgated these
rules (IT Rules 2011), under Section 87 (2)(ob) read with
Section 43A.
IT Rules, 2011 came in force on 11th April, 2011.
Non Compliance of these rules would lead to invocation of
Section 43A of The IT Act, 2008 and liability to pay
compensation, limits of which have not been fixed.
REASONABLE SECURITY PRACTICES
AND PROCEDURES AND SENSITIVE
PERSONAL DATA OR INFORMATION)
RULES , 2011
SECTION 72A of IT Act 2008.
In addition to the civil liabilities under Section 43 A
◦ Any person, or
◦ Intermediary
◦ Is liable for punishment
Of imprisonment for term which may extend to
*3 years
Or fine up to INR 5,00,000
Or both
◦ For disclosure of information
In breach of lawful contract.
*(Cognizable offence and Bailable) ( as per Section. 77B)
Where a BODY CORPORATE,
possessing, dealing or handling any sensitive personal
data or information
in a computer resource which it owns, controls or
operates
is negligent in implementing and maintaining reasonable
security practices and procedures
and thereby causes wrongful loss or wrongful gain to any
person
such body corporate shall be liable to pay damages by
way of compensation to the person so affected.
SECTION 43A: COMPENSATION FOR
FAILURE TO PROTECT DATA
A body corporate would mean:
any company and includes:
a firm,
sole proprietorship or
other association of individualsengaged in
•commercial or
•professional activities.
DEFINITION OF BODY CORPORATE
SECTION 43 A –Explanation (i)
Sensitive personal data or information of a „person‟ means
such „personal information‟ which consists of information
relating to:
1. Password;
2. Financial information such as:
Bank account or,
Credit card or debit card or,
Other payment instrument details
3. Physical, physiological and mental health condition;
4. Sexual orientation;
Contd…
SENSITIVE PERSONAL DATA OR
INFORMATION:
RULE 3, IT RULES, 2011
5. Biometric information;
6. Any detail relating to the above clauses
as provided to body corporate
for providing service; and
7. Any of the information received under above clauses by
body corporate for
processing,
stored or
processed
under a lawful contract or otherwise
SENSITIVE PERSONAL DATA OR
INFORMATION
RULE 3 OF THE IT RULES, 2011
Following information is not regarded as sensitive personal
data or information:
1. Information freely available or accessible in public domain
or,
2. Information furnished under the Right to Information Act,
2005 (RTI) or
3. Information furnished under any other law for the time being
in force.
EXCEPTIONS:
Any information that relates to a
„natural person‟
which either directly or indirectly, in combination with other
information available or likely to be available with a body
corporate,
is capable of identifying such person.
PERSONAL INFORMATION:
RULE 2 , IT RULES, 2011
Security practices and procedure designed to
protect such information from unauthorized
• access,
• damages,
• use,
• modification,
• disclosure or
• impairment,
Contd…
MEANING OF REASONABLE SECURITY
PRACTICES AND PROCEDURES
Section 43, Explanation (ii)
Contd…
as may be specified in :
an agreement between the parties or;
any law for the time being in force; or
in absence of such agreement or law,
such reasonable security practices and
procedures,
as may be prescribed by the Central
Government.
MEANING OF REASONABLE SECURITY
PRACTICES AND PROCEDURES
Section 43, Explanation (ii)
Privacy Policy
Consent for collection of data
Collection of data
Use and Retention
Opt Out/Withdrawal
Access and Review of Information
Grievance Mechanism
Limitation on Disclosure of Information
Limitation on Transfer of Information
Reasonable Security Practices and Procedures
Body corporate or any person on its behalf
◦ collects, receives, possess,
◦ stores, deals or handles
information of provider of information
Shall provide a privacy policy for
handling of or dealing in
„personal information including sensitive personal data or
information‟.
Contd…
PRIVACY POLICY: RULE 4
Privacy Policy shall be published on the website and provide:-
• Clear and easily accessible statements of its practices and
policies;
• Type of personal or sensitive personal data or information
collected;
• Purpose of collection and usage of such information;
• Disclosure of information including sensitive personal data
or information;
• Reasonable security practices and procedures followed by
the corporate.
PRIVACY POLICY: RULE 4
RULE 5 (1)
o Requires the corporate or any person on its
behalf,
o before collection of sensitive personal data or
information,
o to obtain consent in writing through letter or FAX
or email from the „provider of the information‟
o regarding purpose of usage of such information.
CONSENT
RULE 5(3)
Requirements in case of collection of information directly from
the person concerned:
Steps to ensure that the person concerned is having the
knowledge of :
o The fact that the information is being collected;
o The purpose for which the information is being collected;
o The intended recipients of the information; and
o The name and address of –
◦ the agency that is collecting the information; and
◦ the agency that will retain the information
CONSENT
RULE 5 (2)
Sensitive personal data or information can be
collected only under following two circumstances:
1. For a „lawful purpose‟
connected with a function or activity
of the body corporate or any person on it behalf;
and
2. Considered „necessary‟ for that purpose
PURPOSE OF COLLECTION OF
INFORMATION
USE - RULE 5(5):
The information collected shall be used
only for the purpose for which it has been collected.
RETENTION - RULE 5(4)
A body corporate or its representative
must not retain such information for
longer than is required for the purposes for which the
information may lawfully be used. OR
as required under any other law in force.
USE AND RETENTION OF INFORMATION
RULE 5(7) :
Requires the body corporate to give the provider of
information, an option:
1. prior to the collection of the information, to not provide the
data or information sought to be collected
2. of withdrawing his consent given earlier to the body
corporate.
Withdrawal shall be sent in writing to the body corporate.
the body corporate shall have the option to not provide
goods or services for which the said information was
sought.
OPT OUT/WITHDRAWAL
It is noteworthy that, none of the rules talk about
obtaining the consent of the person to whom the
information relates in case the provider the
information is not the person concerned.
For example, where the husband provides the
medical information of the wife, consent of the wife
is not required as per these rules as she is not the
provider of the information. She also does not have
the option of opting out as per Rule 5(7).
OPT OUT/WITHDRAWAL
RULE 5(6)
o Providers of information- permitted- to review the
information provided by them- as and when
requested by them;
o Information- if found to be inaccurate or deficient
shall be corrected or amended as feasible.
o Body corporate NOT responsible for authenticity of
the personal information or sensitive personal data
or information as supplied by the provider to the
body corporate.
ACCESS & REVIEW OF INFORMATION
RULE 5(9)
o Time bound redressal of any discrepancies and
grievances.
o Grievance Officer shall be appointed.
oPublication of name and contact details of
Grievance Officer on website
o Redressal of grievances: within one month from the
date of receipt of grievance.
GRIEVANCE REDRESSAL MECHANISM
RULE 6
Permission of the provider of the information is required
before disclosure of information
Exceptions:
1. when disclosure is agreed upon in the contract;
2. when disclosure is necessary for compliance of a legal
obligation;
3. when disclosure to Government agencies mandated under the
law to obtain information.
4. when disclosure to any third party by an order under the law
for the time being in force.
LIMITATION ON DISCLOSURE OF
INFORMATION
RULE 6
Rule 6 also forbids the following:
1. Publication of sensitive personal data or
information by body corporate or its
representative,
2. Disclosure by third party receiving the
sensitive personal data or information
from the body corporate.
LIMITATION ON DISCLOSURE OF
INFORMATION
RULE 7Transfer allowed to:
another body corporate or a person
in India, or located in any other country.
Transfer is allowed only if :
1. other body corporate or person ensures the same level of
data protection that is adhered to by the body corporate as
provided under these rules.
2. it is necessary for the performance of the lawful contract
between the provider of the information and the corporate
receiving the information.
LIMITATION ON TRANSFER OF
INFORMATION
RULE 8
Prescribes standard to be adhered to
by a body corporate, receiving the information,
◦ in the absence of an agreement between the
parties;
◦ or any law for the time being in force.
One such prescribed standard: The International
Standard IS/ISO/IEC 27001 on “Information
Technology – Security Techniques – Information
Security Management System – Requirements”.
REASONABLE SECURITY PRACTICES
AND PROCEDURES
Any other Security code, if followed shall be :
o Duly approved and Notified
o by the Central Government
o Audited annually by an independent auditor approved by
the Central Government.
In the event of an information security breach –
demonstration of implementation of security
control measures - by the body corporate.
REASONABLE SECURITY PRACTICES
AND PROCEDURES
A body corporate or a person on its behalf shall be deemed to
have complied with reasonable security practices and
procedures if:
They have implemented such security practices and
standards, and
Have a
comprehensive documented information
security programme; and
information security policies for:
managerial, technical, operational and physical
security which are proportionate with the
information assets being protected with the
nature of business.
REASONABLE SECURITY PRACTICES
AND PROCEDURES
IT Act, 2000 is available at:
http://www.mit.gov.in/sites/upload_files/dit/files/downloa
ds/itact2000/itbill2000.pdf
IT (Amendment) Act, 2008 is available at:
http://www.mit.gov.in/sites/upload_files/dit/files/downloa
ds/itact2000/it_amendment_act2008.pdf
Information Technology (Reasonable security practices and
procedures and sensitive personal data or information)
Rules, 2011are available at:
http://www.mit.gov.in/sites/upload_files/dit/files/GSR313
E_10511(1).pdf
1. What is the likelihood of activeenforcement of the new rules?
2. What are the penalties for violationsof the new rules?
3. Do the rules apply only toinformation collected from datasubject in India, or do they also applyto information about data subjectslocated outside India?
Do the rules apply to uses/disclosure ofinformation that occur outside of India, if theinformation was originally collected in India?
Do the rules apply to pseudonymizedinformation?
Is the “provider of the information” in Rule 5referring to the subject, or can this beinterpreted as referring to a third party thatprovides information but who is not the datasubject?
Are there opportunities for furtherclarification/amendment of the new rules?
THANK YOU
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