Draft Data Protection Rules Mandate Due Diligence, Explicit Consent for Processing Children’s Data

The authorities on Friday launched the long-awaited draft of Digital Personal Data Protection Rules which specify that guardian’s verifiable consent should be obtained by social media or on-line platforms earlier than kids can create any account. Further, mother and father’ identification and age may even must be validated and verified by means of voluntarily offered identification proof “issued by an entity entrusted by legislation or the Government”, as per the draft guidelines.

As per the principles, entities will have the ability to use and course of private information provided that people have given their consent to consent managers – which will probably be entities entrusted to handle information of consents of individuals.

In case of kids information processing, digital platforms might want to perform due diligence for checking that the person figuring out herself because the guardian of the kid is an grownup and is identifiable if required in reference to any authorized compliance.

“A Data Fiduciary shall undertake applicable technical and organisational measures to make sure that verifiable consent of the guardian is obtained earlier than the processing of any private information of a kid,” the draft rule mentioned.

E-commerce, social media, and gaming platforms will fall beneath the class of information fiduciaries.

According to the draft guidelines, information fiduciaries should maintain the information solely in the intervening time for which consent has been offered and delete it thereafter.

The draft guidelines have been issued after 14 months of Parliament approving the Digital Data Protection Bill 2023.

“Draft of guidelines proposed to be made by the central authorities in train of the powers conferred by sub-sections (1) and (2) of part 40 of the Digital Personal Data Protection Act, 2023 (22 of 2023), on or after the date of coming into pressure of the Act, are hereby printed for the data of all individuals prone to be affected thereby,” the draft notification mentioned.

The draft guidelines have talked about the method of suspending or cancelling registration of consent supervisor in case of repeated violation, however there isn’t a point out of penalties that have been authorised beneath the DPDP Act, 2023. The Act has the supply to impose a penalty of as much as Rs 250 crore on information fiduciaries.

IndusLaw Partner Shreya Suri mentioned that there was an anticipation of introducing thresholds for information breach reporting, the place minor breaches might have had fewer compliance obligations.

“However, the present draft treats all breaches uniformly, requiring the identical degree of reporting and notification to the Data Protection Board and affected information principals, with out granting any discretion by any means to information fiduciaries. Additionally, whereas the principles define sure concerns for affordable safety practices, the shortage of detailed steering leaves room for various interpretations,” Suri mentioned.

The draft guidelines, which have been printed for public consultations, will probably be considered for making the ultimate rule after February 18. The draft is offered on MyGov web site for the general public feedback.

Mayuran Palanisamy, Partner at Deloitte India, mentioned the draft guidelines are fairly detailed and provides a lot wanted course to the companies in India by expounding upon compliance to be carried out by them, equivalent to obligations measures for Significant Data Fiduciaries, registration and obligations of Consent Managers, the institution and functioning of the Data Protection Board, together with specifics of information breach intimation to Data Principles and the Board, course of for the Principals to train their rights and timelines for Data Fiduciaries to answer grievances.

“We foresee that companies will face some complicated challenges in managing consent because it varieties the center of the legislation. Maintaining consent artefacts and providing the choice to withdraw consent for particular functions might necessitate adjustments on the design and structure degree of purposes and platforms,” Palanisamy mentioned.

Further, organisations might want to spend money on each technical infrastructure and processes to fulfill the necessities successfully. This consists of relooking into information assortment practices, implementing consent administration programs, establishing clear information lifecycle protocols and truly percolating down these practices at an implementation degree, Palanisamy added. 

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