Comparison Between DPDPA and GDPR: Key Differences in Data Privacy Laws

Definition of Data Privacy and Its Importance

Data privacy, also referred to as information privacy or data protection, involves the proper handling, processing, storage, and dissemination of personal data. It encompasses the relationship between data collection practices, technology, public expectations, contextual information norms, and the legal and political frameworks that govern these activities. My significance of data privacy has escalated in recent years due to the exponential increase in the volume and variety of personal information being collected and processed in the digital age.

The importance of data privacy can be understood through several key aspects:

Protecting personal information: Ensures confidentiality and security of sensitive personal data, such as financial records, health information, and personal communications.
Maintaining trust: Builds and sustains trust between individuals and organizations by guaranteeing responsible data handling.
Preventing abuse: Protects against the misuse of personal information, such as identity theft, fraud, and unauthorized surveillance.
Compliance: Ensures adherence to legal and regulatory mandates that require the protection of personal data.

Historical Context of Data Privacy

The concept of data privacy has evolved significantly over time, influenced by technological advancements and the growing digitization of personal information. Various regions worldwide have developed their own frameworks and regulations to address data privacy concerns.

Global Developments

1.General Data Protection Regulation (GDPR) -

European Union: Enacted in 2018, the GDPR is one of the most comprehensive data protection regulations globally. It sets stringent requirements for data handling and grants extensive rights to individuals regarding their personal data.

2.California Consumer Privacy Act (CCPA) -

California: Effective from 2020, this act provides California residents with substantial control over their personal information, including the right to know what data is collected, the right to delete it, and the right to opt-out of its sale.

India’s Digital Personal Data Protection Act:

India with over 80 crore internet users is amongst the highest consumers and producers of data per capita amongst the countries. Digital India has transformed the lives of crores of Indians. With this, personal data security and privacy issues have become very important aspects of our daily interactions and have thus figured prominently across various forums in recent years. On 24th August 2017, a nine Judge Bench of the Supreme Court delivered a unanimous verdict in Justice K.S. Putt swamy vs. Union of India and other connected matters, affirming that the Constitution of India guarantees to each individual a fundamental right to privacy.

Against this backdrop, it became important to have a law to address the privacy of data. Brief timeline of the Data Privacy regulation in India is as follows:

What Is DPDPA and GDPRs

DPDPA :

Digital Personal Data Protection Act is a data protection law introduced in India. Enacted in 2023, it governs the processing of digital personal data, sets out the rights and obligations related to individuals’ data, and establishes compliance requirements for businesses and other entities that handle personal information. The Act aims to protect personal data, ensure accountability in data processing, and give data principals (individuals whose data is being processed) more control and transparency over how their data is used.

GDPR

General Data Protection Regulation is a comprehensive data protection and privacy law that took effect across the European Union in May 2018. It standardizes data protection rules for all EU member states, requiring organizations worldwide that process the personal data of EU residents to comply. GDPR’s objectives are to strengthen individuals’ rights regarding their personal data, ensure transparency, and impose stringent obligations on businesses, including strict consent requirements, data breach notifications, appointment of Data Protection Officers (in certain cases), and potentially heavy penalties for non-compliance.

Difference Between DPDPA and GDPR

While both the DPDPA and GDPR emphasize the protection of personal data, there are notable differences

Category	DPDPA	GDPR
Scope	Applies to processing of digital personal data within India where the personal data is collected:1. In digital form; or2. In non-digital form and subsequently digitized.	Applies to processing of personal data in the EU, wholly or partly by automated means, and to non-automated processing of personal data that form part of a filing system or are intended to form one.
Legitimate Use	Allows certain “legitimate uses” without specific consent, including:1. Data provided voluntarily.2. Data required for compliance with law.3. Employment-related purposes.	Under GDPR, legitimate interest is one of six lawful bases for processing (consent, contract, legal obligation, vital interest, public tasks, or legitimate interest).
Notice Language	Every consent request must be accessible in English or any of the 22 languages listed in the Eighth Schedule to the Indian Constitution.	No requirement to provide notice in regional languages.
Consent Managers	Consent Managers, registered with the Data Protection Board, act on behalf of Data Principals to review, provide, manage, and withdraw consent.	No equivalent concept under the GDPR.
Data Breach Communication Timeline	Timeline not yet specified in the Act for notifying Data Principal and Data Protection Board of data breaches.	Breaches must be notified to the Supervisory Authority within 72 hours and possibly to affected Data Subjects.
Personal Data of Children	Consent from a parent/guardian required for processing personal data of children under 18.	Parental consent required for minors under age 16. EU Member States may lower this age to 13.
DPIA (Data Privacy Impact Assessment)	Only Significant Data Fiduciaries are required to conduct periodic DPIAs.	Data Controllers must conduct DPIAs for high-risk processing activities.
Nomination	Includes an additional right to nominate a person to exercise rights on behalf of the Data Principal. The Act omits the right to portability. The timeline to respond is not specified.	No right to nominate. GDPR provides the right to data portability. Organizations must respond to Data Subject requests within 30 days.
Cross-border Data Transfers	No mechanisms yet identified for transfers of personal data to other countries.	Specific mechanisms exist, including standard contractual clauses and binding corporate rules for transferring data outside the EU.
Significant Data Fiduciary	Designation based on factors like volume/sensitivity of data, risk to rights, sovereignty/integrity of India, electoral democracy, security of state, and public order.	No direct equivalent. However, entities performing high-risk processing may need DPIAs, a DPO, and stricter security measures under the GDPR.
DPO (Data Protection Officer)	Only Significant Data Fiduciaries must appoint a DPO as a point of contact for the Data Protection Board.	A DPO is mandatory if the organization is a public authority, conducts large-scale systematic monitoring, or processes special categories of data or criminal data on a large scale.
Penalties	Penalties can extend up to INR 250 crores.	Penalties can be up to €20 million or 4% of the firm’s worldwide annual revenue, whichever is higher.
Records	No explicit obligation to maintain Records of Processing Activities (ROPA) under the Act as of now. This may be clarified in future rules.	Data Controllers and Processors must maintain ROPA.

Comparative Compliance Strategies

Organizations operating in multiple jurisdictions must develop comprehensive compliance strategies that address the requirements of both the DPDPA and the GDPR. This involves:

Understanding the nuances of each regulation.
Implementing a unified data protection framework that meets the highest standards of both regulations.
Conducting regular audits to ensure ongoing compliance.

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Comparison Between DPDPA and GDPR