DCPLA Questions and Answers

The landmark judgment in “Justice K. S. Puttaswamy (Retd.) and Anr. vs. Union of India And Ors” delivered on August 24, 2017, reaffirmed that:

"The Right to Privacy is protected as an intrinsic part of the Right to Life and Personal Liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution."

This case is foundational to the development of privacy jurisprudence in India and has guided theformulation of the Indian Data Protection law.

The term “Opt-out” refers to a consent model in which individuals are automatically included in a data processing activity or program unless they explicitly indicate their desire not to participate.

Under the DSCI Privacy Framework, “Opt-out” is contrasted with “Opt-in,” where explicit affirmative consent is required before processing.

Opt-out is often implemented through mechanisms like pre-checked boxes or default settings, which the user can change. This is particularly common in direct marketing scenarios or cookies for analytics. The DAF-P© considers whether such consent mechanisms align with fairness and transparency principles.

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Section 43A of the Information Technology (Amendment) Act, 2008 does not prescribe a cap on the compensation amount. Instead, it states that if a body corporate fails to implement and maintain reasonable security practices and causes wrongful loss or gain, it shall be liable to pay damages by way of compensation. The compensation is determined based on the extent of harm or damage caused, and no maximum limit is specified in the provision.

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The DSCI Assessment Framework for Privacy (DAF-P©) outlines three key approaches for privacy assessment:

Principle-based assessment (evaluates implementation of privacy principles like purpose limitation, data minimization, etc.)

Organisational competence assessment (evaluates maturity of organizational processes and resources for privacy)

Privacy risk assessment (identifies and mitigates potential risks to personal data)

These approaches collectively enable a comprehensive evaluation of an organization’s privacy posture .

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The bank has been in a hectic expansion mode and has never been subject to the regulations concerning to the data privacy. This is a huge bank with over 200 million customers, the business operations sperad across many geographies and multiple operating business corrospondents enganed on behalf of the bank. Thus the bank has till date not identified various other laws related with the data privacy.

The consultant has helped bank implement the following processes -

1. Document the overall business organizations, various geographical presence, various business processes, business partners.

2. Identify all related data privacy laws and regulations that pertains to the various business processes, in each geography and map the regulatory requirements with each personal information being collected/processed.

3. Define the control requirements for each and every piece of the personal information based on the the geography/jurisdiction in which it is being processed.

4. Standardize the contractual clauses with the various business associates with respect to the processing og the personal information. Assign the accountability of the adherence by way of contract amendment. These clauses needs to be included in the new contract as and when they are created.

5. Implement a organization framework comprising the legal, compliance, regulatory and business teams to establish the method by which the new regulations will be tracked and the new controls be incorporated in the overall process.

6. Implement the method to assess companies’ compliance against these controls and implement the remediation methods if any non-compliance is identified.

The Information Technology (Amendment) Act, 2008 introduced critical provisions for data protection:

Section 43A: Mandates compensation for failure to protect personal data by a body corporate handling sensitive personal data or information (SPDI).

Section 72A: Imposes penalties for disclosure of information in breach of lawful contracts.

These two sections form the legal basis for protection of personal data under the IT Act in India.

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According to the DSCI Assessment Framework for Privacy (DAF-P©), risk-based prioritization is essential in planning privacy assessments. Organizations are advised to consider parameters such as the degree of harm from a potential privacy breach, the involvement of processes that handle sensitive personal data (e.g., PHI or biometrics), technology solutions that may affect privacy, and the extent of third-party involvement. These help determine the areas with high privacy risks needing immediate attention.

C (business-related IP) is typically an information security concern, not a privacy concern unless it involves personal data.

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While several factors can influence the review of a privacy policy, changes in the legal or regulatory environment are the most critical. The DSCI Privacy Framework underscores that privacy policies must be aligned with applicable laws and standards.

A change in the legal/regulatory regime may necessitate revisions to ensure ongoing compliance and avoid legal risks. Internal awareness and peer practices are secondary considerations in comparison.

The “Privacy Monitoring and Incident Management” practice in the DSCI Privacy Framework is responsible for:

Capturing privacy incidents

Conducting analysis

Learning from them through root cause identification

Improving privacy controls and governance

This practice area explicitly covers mechanisms for post-incident analysis and risk mitigation strategies.

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Personal Information under DSCI and global frameworks is information relating to an identified or identifiable individual. Whether the council’s map contains personal data depends on:

If the map, when combined with other information (like land records or property ownership data), could lead to identifying you as a resident or owner.

Hence, the answer is context-specific. If the map alone doesn't identify you, it's not personal information. But if combined with additional data, it may lead to your identification, thus qualifying it as personal information.

This aligns with DPF’s emphasis on “reasonably identifiable” individuals in assessing the scope of personal data.

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According to the DSCI Assessment Framework for Privacy (DAF‑P©), a "Personal Information Management Policy" is a foundational artefact that reflects the organization’s commitment and operationalization of privacy practices. It typically defines how personal information is collected, used, disclosed, retained, and disposed of across the organization.

This artefact not only outlines governance structures and responsibilities but also links to other aspects such as risk management, compliance tracking, and privacy notices. Hence, it is the logical first document for a privacy assessor to request.

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According to the DSCI Privacy Framework and as aligned with the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, under Section 43A of the Information Technology Act, 2008, the following are considered Sensitive Personal Data or Information (SPDI):

Password

Financial Information(such as bank account or credit card details)

Biometric Information(such as fingerprints, retina scans, etc.)

Medical Records and History

However,Sexual OrientationandCaste and Religious Beliefsare not explicitly included in the list of SPDI under Section 43A of the ITAA, 2008, though they may be protected under broader privacy considerations or sectoral regulations.

This classification helps in mandating appropriate security measures to protect such sensitive data, failure of which can result in compensation for damages to the affected individual due to negligence by the data processor or controller.

Privacy governance is about setting direction and defining roles and responsibilities across the organization for managing personal data. It:

B: Defines strategy and takes decisions on privacy-related matters

C: Enables execution of policies to handle operational privacy incidents

D: Ensures that privacy accountability is not overlooked

Option A is incorrect because governance is not limited to computer resources—it spans all organizational functions involving personal data processing .

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Under the Digital Personal Data Protection Act, 2023, a Data Fiduciary is defined as any person who alone or in conjunction with other persons determines the purpose and means of processing personal data. Therefore, A and D are correct.

Option B is incorrect because acting on behalf of a processor implies a sub-processor or related role, not a fiduciary.

Option C is incorrect because mere storage does not make an entity a Data Fiduciary.

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DSCI Privacy Framework recommends a holistic approach to incident management which includes:

Identification and timely notification of incidents (I)

Thorough investigation and effective remediation measures (II)

Conducting root cause analysis to prevent recurrence (III)

Educating users on how to recognize and report incidents (IV)

Each of these components plays a critical role in reducing risk exposure and ensuring continual improvement of the privacy program.

The company failed to defend itself against accusations by its clients most likely due to the fact that it did not have enough expertise in privacy and data protection. The company’s privacy program was designed and implemented by an internal consulting arm which had limited expertise in the domain, causing the program to be inadequate for the purpose of defending itself against accusations. Moreover, since the project was driven by CIO's office, there may have been a lack of coordination between different functions like Corporate Information Security and Legal functions which could also have contributed to the failure.

It is possible that there were gaps in the organizational measures deployed by XYZ as well as gaps in technology measures. For example, it is possible that although appropriate organizational measures were put in place, the technology measures were inadequate for protecting the sensitive data of its clients. In addition, it is possible that the company did not rigorously monitor compliance with these organizational and technological measures, thereby making it vulnerable to accusations by its clients.

It is also likely that XYZ was unable to fully comply with applicable privacy laws and regulations in the EU due to lack of awareness about their requirements as well as insufficient resources allocated for adapting to them. The EU GDPR requires companies to implement appropriate technical and organizational measures for the protection of personal data which could have been a challenge for XYZ given its limited expertise in this domain. Furthermore, even though it may have had some understanding of the legal requirements, there may have been difficulty in properly implementing them, which could have led to the accusations by its clients.

Finally, it is possible that XYZ failed to defend itself against client accusations because of a lack of communication between its different departments and functions. The company may not have had a clear understanding of the requirements and risks associated with data protection and privacy compliance which could have caused miscommunication among various stakeholders leading to inadequate responses when it was challenged by its clients.

Overall this case study demonstrates the importance of properly designing and implementing an effective privacy program in order to protect sensitive data from unauthorized access or misuse. Companies should ensure that they have adequate expertise in data protection as well as sufficient resources for adapting to changing regulatory requirements in order to avoid potential legal issues arising from client accusations. Effective communication and coordination across different departments and functions is also essential for successful data protection compliance.

It is recommended that companies invest in an ongoing training program to ensure that employees understand the importance of privacy, have an awareness of the legal requirements, and are able to properly implement security measures to protect sensitive data. Organizations should also consider implementing automated tools and technologies such as encryption, access control systems, identity management solutions, etc., which can help them better defend themselves against potential client accusations.

Under the “Visibility over Personal Information (VPI)” practice area of the DSCI Privacy Framework, the first and foundational step in any privacy implementation is to:

“Create an inventory of business processes and associated data elements involving personal information.”

This baseline mapping ensures that organizations understand what data is processed, where it resides, and how it flows across systems and third parties. This forms the basis for subsequent governance, risk assessment, and compliance alignment.

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Privacy-enhancing technologies (PETs) are critical for operationalizing privacy principles. According to the DPF©:

Data minimization (I): Collect only necessary data

Data scrambling (III), Obfuscation (VI), and Encryption (VII): Techniques to protect identity and data content

Data loss prevention (IV): Prevent unauthorized sharing or leakage

Data mirroring and intrusion prevention systems are primarily security mechanisms and not specifically privacy-focused. Data portability, while a right, is not a technology per se for “upholding” privacy but for enabling user control.

Thus, C includes the most appropriate privacy technologies.

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A good privacy notice, as guided by the DSCI Privacy Framework and other global frameworks, should be:

Easy to understand

Clear and concise

Accessible in multiple languages where appropriate

While being comprehensive is essential, overwhelming users with exhaustive and overly detailed information is discouraged. Overly lengthy notices may obscure important information and reduce usability. The objective is to balance completeness with clarity and brevity.

Thus, Option C, by suggesting excessive length, does not align with the characteristics of a good privacy notice.

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The statement reflects an organization's difficulty in operationalizing privacy safeguards in response to a known threat scenario. According to the DSCI Assessment Framework for Privacy (DAF-P©), "Capability" refers to an organization’s ability to implement and maintain technical, procedural, and administrative controls effectively.

A struggling security team in configuring rules for a known leakage scenario indicates a gap in technical expertise or resources, which directly correlates with a lack of "Capability." This category assesses how prepared an organization is in deploying privacy controls, managing incidents, and aligning security technologies with privacy requirements.

Thus, the challenge in configuring protective rules is best categorized under "Capability" as it denotes a functional inadequacy in handling privacy-related incidents.