The General Data Protection Regulation [GDPR] is a data privacy law that came into effect in the European Union [EU] in May 2018. While the regulation is targeted towards companies operating within the EU, it also applies to Indian companies that target EU residents or monitor their behaviour. The scope of GDPR is extraterritorial, meaning that even if the company is based outside of the EU, it may be subject to GDPR compliance requirements.
For Indian companies, complying with GDPR can be challenging as it requires navigating complex legal requirements & implementing data protection measures. However, non-compliance with GDPR can result in severe consequences, including hefty fines & damage to business reputation. To help Indian companies navigate GDPR compliance requirements, this Journal provides guidance & best practices for understanding the applicability of GDPR, complying with GDPR principles & data subject rights & navigating cross-border data transfers.
The General Data Protection Regulation [GDPR] has a broad scope & territorial applicability. It applies to the processing of personal data within the European Union [EU] & the European Economic Area [EEA].
The General Data Protection Regulation [GDPR] has a broad scope & applies to all companies that process personal data of EU citizens, regardless of whether they are based in the EU or outside it. The regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union. This means that if a company has an establishment in the EU, then the GDPR applies to it.
Even if a company does not have an establishment in the EU, the GDPR can still apply if the company targets EU individuals or monitors their behaviour. For example, if an Indian company offers goods or services to EU citizens, conducts marketing campaigns in the EU or tracks the online behaviour of EU citizens, then it may be subject to GDPR Regulations.
Several key factors determine the applicability of the General Data Protection Regulation [GDPR] to Indian companies. Here are the primary factors to consider:
Targeting EU individuals or monitoring their behaviour can have significant implications for Indian companies in relation to the General Data Protection Regulation [GDPR]. Here are the key impacts to consider:
Evaluating if your company falls under GDPR jurisdiction: To evaluate if your company falls under GDPR jurisdiction, you need to assess whether your business collects or processes data from individuals who are in the European Union. The GDPR applies to any business, regardless of location, that offers goods or services to EU residents or monitors their behaviour.
Appointing a representative in the EU, if necessary: The European Union General Data Protection Regulation [GDPR] requires businesses outside the EU that collect personal data of EU individuals to appoint a representative in the EU. This representative should be responsible for GDPR compliance, act as the point of contact for data protection authorities & data subjects & maintain records of processing activities.
Reviewing data transfer mechanisms & adequacy decisions: Reviewing data transfer mechanisms & adequacy decisions is an important step for Indian companies to comply with GDPR regulations. The GDPR requires that any personal data transferred outside of the EU must have adequate protection.
Complying with GDPR principles & data subject rights: To comply with GDPR principles & data subject rights, Indian companies should take several steps, including:
The GDPR imposes restrictions on transferring personal data from the European Union [EU] or the European Economic Area [EEA] to third countries that do not ensure an adequate level of data protection. If India does not have an adequacy decision, Indian companies must implement appropriate safeguards to ensure lawful data transfers. These safeguards can include:
Indian companies operating globally must navigate the complexities of balancing GDPR compliance with Indian data protection laws. It is essential to understand the requirements of both regulatory frameworks & develop strategies that align with the highest standards of data protection.
Consent & legitimate interests are two legal bases for processing personal data under GDPR. Indian companies need to carefully consider these aspects while collecting & processing personal data. Ensure that consent is obtained freely, specific, informed & unambiguous.
Indian companies must establish robust processes for managing data breaches & incident response in accordance with GDPR requirements. This includes promptly identifying & assessing breaches, notifying the appropriate supervisory authorities & affected individuals within the specified timeframes & taking necessary measures to mitigate the impact of the breach.
Under certain circumstances, Indian companies may be required to appoint a Data Protection Officer [DPO] as mandated by GDPR. A DPO is responsible for ensuring GDPR compliance, providing guidance on data protection matters & serving as a point of contact for supervisory authorities & individuals.
Best practices for data protection & privacy in cross-border scenarios:
Maintaining ongoing compliance & staying updated with regulations:
The GDPR empowers supervisory authorities in the EU to impose significant penalties & fines for violations of its provisions. The severity of the penalties depends on the nature, gravity & duration of the infringement. The maximum fines can be up to €20 Million or four percent (4%) of the company’s global annual turnover, whichever is higher, for certain serious violations.
Non-compliance with GDPR can result in significant reputational risks for Indian companies. Data breaches or violations of data subject rights can damage the company’s reputation, erode customer trust & lead to the loss of business opportunities.
GDPR provides individuals with the right to seek legal remedies & bring claims against organisations for violations of their data protection rights. This includes the right to compensation for damages suffered as a result of non-compliance. Data protection authorities in the EU have enforcement powers, including conducting investigations, imposing fines & issuing corrective measures.
Navigating GDPR can be complex, especially for Indian companies operating in a global context. Seeking legal guidance from experts in data protection & privacy is crucial to ensure compliance & effectively address the unique challenges faced. Adopting a privacy-focused approach that aligns with GDPR’s principles not only helps meet legal obligations but also fosters a culture of data protection & builds trust among customers & partners. The following five (5) summarises on the basic requirements to comply with the EU GDPR Regulation.
The major impacts of GDPR include strengthened data protection rights for individuals, stricter consent requirements, increased accountability & compliance obligations for organisations, mandatory data breach notifications & higher penalties for non-compliance.
The perspective of GDPR in India is mixed, with some organisations embracing it as a standard for data protection & privacy, while others face challenges in understanding & implementing its requirements.
Data protection laws in India have a significant impact on businesses as they require organisations to adopt robust data protection measures, obtain valid consent & comply with individuals’ data rights, while non-compliance can lead to penalties & reputational damage.
GDPR applies to Indian companies if they target EU individuals or monitor their behaviour & such companies may need to evaluate their data processing activities, implement appropriate safeguards for data transfers & comply with GDPR principles & data subject rights.