Strategy for a successful Digital Personal Data Protection Act (DPDPA) compliance

The Digital Personal Data Protection Act, 2023 known famously as DPDPA recently got the assent of the President of India on 11th August 2023. The act applies to the processing of digital personal data (within the territory of India) collected online or collected offline and later digitised. The act also applies to processing digital personal data outside the territory of India if it involves providing goods and/or services to the data principals within the territory of India. The DPDP Act is India’s first data protection act, and it establishes a framework for the processing of personal data in India.

The DPDP Act aims to recognise the rights of individuals to protect their personal data in digital or non-digital form which is subsequently digitised. The act also aims to restrict use of such personal data of individuals by any other person for unlawful activities.

Privacy right typically includes the right to control personal information access to individual data and the right to be protected from unauthorised or unlawful processing or misuse.

Organisations are responsible to adhere to the act and manage data responsibly, inform individuals about data collection, and ensure secure storage and purging after use.

Below chart depicts rights and obligations across the data lifecycle and the responsibilities of the Board of India:

Data Lifecycle	Data Collection	Data Processing		Data Transfer	Transparency and Accountability
Data Principal	Consent and Consent withdrawals	Right to access information about personal data	Right to correction of personal data	Right to erasure	Right to grievance redressal and nominate	Duties of data principal
Data Fiduciary	Notice	Grounds of processing personal data	Certain legitimate cases	Security safeguards	Accountable for data processor	Data privacy impact assessments
	Verifiable parent / guardian consent	Additional obligations of significant data fiduciary	Data Processor engagement	Data retention	Data protection officer	Independent data audits
			Personal data breach notification	Processing of personal data outside India	Consent managers	Complying to Government notifications
Data Protection Board of India
Penalty	Grievance Redressal	Review and Appeal		Dispute Resolution

A successful implementation of DPDPA compliance requires a holistic approach, incorporating critical components and strategies. Here are key components and strategies to consider:

• Obtain commitment from senior leadership to prioritise and support DPDPA compliance. Ensure they understand the importance of data privacy

• Encourage collaboration between different departments and teams to ensure a coordinated approach to DPDPA compliance. Legal, IT, and business units should work together and be part of the project to ensure they provide necessary support

• Conduct a comprehensive data mapping exercise to identify what personal data your organisation processes, where it is stored, and how it is used. Maintain an up-to-date data inventory

• Perform DPIAs to assess and mitigate the privacy risks associated with data processing activities. This helps in identifying and addressing potential vulnerabilities

• Establish procedures for honouring data subject rights, including the right to access, correct, and erase personal data. Ensure data subjects can exercise rights easily

• Implement and manage user consent mechanisms for data processing activities. Ensure that users have the option to provide or withdraw consent

• Review and minimise the data organisations collect to ensure that they only collect and process data that is necessary for their intended purposes

• Define data retention and implement erasure practice

• Assess and manage the risks associated with third-party vendors and service providers that process personal data on organisation’s behalf

• Ensure that they also comply with DPDPA requirements

• Have necessary clauses embedded in the agreement

• Incorporate privacy by design approach into all products and services. Privacy should be an integral part of the design process from the outset

Maintain thorough documentation and maintain records of all data protection and privacy activities to demonstrate compliance to regulatory authorities

• Regularly test and validate the effectiveness of data protection and privacy controls to identify vulnerabilities and gaps

By implementing these critical components and strategies, organisations can successfully achieve DPDPA compliance, protect personal data, and demonstrate a commitment to respecting the privacy rights of individuals.

To simplify process, it is suggested to categorise the approach in four major areas mentioned below and harmonise it with cybersecurity strategies for reducing the risk of data breaches and non-compliance.

This can be further grouped based on readiness into before and after the rules and enforcements are communicated by the DPDPA board.

• Understand the DPDP Act:

        o Start with thoroughly understanding the provisions of the DPDPA. Familiarise yourself with the key requirements, principles, and standards outlined in the legislation

• Leadership Commitment:

     o Educate leadership on DPDPA and privacy best practices

• Data Mapping and Inventory:

     o Conduct a comprehensive data mapping exercise to identify what personal data your organisation processes and where it is stored. Create a data inventory to document this information

• Privacy Impact Assessment (PIA):

         o Perform a privacy impact assessment to evaluate the potential risks to individual’s privacy associated with your data processing activities

• Gap Analysis:

          o Conduct a gap analysis to identify areas where your organisation’s existing data protection and cybersecurity practices fall short of DPDPA requirements

• Define roles and responsibilities of Data Protection Officer (DPO), grievance officer, CRO, CDO, CIO and data privacy managers:

           o DPO would be SPOC for external entities and is responsible for ensuring compliance with the DPDPA while others need to strategically support

• Privacy Policies and Procedures:

            o Develop and update your organisation’s privacy policies and procedures to align with the DPDPA. Ensure that employees are aware and trained

• Incident Response Plan:

           o Develop and implement an incident response plan to handle data breaches and incidents that could compromise the security of personal data

• Data Subject Rights:

            o Establish procedures for honouring data subject rights, including the right to access, correct, and erase personal data

• Consent Mechanisms:

           o Implement consent mechanisms to obtain and manage user’s consent for data processing. Ensure users have the option to opt in or opt out of data collection

• Data Request Mechanisms (DRM):

           o Implement DRM to obtain and manage users’ requests to update or erase data. Ensure users have access request status tracking mechanism

• Security Measures:

           o Enhance cybersecurity measures to protect personal data. This includes encryption, access controls, regular security audits, and updates

• Data Minimisation:

           o Review and control data that is collected to ensure it is for intended purpose

• Vendor Assessment:

           o Assess and ensure the DPDPA compliance of third-party vendors and service providers that process personal data on the organisation’s behalf

• Cross-Border Data Transfer:

           o If you transfer data internationally, ensure that cross-border data transfers follow the DPDPA, which may require standard contractual clauses or other mechanisms

• Privacy by Design:

             o Implement a privacy by design approach when developing new products or services, integrating privacy into the development process from the outset

• Appoint a DPO:

              o DPO is responsible for ensuring compliance with the DPDPA and ensure proper reporting

• Training and Awareness:

       o Conduct training and awareness programmes to educate employees on data protection and privacy best practices

• Documentation and Records:

         o Maintain thorough documentation and records of data protection and cybersecurity activities to demonstrate compliance to regulatory authorities

• Legal and Regulatory Consultation:

          o Consult with legal and regulatory experts to ensure your organisation is fully compliant with the DPDPA

• Testing and Validation:

          o Test and validate the effectiveness of your cybersecurity measures and privacy controls to identify vulnerabilities and gaps

• Reporting and Accountability:

           o Establish a reporting and accountability framework to track and report data breaches, compliance efforts, and data protection activities

• Regular Audits and Assessments:

           o Conduct regular audits and assessments of your data protection and cybersecurity practices to ensure ongoing compliance with the DPDPA

Learning from common challenges and avoiding mistakes during DPDPA implementation is crucial for the success of the project. Some common challenges and ways to avoid them and navigate the complexities of DPDPA implementation successfully are mentioned below:

• Challenge: Without support from the senior leadership, DPDPA implementation can face resistance and insufficient resources

• Avoidance: Secure commitment from top management early in the process, emphasising the legal and reputational risks of non-compliance

• Challenge: Resistance from employees or stakeholders can impede DPDPA implementation efforts

• Avoidance: Ensure Top-Down approach and get buy-in from your key stakeholders. Communicate the benefits of compliance, provide training, and involve employees in the process to mitigate resistance

• Challenge: Inaccurate or incomplete data mapping can result in non-compliance due to unknown data processing activities

• Avoidance: Conduct a thorough data mapping exercise, involving relevant stakeholders, and maintain an updated data inventory

• Challenge: Non-availability of data lifecycle management for function or process specific data

• Avoidance: Define policy for data lifecycle management for function or process specific data with purpose, need and its retention period so that it can be purged if not required

• Challenge: Weak access controls can result in unauthorised access to personal data, leading to data breaches

• Avoidance: Implement strong access controls, role-based permissions, and regular access reviews to limit access to authorised personnel

• Challenge: Failure to implement effective consent mechanisms can result in non-compliance with DPDPA requirements for user’s consent

• Avoidance: Implement and manage user-friendly consent mechanisms that allow users to provide and withdraw consent easily

• Challenge: An ineffective incident response plan can lead to poor management of data breaches and non-compliance with reporting requirements

• Avoidance: Develop a robust incident response plan, conduct drills, and ensure it complies with DPDPA reporting requirements

• Challenge: Unmanaged third-party vendor risks can expose personal data to non-compliant processing

• Avoidance: Assess and manage the risks associated with third-party vendors and ensure that they comply with DPDPA, and include data protection clauses in contracts

• Challenge: Inadequate accountability and reporting structures can result in unaddressed compliance issues

• Avoidance:

o Establish a reporting and accountability framework to track and report data breaches, compliance efforts, and data protection activities

o Define the roles and responsibilities at the organisation level

• Challenge: Ignoring legal and regulatory counsel can lead to non-compliance and legal issues

• Avoidance: Consult with legal and regulatory experts to ensure full compliance and stay informed about changing regulations

• Challenge: It is initiated as a project and then the team disintegrated

• Avoidance: Ensure there are proper roles and responsibilities defined and the data lifecycle processes are tested / audited regularly