Consent under the Digital Personal Data Protection Act

Understanding Consent under India’s Digital Personal Data Protection Act (DPDPA)

The Digital Personal Data Protection Act (DPDPA) marks a significant advancement in India’s data privacy landscape. Central to this legislation is the concept of consent, which serves as the legal basis for processing personal data. For businesses operating in India, comprehending and implementing the consent requirements under the DPDPA is essential to ensure compliance and build trust with customers.

What is Consent under the DPDPA?

Under the DPDPA, consent is defined as an unambiguous indication of the data principal’s agreement to the processing of their personal data. Consent must be:

• Free: Given voluntarily without any coercion or undue influence.
• Specific: Related to a particular purpose of data processing.
• Informed: Based on clear information provided to the data principal.
• Unambiguous: Indicated through a clear affirmative action.
• Unconditional : It should come without any condition.

Key Requirements for Valid Consent

1. Explicit Consent
   • Affirmative Action: Consent must be obtained through a clear affirmative action, such as ticking a box or clicking ‘I agree’.
   • No Pre-Ticked Boxes: Use of pre-ticked boxes or implied consent mechanisms is not permissible.
2. Purpose Limitation
   • Specific Purposes: Consent must be obtained for specific, lawful purposes.
   • Separate Consent: If processing data for multiple purposes, consent should be obtained separately for each.
3. Withdrawal of Consent
   • Easy Withdrawal: Data principals must be able to withdraw consent as easily as it was given.
   • Processing Post-Withdrawal: Upon withdrawal, the processing of personal data must cease unless there is another lawful basis for processing.
4. Consent of Minors
   • Parental Consent: For individuals below the age of 18, consent must be obtained from the parent or lawful guardian.
   • Age Verification: Implement mechanisms to verify the age of data principals.
5. Record-Keeping
   • Proof of Consent: Organizations must maintain records evidencing that valid consent was obtained.
   • Audit Trails: Keep logs of when and how consent was obtained, and any updates or withdrawals.

Implementing Effective Consent Mechanisms

• Transparent Communication
  • Clear Language: Use simple, jargon-free language in consent requests.
  • Privacy Notices: Provide detailed privacy notices outlining data processing activities.
• Granular Consent Options
  • Specific Choices: Allow users to consent to different types of data processing separately.
  • Opt-In Models: Use opt-in mechanisms rather than opt-out.
• User-Friendly Interfaces
  • Accessibility: Ensure that consent forms are easily accessible and navigable.
  • Responsive Design: Optimize consent interfaces for all devices.
• Regular Updates
  • Policy Changes: Inform data principals of any changes to data processing policies.
  • Renewal of Consent: Obtain fresh consent if the purpose of data processing changes.

Consequences of Non-Compliance

• Financial Penalties
  • Hefty Penalties: Non-compliance can result in significant penalties, up to Rupees Two Hundred Fifty Crores.
• Legal Liability
  • Civil Suits: Data principals cannot initiate legal action for compensation due to harms suffered as there is no such provision under DPDPA as of now. (This page updated on 15.10.2024)
• Reputational Damage
  • Loss of Trust: Failure to comply with consent requirements can erode customer trust and damage brand reputation.

Role of the Data Protection Board (DPB)

• Regulatory Oversight
  • Enforcement: The DPB is responsible for monitoring compliance and enforcing the provisions of the DPDPA.
  • Guidelines: Issuance of codes of practice and guidelines for implementing consent requirements.
• Complaint Handling
  • Grievance Redressal: Addressing complaints from data principals regarding violations of their rights.

AMLEGALS Advantage in DPDPA Compliance

AMLEGALS is uniquely positioned to guide businesses through the complexities of the DPDPA’s consent requirements. Our advantages include:

• Expert Legal Counsel
  • Specialized Knowledge: Deep understanding of the DPDPA and related data privacy laws of India and of many jurisidctions like GDPR,DPDL, CCPA et al.
  • Customized Solutions: Tailored strategies to meet your organization’s specific needs.
• Comprehensive Compliance Services
  • Policy Drafting: Assistance in creating clear and compliant privacy policies and consent forms.
  • Consent Management Systems: Implementation of effective consent management platforms.
• Training and Awareness
  • Employee Training: Conducting workshops and training sessions for staff.
  • Ongoing Support: Continuous legal support to navigate regulatory changes.

By partnering with AMLEGALS, you ensure that your organization not only complies with legal obligations but also builds a strong foundation of trust with your customers.

Consent is a pivotal aspect of the DPDPA, embodying the principles of autonomy and control over personal data. Businesses must prioritize obtaining valid consent to lawfully process personal data and avoid severe penalties. With the right legal guidance and compliance measures, organizations can turn compliance into a competitive advantage.

Contact AMLEGALS

For expert assistance on implementing consent mechanisms under the DPDPA, contact AMLEGALS today.

• Email: dataprivacy@amlegals.com
• Phone: +91-844-848-0455
• Website: www.amlegals.com

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