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On Friday, the Indian government released the draft Digital Personal Data Protection Rules, requiring social media and online platforms to obtain verifiable consent from parents before children can create accounts.
Parents must validate their identity and age using voluntary identity proof issued by a recognized legal entity or the government, according to the draft rules.
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Entities can only use personal data if individuals have consented through consent managers, who are responsible for managing consent records.
Digital platforms must verify that anyone claiming to be a child’s parent is an adult and can be identified for legal compliance when processing children’s data.
“A Data Fiduciary shall adopt appropriate technical and organizational measures to ensure that verifiable consent of the parent is obtained before the processing of any personal data of a child,” the draft rule said.
The Union Ministry of Electronics and Information Technology plans to assign trained data experts across various central government ministries to improve data usage. E-commerce, social media, and gaming platforms will be considered data fiduciaries.
Data fiduciaries must retain data only for the duration of consent and delete it afterward, according to the draft rules. Draft rules have been released after 14 months since Parliament approved the Digital Data Protection Bill 2023.
“Draft of rules proposed to be made by the central government in exercise of the powers conferred by sub-sections (1) and (2) of section 40 of the Digital Personal Data Protection Act, 2023 (22 of 2023), on or after the date of coming into force of the Act, are hereby published for the information of all persons likely to be affected thereby,” the draft notification said.
The draft rules have mentioned the process of suspending or cancelling registration of consent manager in case of repeated violation, but there is no mention of penalties that were approved under the DPDP Act, 2023.
The Act has the provision to impose a penalty of up to Rs 250 crore on data fiduciaries.
IndusLaw Partner Shreya Suri said that there was an anticipation of introducing thresholds for data breach reporting, where minor breaches could have had fewer compliance obligations.
“However, the current draft treats all breaches uniformly, requiring the same level of reporting and notification to the Data Protection Board and affected data principals, without granting any discretion whatsoever to data fiduciaries. Additionally, while the rules outline certain considerations for reasonable security practices, the lack of detailed guidance leaves room for varied interpretations,” Suri said.
Draft rules are open for public consultation until February 18. They can be viewed on the MyGov website for comments. Final rules will be made afterward.
Mayuran Palanisamy, a Partner at Deloitte India, stated that the draft rules provide important guidance for businesses in India. They outline compliance requirements for Significant Data Fiduciaries, the registration and responsibilities of Consent Managers, the establishment and operation of the Data Protection Board, data breach notification procedures, and timelines for Data Fiduciaries to address grievances.
“We foresee that businesses will face some complex challenges in managing consent as it forms the heart of the law. Maintaining consent artefacts and offering the option to withdraw consent for specific purposes could necessitate changes at the design and architecture level of applications and platforms,” Palanisamy said.
Organizations must invest in technical infrastructure and processes to meet requirements. This includes improving data collection practices, implementing consent management systems, establishing clear data lifecycle protocols, and ensuring these practices are effectively applied.
