Over the past few years, the ripple effects of GDPR and the EU’s wider data governance regime have spread to, and influenced, the rest of the world – including India – especially with respect to the latter’s ongoing efforts to overhaul its domestic data protection framework. Furthermore, certain recent developments, involving key legislative and policy interventions, promise to fundamentally transform the country’s digital future, much like Europe’s. For instance, by the end of the year, two far-reaching laws – a ‘Digital Personal Data Protection Act’ (“DPDP”) and a ‘Digital India Act’ – may both reach fruition with respect to digitized personal data and non-personal data, respectively.
However, major gaps persist when it comes to distinguishing between the two. This distinction has assumed additional importance today for India – poised as it is on the cusp of a new governance architecture, replete with consequences related to collection, consent, processing, storage, protection, breach, exploitation, sovereignty, ownership, and localization. Accordingly, it is time that the unique techno-legal challenges and opportunities connected with personal and non-personal data, respectively, were separately examined – including to analyze their discrete regulatory requirements and commercial scope. At the same time, paradigmatic boundaries within the personal/non-personal continuum have increasingly blurred on account of the rising use of mixed datasets and de-anonymization techniques, the regulation of which has demanded urgent governmental attention.
In light of the above – ‘Data+’ – a special multipart series on data governance, will focus on analyzing personal and non-personal data separately while exploring the various legal, business, and regulatory issues associated with the two – including with respect to certain extraordinary innovations proposed under DPDP relative to GDPR, such as in respect of ‘deemed’ consent; sensitivity, volume, and harm; and relatedly, ‘significant data fiduciaries’. This note – the first of this special series – is divided into two sections. In Section I, we provide a brief summary of whether, and how, India’s existing data protection framework addresses the definitions of, and the distinction between, personal and non-personal data, respectively. In Section II, we provide an overview of India’s staggered legislative trajectory in this regard. Further into the series, we will analyze India’s proposed digital governance paradigm, including with respect to differences between personal and non-personal data.