DPDPA vs GDPR: 7 Key Differences

The Digital Personal Data Protection Act (DPDPA) is India's new data protection law, while the General Data Protection Regulation (GDPR) is the EU's landmark privacy regulation. Here are the key differences between the two:

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Geographic Scope

• DPDPA: Covers digital personal data processed within India or related to offering goods/services to individuals in India
• GDPR: Applies to processing of personal data of individuals residing in the European Union, regardless of the entity's location

Data Types Covered

• DPDPA: Regulates only digital personal data
• GDPR: Covers both digital and non-digital personal data

Key Terms

Individual Rights

• DPDPA: Data principals can access, correct, erase, and restrict processing of their personal data
• GDPR: Additional rights like data portability and objecting to automated decision-making

Consent Requirements

• DPDPA: Consent must be freely given, specific, informed, unconditional, and through clear action
• GDPR: Similar requirements, but does not explicitly mention the "unconditional" aspect

Cross-Border Data Transfers

• DPDPA: Transfers allowed to countries not on a restricted list
• GDPR: Strict rules requiring approved countries or safeguards like Standard Contractual Clauses

Enforcement and Penalties

• DPDPA: Maximum penalty of ₹500 crores ($61 million) or 4% of global turnover
• GDPR: Maximum penalty of €20 million or 4% of global turnover

While both regulations aim to protect personal data, the DPDPA and GDPR differ in their scope, terminology, individual rights, consent rules, data transfer requirements, and enforcement mechanisms.

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Who and What is Covered

Geographic Reach

The DPDPA and GDPR have a broad territorial reach, extending beyond their respective regions to ensure data protection standards are upheld globally.

Types of Data Covered

The GDPR covers a broader range of data types compared to the DPDPA, which is limited to digital personal data.

Key Terms Explained

The DPDPA and GDPR use different terms to refer to key entities and individuals involved in data processing. Understanding these terms is crucial for compliance.

Data Fiduciary vs. Data Controller

While the terms differ, both the "data fiduciary" under the DPDPA and the "data controller" under the GDPR refer to the entity that makes decisions about personal data processing.

Data Principal vs. Data Subject

Both the DPDPA and GDPR aim to give individuals rights over their personal data. However, the GDPR provides more rights, such as data portability and objecting to automated decision-making.

Individual Rights

Access Personal Data

Both the DPDPA and GDPR allow individuals to request access to their personal data held by organizations:

Correct and Delete Personal Data

The regulations empower individuals to rectify inaccurate personal data and request erasure under certain circumstances:

Object to and Restrict Data Processing

Individuals can object to the processing of their personal data in specific situations:

Additionally, the GDPR grants data subjects the right not to be subject to solely automated decision-making, including profiling, which significantly affects them. The DPDPA does not explicitly address this aspect, but grants minors the right to object to automated profiling.

Obligations for Data Handlers

Data Security Measures

Organizations must take steps to protect personal data from unauthorized access, loss, or damage.

Breach Notification Requirements

In case of a personal data breach, organizations must notify authorities and affected individuals.

Privacy by Design and Default

Consent Rules

Valid Consent Requirements

For consent to be considered valid under the DPDPA, it must meet these conditions:

• Given freely: Consent cannot be forced or pressured. There should be no negative consequences for not providing consent.
• Specific: Consent must be given for the specific purpose of collecting and processing the personal data.
• Informed: Individuals must be provided clear information about the types of personal data collected, the purpose of processing, and any third parties involved.
• Unconditional: Consent cannot be a requirement for receiving services or benefits, except when data processing is necessary for the service.
• Clear action: Consent must be given through an affirmative action, such as ticking a box or providing a digital signature. Silence or inaction does not count as consent.

The GDPR has similar requirements for valid consent, including being freely given, specific, informed, and unambiguous. However, the GDPR does not explicitly mention the "unconditional" aspect.

Children's Personal Data

Both regulations have specific rules for processing children's personal data:

While the DPDPA sets a uniform age limit of 18 for obtaining parental consent, the GDPR allows for some flexibility based on the laws of individual EU member states.

Cross-Border Data Transfer Rules

GDPR's Data Transfer Requirements

The GDPR has strict rules for transferring personal data outside the European Union (EU) to ensure proper data protection:

• Approved Countries: The European Commission can decide if a non-EU country provides adequate data protection. If approved, personal data can flow freely to that country. Only a few countries like Switzerland, Canada, and New Zealand are currently approved.
• Transfer Safeguards: If a country is not approved, organizations must use safeguards for transferring data outside the EU, such as:

  Safeguard	Description
  Standard Contractual Clauses (SCCs)	Model data transfer clauses approved by the European Commission.
  Binding Corporate Rules (BCRs)	Internal rules for multinational companies transferring data within their group.
  Approved Codes of Conduct and Certification Mechanisms	Specific codes and certifications approved by the EU.

• Consent or Other Exceptions: If no approved country or safeguards exist, organizations can rely on explicit consent from the individual or other exceptions specified in the GDPR, such as contractual necessity or legitimate interests.

DPDPA's Data Transfer Regulations

The DPDPA takes a different approach to cross-border data transfers:

• The Central Government will maintain a list of "notified countries" to which personal data transfers are restricted or prohibited.
• Data fiduciaries (entities processing personal data) can transfer data to any country not on the restricted list without additional safeguards.
• The DPDPA does not provide specific criteria for determining which countries will be on the restricted list, leaving this decision to the discretion of the Central Government.

This approach focuses more on governmental discretion to determine safe data transfer jurisdictions rather than imposing specific transfer mechanisms on organizations.

Enforcement and Penalties

Penalty Amounts

The DPDPA imposes much higher penalties for non-compliance compared to the GDPR:

The DPDPA's maximum penalty of ₹500 crores (approximately $61 million) is significantly higher than the GDPR's €20 million cap. This shows India's strong intent to enforce strict compliance with its data protection rules.

Enforcement Authorities

DPDPA: The Data Protection Board of India is the main enforcement authority under the DPDPA. Its key responsibilities include:

• Monitoring and enforcing compliance with the DPDPA
• Investigating data breaches and non-compliance cases
• Addressing grievances from individuals (data principals)
• Issuing orders, codes of practice, and guidelines
• Imposing penalties for violations

GDPR: The GDPR relies on a decentralized enforcement model with Data Protection Authorities (DPAs) in each EU member state. These DPAs have regulatory and investigative powers, such as:

• Conducting audits and investigations
• Issuing warnings and reprimands
• Imposing administrative fines
• Suspending data transfers to other countries
• Approving binding corporate rules and codes of conduct

While the Data Protection Board in India has a centralized mandate, the GDPR's enforcement is carried out by individual national DPAs across the EU.

Conclusion

Key Differences in a Nutshell

• Scope: GDPR covers personal data of EU residents globally, while DPDPA focuses on digital personal data processed within or related to India.
• Terminology: GDPR uses "data controller" and "data subject," DPDPA refers to "data fiduciary" and "data principal."
• Legal Bases: GDPR allows six lawful bases for processing, including legitimate interests, while DPDPA only permits consent or "legitimate uses."
• Individual Rights: GDPR grants rights like data portability and automated decision-making objection, not explicitly covered under DPDPA.
• Consent Requirements: Both require specific, informed consent, but DPDPA may allow for less granular consent compared to GDPR.
• Data Transfers: GDPR has stricter rules for cross-border transfers, while DPDPA is more lenient initially.
• Penalties: DPDPA imposes significantly higher maximum penalties (up to ₹500 crores or $61 million) compared to GDPR's €20 million cap.

Compliance Considerations for Businesses

• Organizations operating in India, the EU, or both regions must implement robust compliance programs to meet the respective regulations.
• Review data handling practices, including collection, processing, storage, and transfer mechanisms.
• Revise consent management processes, particularly for businesses relying on GDPR's "legitimate interests" basis, which is not a valid legal ground under DPDPA.
• Establish data breach notification and grievance redressal procedures to comply with DPDPA's stringent requirements.
• Companies classified as "significant data fiduciaries" under DPDPA must appoint independent auditors and conduct data protection impact assessments.
• Multinational organizations should adopt a comprehensive, harmonized approach to data protection, considering the highest standards across regions.
• Conduct regular employee training, audits, and risk assessments to maintain ongoing compliance and mitigate potential penalties.

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