India DPDPA: Article 8 – General Obligations of Data Fiduciary
8. General Obligations of Data Fiduciary
(1) A Data Fiduciary shall, irrespective of any agreement to the contrary or failure of a Data Principal to carry out the duties provided under this Act, be responsible for complying with the provisions of this Act and the rules made thereunder in respect of any processing undertaken by it or on its behalf by a Data Processor.
(2) A Data Fiduciary may engage, appoint, use or otherwise involve a Data Processor to process personal data on its behalf for any activity related to offering of goods or services to Data Principals only under a valid contract.
(3) Where personal data processed by a Data Fiduciary is likely to be—
(a) used to make a decision that affects the Data Principal; or
(b) disclosed to another Data Fiduciary,
the Data Fiduciary processing such personal data shall ensure its completeness, accuracy and consistency.
(4) A Data Fiduciary shall implement appropriate technical and organisational measures to ensure effective observance of the provisions of this Act and the rules made thereunder.
(5) A Data Fiduciary shall protect personal data in its possession or under its control, including in respect of any processing undertaken by it or on its behalf by a Data Processor, by taking reasonable security safeguards to prevent personal data breach.
(6) In the event of a personal data breach, the Data Fiduciary shall give the Board and each affected Data Principal, intimation of such breach in such form and manner as may be prescribed.
(7) A Data Fiduciary shall, unless retention is necessary for compliance with any law for the time being in force,—
(a) erase personal data, upon the Data Principal withdrawing her consent or as soon as it is reasonable to assume that the specified purpose is no longer being served, whichever is earlier; and
(b) cause its Data Processor to erase any personal data that was made available by the Data Fiduciary for processing to such Data Processor.
Illustrations.
(I) X, an individual, registers herself on an online marketplace operated by Y, an e-commerce service provider. X gives her consent to Y for the processing of her personal data for selling her used car. The online marketplace helps conclude the sale. Y shall no longer retain her personal data.
(II) X, an individual, decides to close her savings account with Y, a bank. Y is required by law applicable to banks to maintain the record of the identity of its clients for a period of ten years beyond closing of accounts. Since retention is necessary for compliance with law, Y shall retain X’s personal data for the said period.
(8) The purpose referred to in clause (a) of sub-section (7) shall be deemed to no longer be served, if the Data Principal does not––
(a) approach the Data Fiduciary for the performance of the specified purpose; and
(b) exercise any of her rights in relation to such processing, for such time period as may be prescribed, and different time periods may be prescribed for different classes of Data Fiduciaries and for different purposes.
(9) A Data Fiduciary shall publish, in such manner as may be prescribed, the business contact information of a Data Protection Officer, if applicable, or a person who is able to answer on behalf of the Data Fiduciary, the questions, if any, raised by the Data Principal about the processing of her personal data.
(10) A Data Fiduciary shall establish an effective mechanism to redress the grievances of Data Principals.
(11) For the purposes of this section, it is hereby clarified that a Data Principal shall be considered as not having approached the Data Fiduciary for the performance of the specified purpose, in any period during which she has not initiated contact with the Data Fiduciary for such performance, in person or by way of communication in electronic or physical form.
What Article 8 Means for Your Business
Article 8 contains the core ongoing obligations of every Data Fiduciary. These are not one-time setup requirements, they are continuous duties that must be embedded into operational processes. Article 8 is one of the most practically significant provisions of the Act for compliance teams.
- You are responsible for compliance with the Act regardless of whether your data processor or a contractual counterparty fails, the obligation sits with the Data Fiduciary irrespective of fault or agreement to the contrary.
- Data Processors must be engaged under a valid written contract, verbal or informal arrangements are not sufficient.
- You must implement appropriate technical and organisational measures to ensure compliance, documented policies, access controls, encryption, and regular reviews are expected.
- Reasonable security safeguards must be maintained at all times to prevent personal data breaches, this includes data held by your processors on your behalf.
- In the event of a personal data breach, you must notify both the Data Protection Board of India and each affected Data Principal in the prescribed form and manner, there is no materiality threshold, all breaches must be reported.
- Personal data must be erased once the specified purpose is no longer being served, or upon consent withdrawal, whichever comes earlier, unless retention is legally required.
- You must publish contact details of your Data Protection Officer or a designated person capable of answering Data Principal queries about processing.