Is GDPR Applicable in India? A Comprehensive Guide

The General Data Protection Regulation (GDPR) is one of the strictest privacy and security laws globally, adopted by the European Union (EU) in May 2018. It has revolutionized how organizations manage personal data, extending its impact far beyond the EU. But what about its applicability to India? How does GDPR influence Indian businesses, and how can they ensure compliance?

This guide delves into the application of GDPR in India, its enforcement criteria, the legal basis for processing, and compliance strategies.

What Is GDPR?

The General Data Protection Regulation (GDPR) is a legal framework aimed at protecting the personal data and privacy of individuals within the European Union (EU) and the European Economic Area (EEA). It also governs the transfer of personal data outside these regions, setting a global benchmark for data protection standards.

Is GDPR Applicable in India?

The short answer is: Yes, under specific circumstances. GDPR’s extraterritorial reach means it can apply to businesses outside the EU, including Indian entities.

When Does GDPR Apply?

GDPR applies to:

1. Entities Based in the EU: All organizations operating within the EU must comply with GDPR.
2. Entities Outside the EU: GDPR applies if they:
   • Process personal data of individuals in the EU.
   • Offer goods or services to individuals in the EU, regardless of payment.
   • Monitor the behavior of individuals in the EU (e.g., through website tracking).

Relevance for Indian Businesses

Indian companies must comply with GDPR if they:

• Provide goods or services to EU customers (e.g., e-commerce websites targeting EU markets).
• Handle personal data of EU residents (e.g., outsourcing firms managing EU client data).
• Use tools to track or analyze the behaviour of EU users (e.g., analytics platforms targeting EU traffic).

Key Point: GDPR does not apply to Indian businesses if they do not meet these criteria. However, for companies dealing with EU clients, compliance is crucial to avoid penalties and safeguard business relationships.

Legal Grounds for Processing Under GDPR

Organizations can process personal data only if it is based on one of six legal grounds:

1. Consent: Explicit consent is obtained from the individual.
2. Contractual Necessity: Processing is necessary to fulfil a contract.
3. Legal Obligation: Required to comply with legal regulations (e.g., tax laws).
4. Vital Interests: Necessary to protect someone’s life or well-being.
5. Public Interest: Data is processed for public interest tasks or official authority.
6. Legitimate Interests: Processing is essential for legitimate business interests, provided it does not override individual rights.

Common Questions About GDPR’s Applicability

Does GDPR Apply to Non-EU Citizens?

GDPR focuses on the location of individuals, not their citizenship. It applies to the personal data of individuals residing in the EU or EEA, regardless of nationality.

• An Indian citizen living in Germany is protected under GDPR.
• An EU citizen residing in India is not covered unless their data processing is connected to the EU.

Does GDPR Apply to US Customers?

GDPR applies if:

• The organization processing data is based in the EU.
• The US customer is physically present in the EU when their data is collected.

Does GDPR Cover the UK?

Post-Brexit, the UK is adopting its own version which is known as the UK GDPR in line with the EU’s regulations. Companies that operate in both regions must adhere to both rules.

GDPR Compliance Checklist for Businesses

1. Map Data Processing Activity: Identify the types of personal data that are collected and stored, the method of storage and how it is used.
2. Obtain Consent Valid: Ensure data collection is based on consent when needed.
3. Secure Data: Install measures that include encryption, access control, and periodic audits.
4. Create transparent privacy policies: Provide clear and easy-to-read policies for users.
5. Respect Data Subject Rights: Enable data access deletion, correction and portability.
6. A Data Protection Officer (DPO): required to process on a large scale of data that is sensitive.

GDPR Enforcement in India

GDPR is applicable to Indian companies that handle EU residents’ personal information or are aiming at EU markets. EU Privacy Authorities (DPAs) can punish businesses that aren’t in compliance that are not located within the EU.

Data Protection Laws in India

India is currently not able to implement a GDPR-like framework, however, there is a Digital Personal Data Protection Act (DPDPA) 2023 is a plan to create similar rules. Indian companies that handle EU data frequently adopt GDPR-adjusted procedures to conform to international norms.

Frequently Asked Questions (FAQs)

1. What is the lawful basis for processing data under GDPR?
   Six reasons: consent, contract need, obligation to comply with law important interests and public benefit and legitimate rights.
2. Is GDPR legally binding for India?
   Yes, it is true that Indian companies process EU residents’ data, or provide services for the EU.
3. Do GDPR rules apply to citizens of non-EU countries?
   The GDPR does not apply to all individuals who reside within either the EU or EEA regardless of nationality.
4. Does my site require GDPR conformity?
   Yes, if it gathers information on EU residents or seeks to target EU users.
5. What is GDPR? for?
   General Data Protection Regulation.

Conclusion

The GDPR’s extraterritorial impact means it is highly relevant for Indian companies that interact with EU customers or markets. If they adopt GDPR-compliant methods, companies can improve data security increase customer trust and avoid fines. With India’s DPDPA coming up active measures to protect your data are more important than ever before.