Addressing Concerns of PwDs in the DPDP Act, 2023

Syllabus: Vulnerable People

•Source: TH*

Context: Disability rights activists have raised concerns over Section 9(1) of the Digital Personal Data Protection (DPDP) Act, 2023, which mandates that PwDs with legal guardians must obtain consent from their guardian for data processing.

Understanding Concerns of PwDs in the DPDP Act, 2023:

• What is Guardianship?

Governed by two laws:

• Rights of Persons with Disabilities (RPWD) Act, 2016: Provides for limited guardianship, allowing PwDs some decision-making rights. National Trust Act (NT Act), 1999: Grants full guardianship for PwDs with autism, cerebral palsy, and intellectual disabilities.

• Rights of Persons with Disabilities (RPWD) Act, 2016: Provides for limited guardianship, allowing PwDs some decision-making rights.

• National Trust Act (NT Act), 1999: Grants full guardianship for PwDs with autism, cerebral palsy, and intellectual disabilities.

Issue: DPDP Act does not differentiate between these laws, creating confusion over decision-making authority.

• Who is a Data Fiduciary?

• Any entity that collects, processes, or stores personal data. Required to obtain consent before processing data and ensure compliance with privacy laws.

• Any entity that collects, processes, or stores personal data.

• Required to obtain consent before processing data and ensure compliance with privacy laws.

• Who is a Data Principal?

• The individual whose data is being processed. For PwDs with legal guardians, the DPDP Act includes their guardian within the definition of Data Principal, raising concerns about autonomy and privacy.

• The individual whose data is being processed.

• For PwDs with legal guardians, the DPDP Act includes their guardian within the definition of Data Principal, raising concerns about autonomy and privacy.

Key Provisions of DPDP Rules & Their Impact on PwDs:

• Section 9(1): Mandates verifiable consent from a legal guardian before processing the personal data of a PwD with a guardian.

• Rule 10(2): Requires verification that the guardian is legally appointed under RPWD Act or NT Act.

• Definition of PwDs in the Act: Covers individuals with long-term disabilities who cannot take legally binding decisions.

Issues with DPDP Rules & PwD Concerns:

• Loss of Digital Autonomy: The law assumes PwDs cannot manage their data, reinforcing stereotypes and restricting their digital independence.

• Conflict Between Guardianship Laws & Digital Rights: The NT Act enforces full guardianship, while the RPWD Act allows limited guardianship, but DPDP fails to distinguish between the two.

• Data Privacy & Consent Issues: PwDs may be forced to disclose personal information to platforms, raising data security risks.

• Unclear whether guardians bear legal liability for data misuse.

• No Accessibility Measures in Digital Platforms: Many popular apps and websites remain inaccessible to PwDs, further limiting digital participation.

• Gender & Disability Intersectionality Ignored: Women with disabilities may face barriers in accessing essential online services (e.g., purchasing menstrual hygiene products).

Way Ahead:

• Remove Blanket Guardian Consent Requirement: Recognize PwDs’ digital autonomy unless a court explicitly states full guardianship is needed.

• Differentiate Between Full & Limited Guardianship: Align DPDP Act with RPWD & NT Act to ensure legally sound consent mechanisms.

• Improve Accessibility & Digital Inclusion: Ensure government and private digital services comply with accessibility standards.

• Clarify Legal Liabilities for Guardians: Define data-related responsibilities and penalties for both PwDs and their guardians.

Conclusion:

The DPDP Act’s consent clause for PwDs raises serious concerns about autonomy, privacy, and digital accessibility. While protecting vulnerable individuals is essential, the law must ensure inclusivity and respect for decision-making rights. Addressing ambiguities in guardianship roles and promoting digital accessibility will be key to ensuring fair implementation.

• Does the Rights of Persons with Disabilities Act, 2016 ensure effective mechanism for empowerment and inclusion of the intended beneficiaries in the society? Discuss. (2017)