Persons with Disabilities and the Digital Personal Data Protection Act, 2023

Nowadays, since data is so crucial, a person’s identity is their only real asset. This highlights how essential it is to get informed consent before collecting data. Before any personal information is taken from someone, they must first give their permission.

In India, specific regulations govern the sharing of images or information about children, including those with disabilities, online. These regulations primarily aim to protect their privacy, dignity, and overall well-being, reflecting a shift towards a rights-based approach rather than a charity-based one 

The Digital Personal Data Protection Act (DPDPA) addresses the rights of persons with disabilities, focusing on their consent, autonomy, and privacy protection in the digital space.

• Digital Personal Data Protection Act (DPDPA): A law aimed at regulating how personal data is collected and processed in India, with specific consideration for persons with disabilities.
• Persons with Disabilities: Defined as individuals with long-term physical, mental, intellectual, or sensory impairments that hinder their participation in society.

• Main Issues with DPDPA:
  • Lack of Definition: The DPDPA does not clearly define “persons with disabilities,” leading to confusion about their rights and protections.
  • Inadequate Autonomy: The Act groups persons with disabilities with children, which undermines their dignity and autonomy.
  • Limited Guardian Power: Legal guardians are given excessive power, creating risks for abuse and limiting the decision-making abilities of persons with disabilities.
  • Sensitive Personal Data (SPD): The DPDPA fails to recognize SPD, which increases vulnerability for people with disabilities regarding health and financial data breaches.
  • Digital Accessibility: There are no provisions in the DPDPA for ensuring digital accessibility, hindering persons with disabilities from giving informed consent online.

To address these shortcomings, the policy brief suggests the following amendments to the DPDPA:

• Define “Persons with Disabilities”: Clearly define which individuals fall under this category in the DPDPA to protect against potential misinterpretations.
• Separate Provisions: Create distinct sections for persons with disabilities, avoiding the combination with children, to respect their autonomy.
• Supportive Guardianship: Allow for limited guardianship that emphasizes mutual decision-making, helping foster a joint decision process where applicable.
• Exemptions for Verifiable Consent: Implement regulations that exempt certain digital services from requiring verifiable consent from guardians, facilitating easier access to essential services (like online helplines).
• Recognize SPD: Reinstate SPD categories in the DPDPA to protect sensitive information of persons with disabilities and provide additional safeguarding measures.
• Ensure Digital Accessibility: Establish mandatory digital accessibility standards for data fiduciaries to ensure that persons with disabilities can access and understand consent mechanisms.

While the DPDPA is a step forward in recognizing the rights of persons with disabilities, significant gaps remain. Addressing the outlined issues is crucial for crafting a fair and inclusive data protection framework that truly empowers individuals with disabilities in the digital age.

This policy brief advocates for legislative amendments that would reflect these recommendations, aiming for a robust representation of persons with disabilities in data protection laws.

Persons with Disabilities vis-à-vis the Digital Personal Data Protection Act, 2023

Ref: https://ccgdelhi.s3.ap-south-1.amazonaws.com/uploads/persons-with-disabilities-vis-a-vis-the-digital-personal-data-protection-act-2023-709.pdf

Guidelines for the Development of e-Content for Children with Disabilities

Ref: https://dsel.education.gov.in/sites/default/files/2021-06/CWSN_E-Content_guidelines.pdf

The National Commission for Protection of Child Rights (NCPCR)  circular or guidelines that prohibit the disclosure of the identity of children with special needs on social media platforms are primarily aimed at safeguarding their privacy and preventing potential exploitation or discrimination. 

These guidelines, issued by the NCPCR, an Indian statutory body established under the Commission for Protection of Child Rights (CPCR) Act, 2005, are part of a broader effort to protect vulnerable children in the digital age.

The specific circular in question, often referred to in discussions about child protection online, emphasizes the need to prevent the public identification of children with special needs to shield them from stigma, bullying, and misuse of their personal information. This aligns with international best practices for child protection, which advocate for heightened privacy for minors, especially those with vulnerabilities.The intent is not to infantilize but to provide a layer of protection against potential harm that can arise from public disclosure of sensitive personal data, particularly in the context of social media where information can spread rapidly and uncontrollably.

However, the concern about “infantilization” often arises when protective measures are perceived to limit autonomy or agency. In the context of disability rights, there is a strong movement towards promoting self-determination and independent living. Critics might argue that blanket prohibitions on identity disclosure, even with good intentions, could inadvertently restrict the ability of individuals (or their guardians, in the case of minors) to advocate for themselves, share their experiences, or participate in disability rights movements online. The balance between protection and empowerment is a delicate one. India’s Rights of Persons with Disabilities Act, 2016 (RPwD Act), emphasizes non-discrimination and full and effective participation and inclusion in society for persons with disabilities. While the NCPCR guidelines focus on children, the broader philosophical question of how data protection intersects with the rights of persons with disabilities to express themselves and be visible is pertinent.

The Digital Personal Data Protection Act, 2023 (DPDP Act), which came into force in India, provides a comprehensive framework for data protection, including provisions for sensitive personal data and the data of children. The DPDP Act defines “child” as an individual who has not completed eighteen years of age and mandates parental consent for processing a child’s personal data. It also prohibits certain types of processing that could harm a child. While the DPDP Act does not specifically address “children with special needs” as a distinct category for additional protection beyond the general provisions for children, its overarching principles of data minimization, purpose limitation, and consent are relevant. The NCPCR guidelines can be seen as a specific application of these broader data protection principles to a particularly vulnerable group of children. The challenge lies in ensuring that such protective measures do not inadvertently create barriers to inclusion or perpetuate stereotypes that individuals with disabilities are inherently incapable of making decisions or managing their own information. The debate often centers on whether such rules are truly empowering or if they reinforce a paternalistic approach, even if well-intentioned.

The specific circular or guidelines from the NCPCR that prohibit the disclosure of the identity of children with special needs on social media platforms are not publicly available as a single, consolidated PDF document that is easily citable as a standalone regulation. Instead, these guidelines are often communicated through advisories, press releases, or integrated into broader child protection policies and discussions. The NCPCR frequently issues advisories and recommendations to various stakeholders, including state governments, law enforcement agencies, and educational institutions, regarding child protection issues. For instance, the NCPCR has consistently emphasized the need to protect children’s privacy online and has issued various advisories related to cyber safety and the responsible use of social media for children, including those with special needs. While a direct, universally accessible PDF titled “NCPCR Circular on Prohibition of Disclosure of Identity of Children with Special Needs on Social Media” might not be readily available as a single document, the underlying principle is consistently advocated by the NCPCR in its various communications and reports concerning child protection and online safety. These principles are also reflected in the broader legal framework of the DPDP Act, 2023, and the Juvenile Justice (Care and Protection of Children) Act, 2015, which also contains provisions for the protection of children’s identity in certain circumstances.

The National Commission for Protection of Child Rights (NCPCR), chaired by Priyank Kanoongo, held a meeting with social media platforms to address child safety issues pic.twitter.com/BeFo5cwI3y

— IANS (@ians_india) September 22, 2024

National Commission for the Protection of Child Rights Guidelines on Social Media Platforms

The new rules have been issued by the National Commission for Protection of Child Rights, to protect the rights of children working on OTT platforms.

More about the rules:

• The “Guidelines to Regulate Child Participation in the Entertainment Industry” were issued by NCPCR in 2011. 
• The recent draft increases the scope of the guidelines to cover social media and OTT platforms for the first time.
• The scope of the new guidelines will cover:
  • TV programmes 
  • Reality shows, 
  • Serials, 
  • News and informative media, 
  • Movies, 
  • Content on OTT platforms, 
  • Content on social media, 
  • Performing arts, 
  • Advertising
  • And any other kind of involvement of children in commercial entertainment activities. 
• Child protection:
  • Health:
    • A minor, especially below the age of six years, shall not be exposed to harmful lighting, irritating or contaminated cosmetics. 
    • Children cannot be shown imbibing alcohol, smoking or using any other substance or shown to be indulging in any sort of antisocial activity and delinquent behaviour.
    • No child can be engaged in any situation involving nudity.
  • Mental Health:
    • Consideration has to be given to the child’s age, maturity, emotional or psychological development and sensitivity.
    • A child cannot be exposed to ridicule, insult or discouragement, harsh comments or any behaviour that could affect his/her emotional health.
• Producer’s responsibility:
  • The producer will now need to obtain the permission of the District Magistrate for the participation of a child in his/her show. 
  • Producers will also have to run a disclaimer saying measures were taken to ensure there has been no abuse, neglect or exploitation of children during the entire process of the shooting.
  • The producer also needs to ensure the child’s education under the RTE Act.
• Role of guardian:
  • At least one parent or legal guardian or a known person has to be present during a shoot.
  • For infants, a registered nurse needs to be present along with the parent or legal guardian.
  • At least 20 per cent of the income earned by the child from the production or event shall be directly deposited in a fixed deposit account in a nationalised bank in the name of the child which may be credited to the child on attaining majority.
  • Content created by the child or his family/guardian:
    • It shall be treated as children working in a family enterprise as provided under the Child Labour and Adolescent Labour Act, 1986.
• Penalty:
  • The draft also included stringent penal provisions for violating the guidelines, including imprisonment.

Significance:

• Need of the guidelines:
  • Children are now being used in videos across social media and in the content on OTT platforms. 
  • It had not been covered by the existing guidelines and this increasing influence and scope of the internet needed to be covered. 
  • Parents, who are using children to make money, have to be held accountable. 
• Recognition of other Acts:
  • There are different Acts protecting children.
    • Eg., Juvenile Justice Act, 2015, Child Labour Amendment Act, 2016, Protection of Children from Sexual Offences Act, 2012, Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, etc.,
    • The provisions of these Acts have now been included in the guidelines.
• Risk of exploitation:
  • In the absence of any monitoring mechanism, the children in the industry are at grave risk of exploitation because they lack the legal right to the earnings they generate, safe working conditions and adequate protections via labour laws, etc. 
• Need of protection:
  • Participating in an adult-oriented industry, children are often exposed to unsuitable, anxiety-inducing, and at times, dangerous operational hazards and situations.
  • Children are also susceptible to a plethora of other crimes against children such as sexual exploitation, child trafficking, bonded labour, etc

Ensuring Protection of Children in India

• Education:

◦ Article 21 A (Right to Education): The State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State, by law, may determine.

• Child Rights:

◦ National Commission for Protection of Child Rights (NCPCR):

▪ It was set up in March 2007 under the Commissions for Protection of Child Rights (CPCR) Act, 2005, an Act of Parliament (December 2005). 

▪ It comes under the administrative control of the Ministry of Women & Child Development.

▪ The Commission’s Mandate is to ensure that all Laws, Policies, Programmes, and Administrative Mechanisms are in consonance with the Child Rights perspective as enshrined in the Constitution of India and also the UN Convention on the Rights of the Child. 

▪ The Child is defined as a person in the 0 to 18 years age group.

• Child Labour:

◦ Article 23: Any type of forced labour is prohibited. 

◦ Article 24: It states that a child under 14 years cannot be employed to perform any hazardous work in any factory or mine.

◦ The Child and Adolescent Labour (Prohibition and Regulation) Act (CALPRA):

▪ CALPRA states that no child shall be allowed to work for more than five hours in a day, and for not more than three hours without rest.

◦ Platform for Effective Enforcement for No Child Labour (PENCIL):

▪ It is an electronic platform that aims at involving the Centre, State, District, Governments, civil society and the general public in achieving the target of a child labour-free society.

• Sexual offence against Children:

◦ Article 39: It states that “the health and strength of workers, men and women, and the tender age of children are not abused”.

◦ The Protection of Children from Sexual Offences Act (POCSO Act): 

▪ It was established to protect children against offences like sexual abuse, sexual harassment, and pornography.

Ref:

About NCPCR. [ https://ncpcr.gov.in/content/about-ncpcr ]

General comment No. 25 (2021) on children’s rights in relation to the digital environment. [ https://www.ohchr.org/en/documents/general-comments/general-comment-no-25-2021-childrens-rights-relation-digital ]

The Rights of Persons with Disabilities Act, 2016. [ https://disabilityaffairs.gov.in/content/upload/uploadfiles/files/RPWD%20ACT%202016.pdf ]

The Digital Personal Data Protection Act, 2023. [ https://egazette.nic.in/WriteReadData/2023/248150.pdf ]

Advisories and Guidelines. [ https://ncpcr.gov.in/content/advisories-and-guidelines =

The Juvenile Justice (Care and Protection of Children) Act, 2015. [ https://wcd.nic.in/sites/default/files/JJ%20Act%202015.pdf ]

Ref: https://www.nextias.com/ca/current-affairs/25-06-2022/national-commission-for-the-protection-of-child-rights-guidelines-on-ott-platform

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