GDPR vs DPDPA 2023: Key Differences and Compliance Strategies

Introduction: Two Major Data Protection Laws

The General Data Protection Regulation (GDPR) and the Digital Personal Data Protection Act (DPDPA) 2023 are two of the world's most significant data protection laws. While GDPR governs data protection in the European Union, DPDPA 2023 is India's comprehensive data protection framework. Understanding their differences is crucial for businesses operating internationally.

Key Differences Between GDPR and DPDPA 2023

1. Scope and Applicability

GDPR

• Applies to EU residents' data
• Extraterritorial application (applies to non-EU businesses processing EU data)
• Covers both automated and manual processing
• Applies to all sizes of businesses

DPDPA 2023

• Applies to personal data of Indian citizens
• Applies to data processed in India
• Primarily focuses on digital personal data
• May have exemptions for small businesses (to be clarified)

2. Legal Basis for Processing

GDPR

GDPR recognizes six legal bases:

• Consent
• Contract performance
• Legal obligation
• Vital interests
• Public task
• Legitimate interests

DPDPA 2023

DPDPA recognizes fewer legal bases:

• Consent (primary basis)
• Legitimate use (limited circumstances)
• Legal obligation
• Public interest

3. Consent Requirements

GDPR

• Explicit consent required
• Granular consent options
• Easy withdrawal mechanism
• Consent must be freely given

DPDPA 2023

• Explicit, informed consent
• Granular consent (activity-level)
• Easy withdrawal mechanism
• Consent notices in 22 Schedule 8 languages
• Consent records with unique identifiers

4. Data Subject Rights

GDPR Rights

• Right to access
• Right to rectification
• Right to erasure ("right to be forgotten")
• Right to restrict processing
• Right to data portability
• Right to object
• Rights related to automated decision-making

DPDPA 2023 Rights

• Right to access
• Right to correction
• Right to erasure
• Right to grievance redressal
• Right to nominate

5. Penalties

GDPR

• Up to €20 million or 4% of global annual turnover (whichever is higher)
• Two-tier penalty structure

DPDPA 2023

• Up to ₹250 crores for data breaches
• Up to ₹200 crores for children's data violations
• Up to ₹150 crores for rights violations
• Up to ₹10 crores for other violations

6. Data Protection Officer (DPO)

GDPR

Mandatory DPO required for:

• Public authorities
• Large-scale processing
• Special category data processing

DPDPA 2023

No mandatory DPO requirement, but businesses may need to appoint a Data Protection Officer based on:

• Volume of data processed
• Sensitivity of data
• Regulatory requirements

7. Data Breach Notification

GDPR

• Notify supervisory authority within 72 hours
• Notify data subjects if high risk
• Detailed breach documentation required

DPDPA 2023

• Notify Data Protection Board
• Notify affected data subjects
• Timeline to be specified in rules

8. Cross-Border Data Transfers

GDPR

• Strict restrictions on transfers
• Adequacy decisions
• Standard Contractual Clauses (SCCs)
• Binding Corporate Rules (BCRs)

DPDPA 2023

• Allows transfers to notified countries
• May require contractual safeguards
• Specific rules to be notified

Compliance Strategies for Businesses

1. Unified Consent Management

Use a consent management platform that supports both GDPR and DPDPA requirements:

• Granular consent options
• Multi-language support
• Consent records and audit trails
• Easy withdrawal mechanisms

2. Data Mapping and Inventory

Maintain comprehensive data inventories:

• Types of data collected
• Legal basis for processing
• Data retention periods
• Third-party sharing
• Cross-border transfers

3. Privacy by Design

Implement privacy by design principles:

• Data minimization
• Purpose limitation
• Security by default
• Privacy impact assessments

4. Data Subject Rights Management

Establish processes for handling:

• Access requests
• Correction requests
• Erasure requests
• Portability requests (GDPR)
• Grievance handling (DPDPA)

5. Regular Compliance Audits

Conduct regular audits to ensure:

• Consent mechanisms are working
• Data processing is lawful
• Security measures are adequate
• Rights requests are handled properly

Key Similarities

Despite differences, both laws share common principles:

• Consent-based processing
• Data minimization
• Purpose limitation
• Security safeguards
• Data subject rights
• Accountability

Conclusion

While GDPR and DPDPA 2023 have distinct requirements, businesses can achieve compliance with both by implementing a unified privacy framework. Focus on consent management, data subject rights, and security measures that meet the highest standards of both regulations.

Consently provides a comprehensive platform that helps businesses comply with both GDPR and DPDPA 2023 requirements, ensuring seamless data protection compliance across jurisdictions.