DATA SECRECY AND TEST DATA PROTECTION LAW: A HALF BUILT ROAD IN INDIA
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Abstract
Data is information and information is the source of knowledge and knowledge is power, then it is very clear for a country to ensure protection against data misappropriation. Data protection refers to the set of laws, policies and practices which aims to minimize the intrusion in one’s privacy caused by collection, processing and dissemination of data relates to data subjects. Now the question arises why the data should be protected? In correct manner, which type of data should be protected? There are four categories i.e. personal data, sensitive personal data, confidential business information and test data. As of now, there is no express legislation to protect data from theft or misappropriation in India.
However, there are some provisions in different legislation to protect data up to the limited extent. Protection of confidential business information is governed by contractual relations (confidentiality agreement) between parties under Section 27 of Indian Contract Act.But there is a gap in law to provide remedies in the cases of information misappropriation where confidentiality agreement does not exist. Personal data and sensitive personal data are protected by Section 43-Aand 72-A of Information Technology Act and Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011.These rules are strict enough but enforcement mechanism is not of such credit.
Though TRIPS agreement provides in Article 39(3) for the protection of test data submitted to government or government agencies for market approvals against unfair commercial use. India being a party has not developed a concrete legal framework yet to protect test data. In the cases of infringement of intellectual property rights lies in the data, collected after the investment of valuable resources,an individual has to invoke common law remedies as provided to protect trade secrets. This situation goes against the innovative efforts in India.
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