Introduction
Data protection laws have become a defining aspect of modern legal and business landscapes. With the introduction of India’s Digital Personal Data Protection Act, 2023, companies operating in the country must rethink how they handle user information. While often compared to the General Data Protection Regulation (GDPR) of the European Union, the two frameworks differ in scope, enforcement mechanisms, and compliance requirements. For legal professionals advising businesses, understanding these nuances is crucial.
This article provides an in-depth comparison, identifying key differences, compliance challenges, and what Indian businesses must prepare for as the domestic regulatory framework takes shape.
1. Implementation & Enforcement Timeline
Unlike its European counterpart, India’s data protection law is not yet operational. No official effective date has been announced, but its rollout is expected in phases. The Data Protection Board of India (DPB), responsible for enforcement, is yet to be established. Until subordinate rules are framed, businesses remain in a state of uncertainty, needing to anticipate regulatory changes. In contrast, the EU regulation had a structured transition period, giving companies time to align their operations.
2. Who Falls Under the Law?
The territorial reach of both frameworks is extensive, applying not just to domestic companies but also to foreign entities handling citizens’ data. The Indian regulation governs digital personal data collected or processed within the country and also applies extraterritorially to businesses offering goods or services to Indian residents. However, offline data remains outside its scope, a key distinction from the EU’s framework, which covers both automated and structured manual processing.
Another striking difference is the treatment of government bodies. While European regulators impose strict compliance on state agencies, the Indian law provides exemptions for government entities, raising concerns about state surveillance and privacy oversight.
3. Publicly Available Data: An Exemption Unique to India
One of the most debated aspects of India’s framework is its exemption for publicly available personal data. If information has been made public by the individual or is legally required to be disclosed, companies are not bound by the same processing restrictions. European laws, however, take a more restrictive approach, ensuring that even publicly accessible data remains subject to privacy principles. This distinction could have significant implications for journalists, researchers, and businesses relying on public datasets.
4. Consent and User Rights
Consent is a cornerstone of both regulations, yet the way it is structured differs. The EU model requires consent to be freely given, specific, informed, and unambiguous, with individuals able to withdraw it anytime. India’s framework follows a similar approach but introduces “deemed consent”, allowing data to be processed without explicit approval in scenarios involving public interest, medical emergencies, or legal compliance.
When it comes to individual rights, European laws are more expansive, granting users control over their data through:
The right to object to processing (including for marketing or profiling)
The right to data portability, enabling seamless transfer between service providers
Protections against fully automated decision-making
The Indian framework introduces unique provisions, including:
A right to nominate a representative to manage data after death or incapacity
Mandatory grievance redressal mechanisms, requiring businesses to establish clear complaint resolution channels
However, the absence of a right to object or data portability means that individuals in India have fewer avenues to restrict the use of their personal data.
5. Legal Grounds for Processing Data
In the EU, companies can process personal data based on multiple justifications, including contractual necessity and legitimate interests. The Indian framework takes a narrower approach, limiting processing to consent or specific “legitimate uses”, such as employment purposes, medical emergencies, and compliance with laws.
This is a major shift for Indian businesses, as they cannot rely on contractual necessity as a standalone legal basis, a flexibility that European regulations provide.
6. Cross-Border Data Transfers: A Different Approach
Cross-border data transfers are a critical issue for businesses operating internationally. The European system mandates strict Standard Contractual Clauses (SCCs) or an adequacy decision before data can be sent outside the EU. By contrast, the Indian framework follows a whitelist approach, where transfers are permitted by default unless restricted by the government.
This approach makes international data exchange more flexible but also creates uncertainty, as businesses must wait for the government to issue a list of restricted jurisdictions.
7. Higher Compliance Obligations for “Significant” Entities
Unlike the EU framework, which applies obligations based on risk assessments, the Indian law introduces a classification system where certain companies may be designated as Significant Data Fiduciaries (SDFs). Businesses falling under this category—determined by the volume and sensitivity of data they process—will have to:
Appoint a Data Protection Officer (DPO) based in India
Conduct Data Protection Impact Assessments (DPIAs)
Undergo regular audits
This tiered approach means that smaller businesses may face lighter obligations, whereas larger or high-risk entities must comply with additional safeguards.
8. Data Breach Notification: Stricter in India?
Under European regulations, companies must notify authorities of a breach within 72 hours, but only if it poses a high risk to individuals. The Indian law, in contrast, requires all breaches to be reported, regardless of severity.
This could lead to over-reporting of minor incidents, creating administrative burdens for businesses operating in India.
9. Artificial Intelligence and Automated Decision-Making
AI-driven profiling and automated decision-making pose growing concerns in the data privacy space. The EU framework explicitly grants individuals the right to challenge automated decisions, ensuring human intervention in high-impact scenarios such as loan approvals or hiring.
The Indian law remains silent on this issue, leaving room for future amendments but also exposing a regulatory gap in AI governance.
10. Enforcement & Penalties: Which Law is Tougher?
When it comes to enforcement, the European framework is notoriously strict, imposing penalties of up to €20 million or 4% of global turnover. India’s law caps fines at ₹250 crore (~€28 million) per violation, but does not include revenue-based penalties.
Another key difference is who can take legal action. Under European law, individuals can sue businesses directly for data protection violations. In India, only the Data Protection Board has enforcement authority, meaning data subjects cannot initiate lawsuits for damages.
Conclusion
Both regulatory frameworks aim to strengthen data privacy, but their approaches differ significantly. The European model prioritizes individual rights, enforcing strict obligations on businesses, while the Indian law balances compliance with business flexibility by limiting certain user rights and allowing exemptions.
As India's regulatory landscape evolves, legal professionals must stay ahead of emerging rules and enforcement mechanisms. Businesses operating across jurisdictions will need a dual compliance strategy, ensuring they meet the more stringent European requirements while adapting to India’s unique regulatory framework.
With subordinate rules still pending, legal experts have an important role in shaping compliance strategies and anticipating how enforcement will unfold. The coming years will determine whether India’s privacy regime aligns more closely with global standards or carves out a distinct identity of its own.
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