11 Consent necessary for processing of personal data

Bare Act

Section 11(1)

The personal data shall not be processed, except on the consent given by the data principal at the commencement of its processing.

Section 11(2)

The consent of the data principal shall not be valid, unless such consent is—

(a) free, having regard to whether it complies with the standard specified under section 14 of the Indian Contract Act, 1872;

(b) informed, having regard to whether the data principal has been provided with the information required under section 7;

(c) specific, having regard to whether the data principal can determine the scope of consent in respect of the purpose of processing;

(d) clear, having regard to whether it is indicated through an affirmative action that is meaningful in a given context; and

(e) capable of being withdrawn, having regard to whether the ease of such withdrawal is comparable to the ease with which consent may be given.

Section 11(3)

In addition to the provisions contained in sub-section (2), the consent of the data principal in respect of processing of any sensitive personal data shall be explicitly obtained—

(a) after informing him the purpose of, or operation in, processing which is likely to cause significant harm to the data principal;

(b) in clear terms without recourse to inference from conduct in a context; and

(c) after giving him the choice of separately consenting to the purposes of, operations in, the use of different categories of, sensitive personal data relevant to processing.

Section 11(4)

The provision of any goods or services or the quality thereof, or the performance of any contract, or the enjoyment of any legal right or claim, shall not be made conditional on the consent to the processing of any personal data not necessary for that purpose.

Section 11(5)

The burden of proof that the consent has been given by the data principal for processing of the personal data under this section shall be on the data fiduciary.

Section 11(6)

Where the data principal withdraws his consent from the processing of any personal data without any valid reason, all legal consequences for the effects of such withdrawal shall be borne by such data principal.

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