No penalty shall be imposed under this Chapter, except after an inquiry made in such manner as may be prescribed, and the data fiduciary or data processor or any person, as the case may be, has been given a reasonable opportunity of being heard: Provided that no inquiry under this section shall be initiated except by a complaint made by the Authority.
While holding an inquiry, the Adjudicating Officer shall have the power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which, in the opinion of the Adjudicating Officer, may be useful for or relevant to the subject matter of the inquiry.
If, on the conclusion of such inquiry, the Adjudicating Officer is satisfied that the person has failed to comply with the provisions of this Act or has caused harm to any data principal as a result of any contravention of the provisions of this Act, the Adjudicating Officer may impose such penalty specified under relevant section.
While deciding whether to impose a penalty under sub-section (3) and in determining the quantum of penalty under sections 57 to 61, the Adjudicating Officer shall have due regard to the following factors, namely:—
- (a) nature, gravity and duration of violation taking into account the nature, scope and purpose of processing concerned;
- (b) number of data principals affected, and the level of harm suffered by them;
- (c) intentional or negligent character of the violation;
- (d) nature of personal data impacted by the violation;
- (e) repetitive nature of the default;
- (f) transparency and accountability measures implemented by the data fiduciary or data processor including adherence to any relevant code of practice relating to security safeguards;
- (g) action taken by the data fiduciary or data processor to mitigate the harm suffered by data principals; and
- (h) any other aggravating or mitigating factors relevant to the circumstances of the case, such as, the amount of disproportionate gain or unfair advantage, wherever quantifiable, made as a result of the default.
Any person aggrieved by an order under this section by the Adjudicating Officer may prefer an appeal to the Appellate Tribunal.
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