Introduction: Can EU controllers trust Indian vendors under DPDP?
As international players in domestic markets facilitate a global flow of data, business and data controllers especially EU based are relying more on more on Indian vendors for processing personal data. However, India’s new Digital Personal Data Protection Act being introduced, questions arise on how does the DPDP fare against the GDPR? What are their differences and whether EU controllers can continue outsourcing to Indian vendors in this changed scenario?
This article offers an informative DPDP vs GDPR comparison with the aim of assisting legal teams and compliance experts. It helps them understand how to manage cross border processing of data. The goal is to make complex rules easier to follow when working with vendors in different countries. We analyse the similarities and differences and offer helpful tips in managing cross border transfer of data and processing compliance.
Brief understanding of GDPR and DPDP
The General Data Protection Regulation came into effect in 2018. It is universally acknowledged as the top standard for protecting personal data. It aims at giving people full control over their data. It also makes companies responsible for how they utilise user data. GDPR applies even outside the EU in some cases. On the other hand, India’s Digital Personal Data Protection Act was introduced in 2023. DPDP tries to protect privacy while also helping the country grow its digital economy.
While both laws aim to protect personal data, they differ in scope:
- GDPR covers all forms of personal data. This includes non-digital formats as well.
- DPDP deals with digital personal data or digitized offline data exclsuively.
This difference is very important for EU controllers outsourcing to India. This distinction impacts the applicability of compliance obligations and enforcement mechanisms.
Key Terminology: Controllers vs Fiduciaries
Understanding the terminology is essential for mapping obligations:
| GDPR Term | DPDP Equivalent |
| Data Controller | Data Fiduciary |
| Data Processor | Data Processor |
| Data Subject | Data Principal |
Although the titles differ, the functional roles are largely aligned. A data fiduciary under DPDP determines the purpose and means of processing, just like a controller under GDPR.
Compliance Obligations: Mapping the Requirements
- Consent and Lawful Basis
- GDPR requires specific, informed, and freely given consent, with multiple lawful bases for processing.
- DPDP also mandates clear consent but limits lawful bases primarily to consent and certain legitimate uses.
EU controllers must ensure Indian vendors obtain consent in a manner that satisfies GDPR standards, especially when relying on consent as the legal basis.
- Individual Rights
Both laws grant rights to individuals, but with nuanced differences:
Right GDPR DPDP Access Yes Yes Rectification Yes Yes Erasure Yes Yes Data Portability Yes Yes Objection to Processing Yes Yes but Limited
DPDP lacks a direct equivalent to GDPR’s right to object, which may impact how EU controllers manage data subject requests through Indian vendors. - Data Protection Officers
GDPR mandates DPOs for certain organizations. While DPDP requires DPOs only for Significant Data Fiduciaries, based on volume and sensitivity of data.
EU controllers should assess whether their Indian vendors qualify as significant fiduciaries and ensure DPO appointment where necessary.
Cross-Border Transfers: Bridging the Legal Divide
One of the most critical areas for EU controllers is cross-border transfers to India. Under GDPR, transfers outside the EU require:
- Adequacy decisions
- Standard Contractual Clauses
- Binding Corporate Rules
India is not currently deemed “adequate” by the European Commission. Therefore, EU controllers must rely on SCCs or equivalent safeguards when transferring data to Indian vendors.
The DPDP Act introduces its own framework for cross-border transfers India, allowing the government to whitelist countries. However, this list is not yet published, creating uncertainty for compliance.
To mitigate risk, EU controllers should:
- Include robust data processing addendum India clauses in vendor contracts
- Conduct Transfer Impact Assessments
- Monitor evolving regulatory guidance from both jurisdictions
DPDP Compliance Checklist for EU Controllers
To streamline compliance, here’s a practical DPDP compliance checklist tailored for EU controllers working with Indian vendors:
- Vendor Due Diligence
- Assess vendor’s DPDP readiness
- Verify appointment of DPO, if applicable
- Contractual Safeguards
- Use GDPR-compliant data processing addendum India
- Include cross-border transfer clauses
- Consent Mechanisms
- Ensure consent aligns with GDPR standards
- Document consent workflows
- Data Subject Rights Management
- Align DPDP rights with GDPR obligations
- Establish joint response protocols
- Security Measures
- Require vendors to implement technical and organizational safeguards
- Monitor breach notification procedures
- Cross-Border Transfer Strategy
- Use SCCs or BCRs
- Track India’s whitelist developments
Enforcement and Penalties: What’s at Stake?
GDPR imposes fines up to 20 million euros or 4% of global turnover. DPDP also introduces significant penalties, including:
- Up to ₹250 crore (27 million euros) for data breaches
- Sanctions for non-compliance with fiduciary duties
EU controllers must recognize that enforcement under DPDP is still evolving. However, reputational and legal risks remain high, especially in sectors like finance, healthcare, and e-commerce.
Harmonizing Compliance: Practical Takeaways
For EU controllers, the goal is not just legal alignment but operational harmony. Here’s how to achieve it:
- Map obligations across both laws using a comparative matrix
- Train Indian vendors on GDPR expectations
- Audit regularly to ensure ongoing compliance
- Engage legal counsel familiar with both jurisdictions
By embedding DPDP vs GDPR considerations into vendor management, EU controllers can build resilient, privacy-conscious partnerships.
FAQs
Q1: Is DPDP equivalent to GDPR for compliance purposes?
Not entirely. While DPDP shares many principles with GDPR, differences in scope, rights, and enforcement mean EU controllers must supplement DPDP compliance with GDPR-specific safeguards.
Q2: Can EU controllers transfer personal data to India under GDPR?
Yes, but only with appropriate safeguards like SCCs. India is not yet deemed adequate, so cross-border transfers India require careful legal structuring.
Q3: What terms and protections must be included in a typical data processing contract with Indian vendors?
It must clearly list the rules under GDPR and the duties under DPDP. It should explain how both sides will handle data breaches. It also needs to cover how data will be moved across borders. The roles, responsibilities and expectations must be clearly communicated in the data processing adendum. This helps avoid confusion and ensures legal safety.
Conclusion: Building Bridges, Not Barriers
India fast paced growth in the digital world makes it an important partner for EU based entities managing personal data. With the introduction of DPDP Act, a window of adjustment with the new governing law has opened up. Understanding the differences between DPDP and GDPR is crucial. Referencing the DPDP compliance checklist can be very useful. Ensuring clarity and protective clauses in the agreement governing the relationship with Indian vendors is key. These steps will ensure compliance with the law and adequate protection of user data.
As global privacy rules keep changing, planning ahead is important. Compliance with data protection laws is strategically crucial as well. Companies that prepare well can build trust and stay ahead.
This content is originally posted on: https://www.ahlawatassociates.com/blog/gdpr-vs-dpdp-eu-controllers-compliance
