Lets Build a Law that is “Compliance Friendly”

Whenever a new law is framed, there are many stakeholders whose interests get affected. A law is normally meant for the Citizen of a country but is framed by the Government in consultation with those who are close to the law making body at the time of its formation.

Since the days of ITA 2000, a practice has emerged even in India where a proposed law is placed for public comments so that views of the public can be incorporated in the legislation. However, it is a fact that once a basic draft is framed by the group of experts in a Ministry, changing any part of it is next to impossible. Except some cosmetic changes, real changes are impossible. We have seen this happen in the framing of ITA 2000 and its amendments in 2008. (See Here for details).

Once the law was framed, there were complaints that the law was insufficient, draconian, drafted without understanding the industry realities, etc. The same politicians who defended the law in 2000 opposed it in 2008 and industry ignored it until in 2011, it started pinching them under Section 79 and 43A. Even now, when we talk of ITA 2008 compliance, industry finds it difficult to accept the law as it is and complains of misuse by Police and misinterpretation by the Judiciary.

Now that a new law is being proposed for “Health Care Data Privacy”, we should endevour to avoid the same mistakes that were committed when ITA 2000 was drafted and implemented.

One of the problems which Indian law faces particularly in the type of laws such as ITA 2000/8 or Data Protection is that the impact of law is on the industry and sensible industry captains want to be compliant with the law and not be at the wrong end of the stick.

When new laws are made, they are notified on a specific day which will be the day when it is passed in the Parliament or otherwise notified for effect. For example, until 17th October 2000, there was no recognition of legal documents in India and overnight it became recognized along with digital signatures, digital contracts and cyber crimes. Though Naavi.org had been preparing the ground in the industry since around 1998, until the rules were notified no body knew there would be such a law in effect.

Similarly, on 27th October 2009, suddenly, a host of regulations related to compliance under ITA 2008 became effective overnight. Along with it all IT companies in India without exception became “Legally Non Compliant to ITA 2008” and became “Rogue Companies not following the law of the land. Of course even the Police did not understand so that no case was booked immediately anywhere but the fact was that there were some legal provisions which all of us were not compliant.

Such forced state of “Non Compliance” should not be hapen once again when this new Privacy law for the healthcare is introduced in India.

We can recall here how the HIPAA was implemented in USA in 1996. HIPAA is a law which will be reflected in the proposed Health Care Data Privacy and Security Act (HDPSA) that is our subject of discussion here and hence we need to draw lessons from the implementation of this law.

When HIPAA was introduced as well as it was amended through the HITECH Act in 2009, there was a clear time line given to the industry for compliance….like Data standards by such and such data, Privacy rule by such and such date, Security rule by such and such date, with extensions for small business, time for running out of existing contracts etc.

All this meant that though the law became effective from a certain date, the industry was given time for compliance over an extended time so that all those in the industry who always wanted to be compliant had their opportunity.

This fixing of a time line for compliance is the first important thing which we need to incorporate in the law. We need to bring in this practice for the first time when this new law HDPSA is notified.

Additionally when such acts are drafted by non-industry persons, there will be many provisions which are difficult are too complex to implement and industry may try to find loopholes to avoid them or try to save costs by implementing it wrongly.

To avoid this, industry should be proactively involved in the framing of the law. Here again when we suggest this to the Government, it will simply say that NASSCOM or FICCI is represented in the working group and therefore industry is represented. But we all know that the NASSCOM Chair person or FICCI Secretary is not the person who can go to the micro level discussions that are required to make the law “Compliance Friendly”. He has to depend on his secretariat for bringing things to his attention to be raised before the Government.

In such cases the large companies may be able to have their say but the SMEs and public will never get to be heard.

This proposed law will affect many small companies some of them are startups which have developed medical industry related Apps. It will include small Nursing homes and pharmacies as well as diagnostic centers. They need to have their say in the law.

I would like the community participation to be at a high level in the framing of this law, so that we will not have to accuse the Government of framing the laws that cannot be implemented.

We are still in the beginning of the thinking process as regards this law but we know the direction in which the Government is moving. We donot want to embarass the Government later by calling it a bad law by contributing our ideas in the beginning itself. Hence I invite the stake holders to join this online forum and contribute both in the form of detailed articles and in the form of discussions in the Whats app group.

Naavi

Related Article: Times of India

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