The Negative List Architecture
Section 16 establishes a permissive framework for cross-border transfers. Unlike GDPR which requires positive adequacy determinations or appropriate safeguards, DPDPA permits transfers unless the destination is specifically notified as restricted. This negative list approach reduces friction for legitimate international data flows while preserving government authority to restrict transfers to specific jurisdictions.
Rule 15 elaborates on the factors the Central Government may consider when restricting transfers: data protection standards of the destination country, international agreements, strategic interests, and reciprocal treatment of Indian data. Organisations must monitor government notifications for additions to the restricted list.
Critically, Data Fiduciary obligations continue post-transfer. The accountability principle extends beyond borders. Contractual arrangements with foreign recipients must ensure equivalent protection and enable Data Principal rights exercise. The transfer does not discharge the Fiduciary from responsibility for the data.
Key Provisions
Transfer Permission Framework
Transfers are permitted except to countries notified as restricted. The burden is on government to prohibit rather than on organisations to justify transfer.
Restriction Criteria
Restriction notifications may consider: destination data protection standards, international commitments, strategic interests, and reciprocal treatment of Indian data.
Continuing Accountability
Data Fiduciary obligations persist after transfer. Contracts with recipients must ensure protection standards and rights exercise mechanisms.
Processor Transfers
Transfers to foreign Data Processors must be governed by valid contracts ensuring equivalent protection and processing limitations.
Transfer Governance
Data flow mapping is prerequisite to transfer compliance. Organisations must identify all cross-border flows and destination jurisdictions.
Contractual templates for international data transfers should anticipate potential future restrictions through mechanism clauses.
Vendor due diligence for foreign processors must assess destination country data protection environment.
Notification monitoring protocols must track government announcements regarding restricted jurisdictions.
Alternative processing arrangements should be planned for data currently flowing to jurisdictions that may be restricted.
Implementation Challenges
Cloud Infrastructure Opacity
Practice Note: Cloud service providers may route data through multiple jurisdictions. Organisations must obtain clarity on data residence and transit locations to assess restriction applicability.
Group Company Transfers
Practice Note: Multinational enterprises with Indian operations face transfer governance complexities. Intra-group data sharing arrangements must be formalised with DPDPA-compliant protections.
Restriction Anticipation
Practice Note: The potential for future restrictions creates planning uncertainty. Organisations must develop contingency arrangements for processing currently conducted in jurisdictions that may be restricted.
VIBE Framework Application
Verification
Map all cross-border data flows. Audit contracts with foreign recipients for DPDPA-required protections.
Implementation
Establish transfer governance framework with approval workflows for new international flows. Deploy contractual templates with restriction contingency clauses.
Benchmarking
Track percentage of transfers with compliant contracts, vendor due diligence completion rates, and restriction monitoring compliance.
Enforcement
Implement transfer approval gates in data architecture. Establish monitoring for government restriction notifications.