October 2023

1. Governing Texts

On September 11, 2023, the Delaware Governor signed the Delaware Personal Data Privacy Act ('DPDPA'). The DPDPA establishes consumer rights, and various controller and processor obligations, granting the Delaware Department of Justice ('Delaware DOJ') exclusive authority to enforce its provisions. The DPDPA will enter into effect on January 1, 2025.

1.1. Key acts, regulations, directives, bills

• the DPDPA

1.2. Guidelines

The Delaware DOJ has not issued any guidelines on the DPDPA.

1.3. Case law

Not applicable.

2. Scope of Application

2.1. Personal scope

The DPDPA applies to persons that (§12D-103(a) of Title 6 of the Delaware Code):

• conduct business in Delaware or produce a product or service targeted at residents of Delaware and that:
  • control or process the personal data of not less than 35,000 consumers excluding personal data controlled or processed solely for the purpose of completing a payment transaction; or
  • control or process the personal data of not less than 10,000 consumers and derive more than 20% of their gross revenue from the sale of personal data.

However, the DPDPA does not apply to organizations including, among others (§12D-103(b) of Title 6 of the Delaware Code):

• any body of the State or a political subdivision of the State, including any board, bureau, commission, but excluding any institution of higher education;
• financial institutions or an affiliate of a financial institution subject to the Gramm-Leach Bliley Act (GLBA);
• non-profit organizations dedicated to preventing insurance crime;
• national securities associations registered pursuant to Securities Exchange Act of 1934 (15 U.S.C. § 78a, et seq., as amended); or
• registered futures associations designated pursuant §17 of the Commodity Exchange Act (7 U.S.C. § 1, et seq., as amended).

2.2. Territorial scope

The DPDPA applies to persons that conduct business in Delaware or produce a product or service targeted at residents of Delaware. (§12D-103(a) of Title 6 of the Delaware Code).

2.3. Material scope

The DPDPA applies to the control or processing of personal data (Title 6 of the Delaware Code §12D-103(a)). Personal data is defined as any information that is linked or reasonably linkable to an identified or identifiable individual and does not include de-identified data or publicly available information (§12D-102(21) of Title 6 of the Delaware Code).

Information exempt from the DPDPA includes, among others role (§12D-103(c) of Title 6 of the Delaware Code):

• protected health information under the Health Insurance Portability and Accountability Act ('HIPAA');
• health records;
• identifiable private information;
• personal data regulated by the Family Educational Rights and Privacy Act;
• personal data collected, processed, sold, or disclosed in compliance with the Farm Credit Act, 12 U.S.C. § 2001, et seq., as amended; or
• data processed or maintained in the course of an individual applying to, employed by, or acting as an agent or independent contractor of a controller, processor, or third party, to the extent that the data is collected and used within the context of that role.

Notably, the DPDPA does not apply to the processing of personal data by a person in the course of a purely personal or household activity (§12D-110(e)(2) of Title 6 of the Delaware Code)

3. Data Protection Authority | Regulatory Authority 

3.1. Main regulator for data protection

The Delaware DOJ is the regulator of the DPDPA.

3.2. Main powers, duties and responsibilities

The Delaware DOJ has exclusive authority to enforce the DPDPA and may investigate and prosecute violations of the DPDPA (§12D-111(a) of Title 6 of the Delaware Code). Beginning at least six months prior entry into effect of the DPDPA, the Delaware DOJ will engage in public outreach to educate consumers and the business community about the same.

The Attorney General ('AG') may require a controller to disclose any Data Protection Impact Assessment ('DPIA') that is relevant to an investigation conducted by the AG. The AG may evaluate the DPIA for compliance with the requirements under the DPDPA (Title 6 of the Delaware Code §12D-108(c)).

4. Key Definitions

Data controller: An individual or other person that, alone or jointly with others, determines the purpose and means of processing personal data (§12D-102(9) of Title 6 of the Delaware Code).

Data processor: a person that processes personal data on behalf of a controller ((§12D-102(24) of Title 6 of the Delaware Code).

Personal data: information that is linked or reasonably linkable to an identified or identifiable individual. The term does not include de-identified data or publicly available information (§12D-102(21) of Title 6 of the Delaware Code).

Sensitive data: sensitive data is defined as including (§12D-102(30) of Title 6 of the Delaware Code):

• data revealing racial or ethnic origin, religious beliefs, mental or physical health condition or diagnosis (including pregnancy), sex life, sexual orientation, status as transgender or nonbinary, citizenship status, or immigration status;
• genetic or biometric data;
• personal data collected from a known child; or
• precise geolocation data.

Health data: the DPDPA does not expressly define 'health data' but instead refers to 'protected health information' as defined under HIPAA (§12D-102(26) of Title 6 of the Delaware Code).

Biometric data: Means data generated by automatic measurements of an individual's biological characteristics. The term includes a fingerprint, voiceprint, eye retina or iris, or another unique biological pattern or characteristic that is used to identify a specific individual. The term does not include a physical or digital photograph or data generated from a physical or digital photograph, a video or audio recording, or data generated from a video or audio recording unless such data is generated to identify a specific individual. (§12D-102(3) of Title 6 of the Delaware Code).

Pseudonymization: 'pseudonymous data' means personal data that cannot be attributed to a specific individual without the use of additional information, provided that the additional information is kept separately and is subject to appropriate technical and organizational measures to ensure that the personal data is not attributed to an identified or identifiable individual (§12D-102(27) of Title 6 of the Delaware Code).

5. Legal Bases

Personal data processed by a controller may be processed to the extent that the processing is (§12D-110(f) of Title 6 of the Delaware Code):

• reasonably necessary and proportionate to the purposes listed in the DPDPA; and
• adequate, relevant, and limited to what is necessary to specific purposes in the DPDPA.

In addition, personal data collected, used, or retained under the DPDPA must, where applicable, take into account the nature and purpose of such collection, use, or retention. Moreover, the personal data is subject to reasonable administrative, technical, and physical measures to protect the confidentiality, integrity, and accessibility of the personal data and to reduce reasonably foreseeable risks of harm to consumers relating to the collection, use, or retention of personal data. (§12D-110(f) of Title 6 of the Delaware Code).

5.1. Consent

'Consent' under the DPDPA is defined as a clear affirmative act signifying a consumer's freely given, specific, informed, and unambiguous agreement to process personal data relating to the consumer. The term includes a written statement, including a statement written by electronic means, or any other unambiguous affirmative action.  The term 'consent' does not include (§12D-102(7) of Title 6 of the Delaware Code):

• acceptance of a general or broad terms of use or similar document that contains descriptions of personal data processing along with other, unrelated information;
• hovering over, muting, pausing, or closing a given piece of content; or
• agreement obtained through the use of dark patterns.

In addition, controllers must provide an effective mechanism for a consumer to revoke the consumer's consent that is at least as easy as the mechanism by which the consumer provided their consent and, upon revocation of such consent, cease to process the data as soon as practicable, but not later than 15 days after the receipt of such request (§12D-106(a)(6) of Title 6 of the Delaware Code).

5.2. Contract with the data subject

The DPDPA does not expressly provide that personal data can be processed for the performance of a contract with a data subject.

However, the DPDPA outlines that nothing restricts the ability of a controller or processor to (§12D-110(a) (5)-(7) of Title 6 of the Delaware Code):

• provide a product or service specifically requested by a consumer;
• perform a contract to which the consumer is a party including fulfilling the terms of a written warranty; or
• take steps at the request of a consumer prior to entering into a contract.

5.3. Legal obligations

The DPDPA does not expressly provide that personal data can be processed based on legal obligations.

However, the DPDPA provides that its requirements do not restrict a controller or processor's ability to among others (§12D-110(a) (1)-(4) of Title 6 of the Delaware Code):

• comply with federal, state, or local laws, rules, or regulations;
• comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, state, local, or other governmental authorities; or
• investigate, establish, exercise, prepare for, or defend legal claims.

5.4. Interests of the data subject

The DPDPA does not expressly provide that personal data can be processed based on the interests of the data subject.

However, the DPDPA states that nothing within shall be construed to impose a requirement on controllers and processors that adversely affects the rights and freedoms of any person, including the freedom of speech (§12D-110(e)(1) of Title 6 of the Delaware Code).

In addition, the DPDPA requirements do not restrict a controller or processor's ability to take immediate steps to protect an interest that is essential for the life or physical safety of the consumer or of another individual and in which the processing cannot be manifestly based on another legal basis (§12D-110(a)(8) of Title 6 of the Delaware Code).

5.5. Public interest

The DPDPA provides that its requirements do not restrict a controller or processor's ability to engage in public or peer-reviewed scientific research in the public interest that adheres to all other applicable ethics and privacy laws and is approved, monitored, and governed by an institutional review board that determines (§12D-110(a)(10) of Title 6 of the Delaware Code):

• if the deletion of the information is likely to provide substantial benefits that do not exclusively accrue to the controller;
• whether the expected benefits of the research outweigh the privacy risks; and
• if the controller has implemented reasonable safeguards to mitigate privacy risks associated with research, including any risks associated with identification. 

5.6. Legitimate interests of the data controller

The DPDPA does not expressly provide that personal data can be processed based on the legitimate interest of the data controller.

However, the DPDPA provides that its requirements do not restrict a controller or processor's ability to (§12D-110(a)(9) of Title 6 of the Delaware Code):

• prevent, detect, protect against, or respond to security incidents, identity theft, fraud, harassment, malicious or deceptive activities, or any illegal activity; or
• preserve the integrity or security of systems or investigate, report, or prosecute those responsible for illegal activity.

In addition, the DPDPA provides that the requirements imposed on controllers and processors under the DPDPA must not restrict their ability to collect, use, or retain data to (§12D-110(b) of Title 6 of the Delaware Code):

• conduct internal research to develop, improve, or repair products, services, or technology;
• effect a product recall;
• identify and repair technical errors that impair existing or intended functionality; or
• perform internal operations that:
  • are reasonably aligned with the expectations of the consumer;
  • are reasonably anticipated based on the consumer's existing relationship with the controller; or
  • are otherwise compatible with processing data in furtherance of the provision of a product or service specifically requested by a consumer or the performance of a contract to which the consumer is a party. 

5.7. Legal bases in other instances

Data controllers or processors are not required to comply with the provisions of the DPDPA if doing so would violate evidentiary privilege (§12D-110(c) of Title 6 of the Delaware Code).

In addition, the DPDPA provides that that nothing under its requirements shall be construed to prevent a controller or processor from providing personal data concerning a consumer to a person covered by an evidentiary privilege under the laws of Delaware as part of a privileged communication (§12D-110(c) of Title 6 of the Delaware Code).

6. Principles

The DPDPA provides the following principles for the processing of personal data:

Data minimization: controllers must limit the collection of personal data to what is adequate, relevant, and reasonably necessary in relation to the purposes for which that personal data is processed, as disclosed to the consumer (§12D-106(a)(1) of Title 6 of the Delaware Code).

Purpose limitation: controllers must not process personal data for a purpose that is neither reasonably necessary to nor compatible with the disclosed purpose for which the personal data is processed, as disclosed to the consumer, unless the controller obtains the consumer's consent (§12D-106(a)(2) of Title 6 of the Delaware Code).

Confidentiality and Integrity: controllers must, for the purposes of confidentiality, integrity, and accessibility, establish, implement, and maintain reasonable administrative, technical, and physical data security that is appropriate to the volume and nature of personal data (§12D-106(a)(3) of Title 6 of the Delaware Code).

7. Controller and Processor Obligations

De-identified data and pseudonymous data

Controllers in possession of deidentified data must (§12D-102(14) of Title 6 of the Delaware Code):

• take reasonable measures to ensure that the data cannot be associated with an individual;
• publicly commit to processing deidentified data without attempting to reidentify the data; and
• contractually obligate any recipient of the deidentified data to comply with the provisions of the DPDPA.

However, the DPDPA clarifies that it does not require a controller or processor to (§12D-109(a) of Title 6 of the Delaware Code):

• re-identify de-identified or pseudonymous data;
• maintain data in an identifiable form, or collect, obtain, retain, or access data or technology, for the purpose of allowing consumers or processors to associate consumer requests with personal data; or
• comply with an authenticated consumer rights request, if it:
  • is not reasonably capable of associating the request with the personal data or it would be unreasonably burdensome for the controller to associate the request with the personal data;
  • does not use the personal data to recognize or respond to the specific consumer who is the subject of the personal data or associates the personal data with other personal data about the same specific consumer; and
  • does not sell the personal data to any third party or otherwise voluntarily disclose the personal data to any third party other than a processor, except as otherwise permitted by the DPDPA.

Controllers that disclose pseudonymous data or deidentified data must exercise reasonable oversight to monitor compliance with any contractual commitments to which the pseudonymous data or deidentified data is subject and shall take appropriate steps to address any breach of the contractual requirements. The determination of the reasonableness of such oversight and the appropriateness of contractual enforcement must take into account whether the disclosed data includes data that would be sensitive data if it were re-identified (§12D-109(d) of Title 6 of the Delaware Code).

7.1. Data processing notification

The DPDPA does not specifically provide for data processing notification requirements.

7.2. Data transfers

The DPDPA does not specifically address cross-border data transfers.

Nonetheless 'sale of personal data' is defined as 'the exchange of personal data for monetary or other valuable consideration by the controller to a third party' (§12D-102(29) of Title 6 of the Delaware Code). However, the term does not include (§12D-102(29) of Title 6 of the Delaware Code):

• the disclosure of personal data to a processor that processes the personal data on the controller's behalf where limited to the purpose of such processing;
• the disclosure of personal data to a third party for purposes of providing a product or service requested by the consumer;
• the disclosure or transfer of personal data to an affiliate of the controller;
• the disclosure or transfer of personal data to a third party as an asset that is part of a merger acquisition. bankruptcy, or other similar transaction; or
• the disclosure of information that the consumer:
  • directs the controller to disclose the personal data or intentionally uses the controller to interact with a third party; or
  • intentionally made available to the general public through a mass media channel and did not restrict to a specific audience.

A controller or processor that discloses personal data to a processor or third-party controller in compliance with the DPDPA will not be deemed to have violated the same if the processor or third-party controller that receives and processes such personal data violates the DPDPA, provided that (§12D-1010(d) of Title 6 of the Delaware Code):

• at the time the disclosing controller or processor disclosed such personal data, the disclosing controller or processor did not have actual knowledge that the receiving processor or third-party controller had violated or would violate the DPDPA; and
• the disclosing controller or processor was, and remained, in compliance with its obligations as the discloser of such data hereunder.

A third-party controller or processor receiving personal data from a controller or processor in compliance with the DPDPA is likewise not in violation of the same for the independent misconduct of the controller or processor from which such third-party controller or processor receives such personal data (§12D-1010(d) of Title 6 of the Delaware Code).

7.3. Data processing records

The DPDPA does not explicitly provide for data processing records.

7.4. Data protection impact assessment

Under the DPDPA controllers that process the data of at least 100,000 consumers, must conduct a Data Protection Assessments ('DPA') for activities involving personal data that present a heightened risk of harm to consumers, including where (§12D-108(a) of Title 6 of the Delaware Code):

• the processing is for targeted advertising;
• the processing involves the sale of personal data;
• the processing is for the purpose of profiling, and the profiling presents reasonably foreseeable risks of:
  • unfair or deceptive treatment of or unlawful disparate on consumers;
  • financial, physical, or reputational injury to consumers;
  • a physical or other intrusion on the solitude or seclusion, or the private affairs or concerns, of consumers, if the intrusion would be offensive to a reasonable person; or
  • other substantial injury to consumers; and
• the processing involves sensitive data.

Importantly, the above requirement will excludes data controlled or processed solely for the purpose of completing a payment transaction (§12D-108(a) of Title 6 of the Delaware Code).

DPAs must aim to identify and weigh the direct or indirect benefits that may flow from the processing to the controller, the consumer, other stakeholders, and the public, against the potential risks to the rights of the consumer associated with that processing, as mitigated by safeguards that can be employed by the controller to reduce the risks. DPAs must factor in (§12D-108(b) of Title 6 of the Delaware Code):

• the use of deidentified data;
• the reasonable expectations of consumers;
• the context of the processing; and
• the relationship between the controller and the consumer whose personal data will be processed.

Notably, a single DPA may address a comparable set of processing operations that include similar activities (§12D-108(d) of Title 6 of the Delaware Code). Likewise, DPAs conducted by a controller for the purpose of compliance with other laws or regulations may constitute compliance with the requirements of the DPDPA if the assessment has a reasonably similar scope and effect (§12D-108(b) of Title 6 of the Delaware Code)

DPAs must also be made available to the AG pursuant to a civil investigative demand (§12D-108(c) of Title 6 of the Delaware Code).

Importantly, DPA requirements will apply to processing activities created or generated on or after six months following the effective date of the DPDPA and are not retroactive (§12D-108(F) of Title 6 of the Delaware Code).

7.5. Data protection officer appointment

The DPDPA does not expressly address data protection officer appointments.

7.6. Data breach notification

The DPDPA does not provide for breach notification requirements. However, under §12B-101 et seq. of Title 6 of the Delaware Code, data breaches must be notified to the AG.

Further, processors must adhere to the instructions of a controller and assist the controller in meeting their duties or requirements under the DPDPA, including by complying with the security of processing personal data and the notification of a breach of security of the processor's system (§12D-107(a)(2) of Title 6 of the Delaware Code).

7.7. Data retention

The DPDPA does not expressly address data retention.

7.8. Children's data

The DPDPA does not explicitly define a 'child' but defers to the Children's Online Privacy Protection Act of 1998C ('COPPA') which defines a child as an individual younger than 13 years of age (§12D-102(5) of Title 6 of the Delaware Code).

Controllers or processors that comply with the verifiable parental consent requirements of the COPPA with respect to personal data will be considered to be in compliance with any requirement to obtain parental consent under the DPDPA (§12D-103(d) of Title 6 of the Delaware Code). In addition, controllers must not process the personal data of a consumer for purposes of targeted advertising, or sell the consumer's personal data without their consent, under circumstances where a controller has actual knowledge or willfully disregards that the consumer is at least 13 years of age but younger than 18 years of age (§12D-106(a)(7) of Title 6 of the Delaware Code).

Please note that personal data collected from a known child is considered a category of 'sensitive data'. Therefore, personal data collected from an individual the controller knows is under 13 years old must be processed in accordance with such requirements (§12D-102(30)(c) of Title 6 of the Delaware Code).

7.9. Special categories of personal data

Controllers may not, under the DPDPA process the sensitive data of a consumer without obtaining the consumer's consent, or, in the case of processing the sensitive data of a known child, without processing that data in accordance with §1204C of Chapter 12C of the Delaware Code (§12D-106(a)(4) of Title 6 of the Delaware Code).

7.10. Controller and processor contracts

A contract must govern controller and processor procedures with respect to processing performed on behalf of the controller and include instructions with (§12D-107(b) of Title 6 of the Delaware Code):

• clear instructions for processing data;
• the nature and purpose of the processing;
• the type of data subject to processing;
• the duration of the processing;
• the rights and obligations of both parties; and
• requirement processors to:
  • ensure each person processing personal data is subject to a duty of confidentiality;
  • at the controller's direction, delete or return all personal data to the controller as requested after the provision of the service is complete unless retention is required by law;
  • make available to the controller, on reasonable request, all information in the processor's possession necessary to demonstrate the processor's compliance under the DPDPA;
  • allow, and cooperate with, reasonable assessments by the controller or the controller's designated assessor, or the processor may arrange for a qualified and independent assessor to conduct an assessment of the processor's policies and technical and organizational measures in support of the obligations, using an appropriate and accepted control standard or framework and assessment procedure for such assessments. The processor shall provide a report of such assessment to the controller upon request; and
  • after providing the controller an opportunity to object, engage any subcontractor pursuant to a written contract that requires the subcontractor to meet the obligations of the processor with respect to the personal data.

In addition, processors must adhere to the instructions of a controller and assist the controller in meeting their duties or requirements under the DPDPA, including (§12D-107(a) of Title 6 of the Delaware Code):

• responding to consumer requests by using appropriate technical and organizational measures, as reasonably practicable, taking into account the nature of processing and the information available;
• complying with the security of processing personal data and to the notification of a breach of security of the processor's system, taking into account the nature of processing and the information available; and
• providing necessary information to enable the controller to conduct and document DPAs.

A determination of whether a person is acting as a controller or processor with respect to the specific processing of personal data is a fact-based determination that depends on the context in which personal data is to be processed. A processor that continues to adhere to a controller's instructions with respect to a specific processing activity remains a processor (§12D-107(d) of Title 6 of the Delaware Code).

Furthermore, nothing should be construed to relieve a controller or processor from the liabilities imposed on the controller or processor by virtue of such controller or processor's role in the processing relationship (§12D-107(c) of Title 6 of the Delaware Code).

8. Data Subject Rights

Consumers under the DPDPA are entitled to exercise their consumer rights through a secure and reliable means established by the controller and described to the consumer in the controller's privacy notice. Regarding the processing of personal data belonging to a known child, a parent or legal guardian may exercise their consumer rights on behalf of the child. In addition, in the case of processing personal data concerning a consumer subject to a guardianship, conservatorship, or other protective arrangement, the guardian or the conservator of the consumer may exercise such rights on the consumer's behalf (§12D-104(b) of Title 6 of the Delaware Code).

Data controllers must comply with consumer requests without undue delay, which may not be later than 45 days after receipt of the request. The response period may be extended by an additional 45 days where reasonably necessary, taking into account the complexity and number of the consumer's request, so long as the controller informs the consumer of the extension within the initial 45-day response period, together with the reason for the extension (§12D-104(c)(1) of Title 6 of the Delaware Code).

Further, if a controller declines to take action regarding a consumer's request, the controller must inform the consumer without undue delay, which may not be later than 45 days after the receipt of the request, of the justification for declining to take action and instructions on how to appeal the decision (§12D-104(c)(2) of Title 6 of the Delaware Code).

Controllers must not discriminate against a consumer for exercising any of the consumer rights contained in this chapter, including denying goods or services, charging different prices or rates for goods or services, or providing a different level of quality of goods or services to the consumer (§12D-106(a)(8) of Title 6 of the Delaware Code). This shall not be construed to require a controller to provide a product or service that requires the personal data of a consumer which the controller does not collect or maintain, or prohibit a controller from offering a different price, rate, level, quality, or selection of goods or services to a consumer, including offering goods or services for no fee, if the offering is in connection with a consumer’s voluntary participation in a bona fide loyalty, rewards, premium features, discounts, or club card program (§12D-106(b) of Title 6 of the Delaware Code). 

Fees

Data controllers must also provide information in response to a consumer request free of charge, at least once annually per consumer. Where consumer requests are manifestly unfounded, excessive, or repetitive, the controller may charge the consumer a reasonable fee to cover the administrative costs of complying with the request or decline to act on the request. Importantly, the controller bears the burden of demonstrating for purposes of this subsection that a request is manifestly unfounded, excessive, or repetitive (§12D-104(c)(3) of Title 6 of the Delaware Code).

Authentication

If a controller is unable to authenticate the request using commercially reasonable efforts, the controller is not required to comply with a consumer request and may request the consumer provide additional information reasonably necessary to authenticate the consumer and their request (§12D-104(c)(4) of Title 6 of the Delaware Code).

Notably, when exercising consumer rights, consumers must not be required to create a new account but may require consumers or the agent to use an existing account (§12D-104(e)(1) of Title 6 of the Delaware Code).

Appeals

In addition, the DPDPA provides that controllers must establish a process for consumers to appeal the controller's refusal to take action on a request within a reasonable period of time after the consumer's receipt of the decision. Specifically, the appeal process established must be conspicuously available and similar to the process for initiating action to exercise consumer rights. Likewise, controllers must inform consumers, in writing, of any action taken or not taken in response to an appeal no later than 60 days after receiving the appeal, including a written explanation of the reasons for the decision. Finally, where controllers deny an appeal, they must provide the consumer with the online mechanism by which the consumer may contact the Delaware DOJ to submit a complaint. (§12D-104(d) of Title 6 of the Delaware Code).

Exceptions

Controller and processors will not be required to re-identify de-identified data or pseudonymous data, or to maintain data in identifiable form, or collect, obtain, retain, or access any data or technology, in order to be capable of associating an authenticated consumer request with personal data (§12D-109(a) of Title 6 of the Delaware Code).

Nothing in the DPDPA should be construed to require a controller or processor to comply with an authenticated consumer rights request if the controller (§12D-109(b) of Title 6 of the Delaware Code):

• is not reasonably capable of associating the request with the personal data or it would be unreasonably burdensome for the controller to associate the request with the personal data;
• does not use the personal data to recognize or respond to the specific consumer who is the subject of the personal data, or associate the personal data with other personal data about the same specific consumer; and
• does not sell the personal data to any third party or otherwise voluntarily disclose the personal data to any third party other than a processor, except as otherwise permitted in the DPDPA.

It should be noted that consumer rights under the DPDPA and controller obligations do not apply to pseudonymous data in cases in which the controller is able to demonstrate any information necessary to identify the consumer is kept separately and is subject to effective technical and organizational controls that prevent the controller from accessing the information controller (§12D-109(c) of Title 6 of the Delaware Code).

8.1. Right to be informed

Data controllers must provide consumers with a reasonably accessible, clear, and meaningful privacy notice that includes all of the following (§12D-106(c) of Title 6 of the Delaware Code):

• the categories of personal data to be processed;
• the purpose of the processing;
• how consumers can exercise their data subject rights, including the appeal process;
• the categories of data shared with third parties (if any);
• the categories of third parties with whom data is shared (if any); and
• an active electronic mail address or other online mechanism that the consumer may use to contact the controller.

Notably, if controllers sell personal data to third parties or process personal data for targeted advertising, the controller must clearly and conspicuously disclose that process and the manner in which a consumer may exercise the right to opt out of that (§12D-106(d) of Title 6 of the Delaware Code).

In addition, controllers must establish and describe in their privacy notice, one or more secure and reliable methods to enable consumers to submit requests to exercise their rights. Such means must take into account (§12D-104(e)(1) of Title 6 of the Delaware Code):

• the ways in which consumers normally interact with the controller;
• the necessity for secure and reliable communications of those requests; and
• the ability of the controller to authenticate the identity of the consumer making the request.

8.2. Right to access

Consumer rights under the DPDPA include the right to confirm whether a controller is processing the consumer's personal data and access the personal data (§12D-104(a)(1) of Title 6 of the Delaware Code).

In addition, consumers are entitled to obtain a list of the categories of third parties to which the controller has disclosed the consumer’s personal data (§12D-104(a)(5) of Title 6 of the Delaware Code).

8.3. Right to rectification

Consumers under the DPDPA also have the right to correct inaccuracies in the consumer's personal data, taking into account the nature of the personal data and the purposes of processing (§12D-104(a)(2) of Title 6 of the Delaware Code).

8.4. Right to erasure

Consumers under the DPDPA also have the right to delete personal data provided by or obtained about the consumer (§12D-104(a)(3) of Title 6 of the Delaware Code).

Notably, a controller that has obtained personal data about a consumer from a source other than the consumer is considered in compliance with a consumer's deletion request by retaining a record of the deletion request and the minimum data necessary for the purpose of ensuring the personal data remains deleted from the controller's records and not using the retained data for any other purpose (§12D-104(c)(5) of Title 6 of the Delaware Code).

8.5. Right to object/opt-out

Consumers under the DPDPA have the right to opt-out of the processing of personal data for the purposes of (§12D-104(a)(6) of Title 6 of the Delaware Code):

• targeted advertising;
• the sale of personal data except where exception apply as outlined below; or
• profiling in furtherance of a decision that produces a legal or similarly significant effect concerning the consumer.

A controller is not required to authenticate an opt-out request, but a controller may deny an opt-out request if the controller believes that the request is fraudulent. However, if a controller denies an opt-out request because the controller believes the request is fraudulent, the controller must notify the person who made the request that the controller believes the request is fraudulent and therefore will not comply with it (§12D-104(c)(4) of Title 6 of the Delaware Code).

Under the DPDPA consumers may designate another person to serve as their authorized representative and act on their behalf to opt out of the processing of the consumer's personal data. Specifically, a consumer may designate an authorized agent, a platform, technology, or mechanism, including a link to a browser website, a browser setting or extension, or a global setting on an electronic device, that allows the consumer to indicate the consumer's intent to opt out of the processing. (§12D-105(a) of Title 6 of the Delaware Code). Controllers may comply with the opt-out request received if the controller is able to verify, with commercially reasonable effort, the identity of the consumer and the authorized agent's authority to act on the consumer's behalf (§12D-105(b) of Title 6 of the Delaware Code).

A controller must comply with an opt-out request received from an authorized agent where the controller is able to verify, with commercially reasonable effort, the identity of the consumer and the authorized agent's authority to act on such consumer's behalf. The Delaware DOJ may publish or reference on its website a list of agents who presumptively shall have such authority unless the controller has established a reasonable basis to conclude that the agent lacks such authority (§12D-105(b) of Title 6 of the Delaware Code).

In regard to the reliable means for consumers to submit a request to exercise their consumer rights, the DPDPA requires controllers to provide a clear and conspicuous link on the controller's internet website to an internet web page that enables a consumer, or an agent of the consumer, to opt out of the targeted advertising or sale of the consumer's personal data and, or not later than a year after the DPDPA's enactment opt-out through preference signal sent, with such consumer's consent, by a platform, technology or mechanism to the controller indicating such consumer's intent to opt out of any such processing or sale (§12D-106(e)(1)(a)(1) and (2) of Title 6 of the Delaware Code).

A technology as described above must (§12D-106(e)(1)(2)(a)(2) of Title 6 of the Delaware Code):

• not unfairly disadvantage another controller;
• not make use of a default setting, but must require the consumer to make an affirmative, freely given, and unambiguous choice to indicate the consumer's intent to opt out of any processing of a consumer's personal data;
• be consumer-friendly and easy to use by the average consumer;
• be as consistent as possible with any other similar platform, technology, or mechanism required by any federal or state law or regulation; and
• enable the controller to reasonably determine whether the consumer is a resident of Delaware and whether the consumer has made a legitimate request to opt out of any sale of such consumer’s personal data or targeted advertising.

However, the above provision does not enter into effect until January 1, 2026 (§12D-106(e)(1)(2) of Title 6 of the Delaware Code). Please note that act outlines further requirements associated with the use of preference signal sent.

8.6. Right to data portability

Under the DPDPA consumers have the right to obtain a copy of their personal data processed by a controller, in a portable and, to the extent technically feasible, readily usable format that allows the consumer to transmit the data to another controller without hindrance, where the processing is carried out by automated means, provided such controller shall not be required to reveal any trade secret (§12D-104(a)(4) of Title 6 of the Delaware Code).

8.7. Right not to be subject to automated decision-making

The DPDPA specifies that consumers have the right to opt-out of the processing of personal data for the purposes of profiling in furtherance of a decision that produces a legal or similarly significant effect concerning the (§12D-104(a)(6)(c) of Title 6 of the Delaware Code).

Under the DPDPA 'profiling' means any form of automated processing performed on personal data to evaluate, analyze, or predict personal aspects related to an identified or identifiable individual's economic situation, health, demographic characteristics, personal preferences, interests, reliability, behavior, location, or movements (§12D-102(25) of Title 6 of the Delaware Code).

8.8. Other rights

Not applicable.

9. Penalties

The Delaware DOJ has the authority to enforce the DPDPA and may investigate and prosecute violations of the DPDPA (§12D-111(a) of Title 6 of the Delaware Code). 

Furthermore, DPDPA provides for an enforcement grace period beginning on the entry into effect date of January 1, 2025, and ending on December 31, 2025. In this timeframe, the Delaware DOJ must, prior to initiating any action for any violation of the DPDPA, issue a notice of violation to the controller if the Delaware DOJ determines that a cure is possible. If the controller fails to cure the violation within 60 days of receipt of the notice of violation, the Delaware DOJ may initiate an enforcement action.

Beginning on January 1, 2026, at the Delaware DOJ's discretion, it may provide a controller or processor the opportunity to cure alleged violations of the DPDPA. In determining whether to grant the controller or processor an opportunity to cure such alleged violation, the Delaware DOJ may consider (§12D-111(c) of Title 6 of the Delaware Code):

• the number of violations;
• the size and complexity of the controller or processor;
• the nature and extent of the controller or processor's processing activities;
• the substantial likelihood of injury to the public;
• the safety of persons or property;
• whether the controller or processor has violated the DPDPA or similar laws in the past; and
• whether such alleged violation was likely caused by human or technical error.

Nothing in the DPDPA should be construed as providing the basis for, or be subject to, a private right of action for violations of said sections or any other law (§12D-111(d) of Title 6 of the Delaware Code).

9.1 Enforcement decisions

Not applicable.