Notes on the Philippine Data Privacy Act of 2012
By: Emmanuel S. Caliwan
Tags: Data Privacy Law, Philippines, Regulatory Compliance

Data Privacy Act of 2012

Right to Privacy

Ø The right to be let alone — the most comprehensive of rights and the right most valued by civilized men[1].

Right to Information Privacy

Ø The individual’s ability to control the flow of information concerning or describing him, which however must be overbalanced by legitimate public concerns. To deprive an individual of his power to control or determine whom to share information of his personal details would deny him of his right to his own personhood.[2]

National Privacy Commission

Ø The Regulatory Body task “to administer and implement the provisions of [the Data Privacy Act], and to monitor and ensure compliance of the country with international standards set for data protection”[3]

State Policy on Data Privacy

Ø “It is the policy of the State to protect the fundamental human right of privacy, of communication while ensuring the free flow of information to promote innovation and growth.”[4]

Extraterritorial Application

Ø The [Data Privacy Act] applies to an act done or practice engaged in and outside of the Philippines by an entity if:

(a) The act, practice or processing relates to personal information about a Philippine citizen or a resident;

(b) The entity has a link with the Philippines, and the entity is processing personal information in the Philippines or even if the processing is outside the Philippines as long as it is about Philippine citizens or residents such as, but not limited to, the following:

(1) A contract is entered in the Philippines;

(2) A juridical entity unincorporated in the Philippines but has central management and control in the country; and

(3) An entity that has a branch, agency, office or subsidiary in the Philippines and the parent or affiliate of the Philippine entity has access to personal information; and

© The entity has other links in the Philippines such as, but not limited to:

(1) The entity carries on business in the Philippines; and

(2) The personal information was collected or held by an entity in the Philippines.

A. Personal vs. Sensitive Personal Information Personal Information[5]

Ø refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual.

Example of Personal Information -

¨ Name¨ Home Address¨ Business Address¨ Email Address¨ Telephone Number — Work¨ Telephone Number — Home

Sensitive Personal Information[6]

Ø refers to personal information:

(1) About an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations;

(2) About an individual’s health, education, genetic or sexual life of a person, or to any proceeding for any offense committed or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings;

(3) Issued by government agencies peculiar to an individual which includes, but not limited to, social security numbers, previous or current health records, licenses or its denials, suspension or revocation, and tax returns; and

(4) Specifically established by an executive order or an act of Congress to be kept classified.

Examples of Sensitive Personal Information -

¨ Date of Birth¨ Marital Status¨ Color, Race or Ethnic Origin¨ Religion (Religious beliefs or affiliations)¨ Education¨ Photo¨ Biometrics¨ Political Association¨ Philosophical Beliefs/Orientation¨ Health¨ Sexual life/preference/practice¨ Offence committed or alleged to have been committed, the disposal of such proceedings, or the sentence of any court in such proceedings¨ Issued by government agencies peculiar to an individual

• Unique identifiers

• previous or current health records

• Licenses or its denials, suspension, or revocation

• Tax returns

*Privilege Information

Ø refers to any and all forms of data which under the Rules of Court and other pertinent laws constitute privileged communication.

(*not included on the Bar syllabus)

B. Scope

[The Data Privacy Act of 2012] applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use

equipment that are located in the Philippines, or those who maintain an office, branch, or agency in the Philippines[7].

Personal Information Controller[8] (PIC)

Ø refers to a person or organization who controls the collection, holding, processing or use of personal information, including a person or organization who instructs another person or organization to collect, hold, process, use, transfer or disclose personal information on his or her behalf.

The term excludes:

(1) A person or organization who performs such functions as instructed by another person or organization; and

(2) An individual who collects, holds, processes or uses personal information in connection with the individual’s personal, family or household affairs.

{Examples of PICs processing personal data needed for their day to day activities — Mercury Drugs through their Suki Card, SM through SM Advantage Card, Jollibee Group through Happy Plus Card, All Banks, All Insurance Companies, Travel Agencies, Hospitals, and All Government entities.}

Personal Information Processor[9] (PIP)

Ø refers to any natural or juridical person qualified to act as such under this Act to whom a personal information controller may outsource the processing of personal data pertaining to a data subject.

{Examples of PIPs Mail Service Providers, Outsource Companies for purposes as needed by the Principal Company, IT Service Provider etc.}

Processing Exempt from the Coverage of the Data Privacy Act

Ø This Act does not apply to the following:

(a) Information about any individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual, including:

(1) The fact that the individual is or was an officer or employee of the government institution;

(2) The title, business address, and office telephone number of the individual;

(3) The classification, salary range, and responsibilities of the position held by the individual; and

(4) The name of the individual on a document prepared by the individual in the course of employment with the government;

(b) Information about an individual who is or was performing service under contract for a government institution that relates to the services performed, including the terms of the contract, and the name of the individual given in the course of the performance of those services;

© Information relating to any discretionary benefit of a financial nature such as the granting of a license or permit given by the government to an individual, including the name of the individual and the exact nature of the benefit;

(d) Personal information processed for journalistic, artistic, literary, or research purposes;

(e) Information necessary in order to carry out the functions of public authority which include the processing of personal data for the performance by the independent, central monetary authority and law enforcement and regulatory agencies of their constitutionally and statutorily mandated functions. Nothing in this Act shall be construed as to have amended or repealed Republic Act №1405, otherwise known as the Secrecy of Bank Deposits Act; Republic Act №6426, otherwise known as the Foreign Currency Deposit Act; and Republic Act №9510, otherwise known as the Credit Information System Act (CISA);

(f) Information necessary for banks and other financial institutions under the jurisdiction of the independent, central monetary authority or Bangko Sentral ng Pilipinas to comply with Republic Act №9510, and Republic Act №9160, as amended, otherwise known as the Anti-Money Laundering Act and other applicable laws; and

(g) Personal information originally collected from residents of foreign jurisdictions in accordance with the laws of those foreign jurisdictions, including any applicable data privacy laws, which is being processed in the Philippines.

C. Processing of Personal Information

Ø The processing of personal information shall be allowed, subject to compliance with the requirements of this Act and other laws allowing disclosure of information to the public and adherence to the principles of transparency, legitimate purpose, and proportionality.[10]

Transparency

Ø The data subject must be aware of the nature, purpose, and extent of the processing of his or her personal data.

Ø Including the risks and safeguards involved the identity of the personal information controller, his or her rights as a data subject, and how these can be exercised. Any information and communication relating to the processing of personal data should be easy to access and understand, using clear and plain language.[11]

Legitimate Purpose

Ø Processing of information shall be compatible with a declared and specified purpose which must not be contrary to law, morals or public policy.[12]

Proportionality

Ø The processing of information shall be adequate, relevant, suitable, necessary, and not excessive in relation to a declared and specified purpose. Personal data shall be processed only if the purpose of the processing could not reasonably be fulfilled by other means.[13]

Criteria for Lawful Processing of Personal Information[14]

The processing of personal information shall be permitted only if not otherwise prohibited by law, and when at least one of the following conditions exists:

(a) The data subject has given his or her consent;

(b) The processing of personal information is necessary and is related to the fulfillment of a contract with the data subject or in order to take steps at the request of the data subject prior to entering into a contract;

© The processing is necessary for compliance with a legal obligation to which the personal information controller is subject;

(d) The processing is necessary to protect vitally important interests of the data subject, including life and health;

(e) The processing is necessary in order to respond to national emergency, to comply with the requirements of public order and safety, or to fulfill functions of public authority which necessarily includes the processing of personal data for the fulfillment of its mandate; or

(f) The processing is necessary for the purposes of the legitimate interests pursued by the personal information controller or by a third party or parties to whom the data is disclosed, except where such interests are overridden by fundamental rights and freedoms of the data subject which require protection under the Philippine Constitution.

Criteria for Lawful Processing of Sensitive Personal Information (and Privileged Information) [15]

The processing of sensitive personal information and privileged information shall be prohibited, except in the following cases:

(a) The data subject has given his or her consent, specific to the purpose prior to the processing, or in the case of privileged information, all parties to the exchange have given their consent prior to processing;

(b) The processing of the same is provided for by existing laws and regulations: Provided, That such regulatory enactments guarantee the protection of the sensitive personal information and the privileged information: Provided, further, That the consent of the data subjects are not required by law or regulation permitting the processing of the sensitive personal information or the privileged information;

© The processing is necessary to protect the life and health of the data subject or another person, and the data subject is not legally or physically able to express his or her consent prior to the processing;

(d) The processing is necessary to achieve the lawful and non-commercial objectives of public organizations and their associations: Provided, That such processing is only confined and related to the bona fide members of these organizations or their associations: Provided, further, That the sensitive personal information are not transferred to third parties: Provided, finally, That consent of the data subject was obtained prior to processing;

(e) The processing is necessary for purposes of medical treatment, is carried out by a medical practitioner or a medical treatment institution, and an adequate level of protection of personal information is ensured; or

(f) The processing concerns such personal information as is necessary for the protection of lawful rights and interests of natural or legal persons in court proceedings, or the establishment, exercise, or defense of legal claims, or when provided to government or public authority.

Consent of the Data Subject

Ø Refers to any freely given, specific, informed indication of will, whereby the data subject agrees to the collection and processing of personal information about and/or relating to him or her.

Ø Consent shall be evidenced by written, electronic, or recorded means.

Ø It may also be given on behalf of the data subject by an agent specifically authorized by the data subject to do so.

Principle of Accountability[16]

Ø Each personal information controller is responsible for personal information under its control or custody, including information that has been transferred to a third party for processing, whether domestically or internationally, subject to cross-border arrangement and cooperation.

D. Rights of Data Subject

Data Subject

Ø Refers to an individual whose personal information is processed.[17]

Rights of Data Subject

The data subject is entitled to:

Right to Information[18]

Ø Be informed whether personal information pertaining to him or her shall be, are being or have been processed;

Ø Be furnished the information indicated hereunder before the entry of his or her personal information into the processing system of the personal information controller, or at the next practical opportunity:

(1) Description of the personal information to be entered into the system;

(2) Purposes for which they are being or are to be processed;

(3) Scope and method of the personal information processing;

(4) The recipients or classes of recipients to whom they are or may be

(5) Methods utilized for automated access, if the same is allowed by the data subject, and the extent to which such access is authorized;

(6) The identity and contact details of the personal information controller or its representative;

(7) The period for which the information will be stored; and

(8) The existence of their rights, i.e., to access, correct, as well as the right to lodge a complaint before the Commission.

Any information supplied or declaration made to the data subject on these matters shall not be amended without prior notification of data subject: Provided, That the notification under subsection (b) shall not apply should the personal information be needed pursuant to a subpoena or when the collection and processing are for obvious purposes, including when it is necessary for the performance of or in relation to a contract or service or when necessary or desirable in the context of an employer-employee relationship, between the collector and the data subject, or when the information is being collected and processed as a result of a legal obligation;

Right to Access[19]

Ø Reasonable access to, upon demand, the following:

(1) Contents of his or her personal information that were processed;

(2) Sources from which personal information was obtained;

(3) Names and addresses of recipients of the personal information;

(4) Manner by which such data were processed;

(5) Reasons for the disclosure of the personal information to recipients;

(6) Information on automated processes where the data will or likely to be made as to the sole basis for any decision significantly affecting or will affect the data subject;

(7) Date when his or her personal information concerning the data subject was last accessed and modified; and

(8) The designation, or name or identity and address of the personal information controller;

Right to Rectification or Correction[20]

Ø Dispute the inaccuracy or error in the personal information and have the personal information controller correct it immediately and accordingly unless the request is vexatious or otherwise unreasonable.

Ø If the personal information has been corrected, the personal information controller shall ensure the accessibility of both the new and the retracted information and the simultaneous receipt of the new and the retracted information by recipients thereof: Provided, That the third parties who have previously received such processed personal information shall be informed of its inaccuracy and its rectification upon reasonable request of the data subject;

Right to Erasure or Blocking[21]

Ø Suspend, withdraw or order the blocking, removal or destruction of his or her personal information from the personal information controller’s filing system upon discovery and substantial proof that the personal information is incomplete, outdated, false, unlawfully obtained, used for unauthorized purposes or are no longer necessary for the purposes for which they were collected. In this case, the personal information controller may notify third parties who have previously received such processed personal information; and

Right to Damages[22]

Ø Be indemnified for any damages sustained due to such inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use of personal information.

Right to Data Portability[23]

Ø The data subject shall have the right, where personal information is processed by electronic means and in a structured and commonly used format, to obtain from the personal information controller a copy of data undergoing processing in an electronic or structured format, which is commonly used and allows for further use by the data subject.

Ø The Commission may specify the electronic format referred to above, as well as the technical standards, modalities and procedures for their transfer.

Transmissibility of Rights of the Data Subject[24]

Ø The lawful heirs and assigns of the data subject may invoke the rights of the data subject for, which he or she is an heir or assignee at any time after the death of the data subject or when the data subject is incapacitated or incapable of exercising the rights as enumerated in the immediately preceding section.

Non Applicability of the Rights of Data Subject[25]

1. Processed personal information are used only for the needs of scientific and statistical research and, on the basis of such, no activities are carried out and no decisions are taken regarding the data subject.

2. Processing of personal information gathered for the purpose of investigations in relation to any criminal, administrative or tax liabilities of a data subject.

[1] Brandeis J, dissenting in Olmstead v.United States, 277 U.S. 438 (1928)

[2] Consuelo Ynares-Santiago, dissenting opinion in G.R. №167798 Kilusang Mayo Uno, et al., v. The Director General, National Economic Development Authority, et al., and G.R. №167930 Bayan Muna Rep. Satur C. Ocampo, et al., Eduardo Ermita, et al. (19 April 2006)

[3] Sec. 7 DPA

[4] Sec. 2, Republic Act 10173 — Data Privacy Act of 2012 (DPA)

[5] Sec. 3 (g) DPA

[6] Sec. 3 (l) DPA

[7] Sec. 4 DPA

[8] Sec. 3 (h) DPA

[9] Sec. 3 (i) DPA

[10] Sec. 11 DPA

[11] Sec. 18 (a) of the Implementing Rules and Regulations of the DPA (IRR DPA)

[12] Sec. 18 (b) IRR DPA

[13] Sec. 18 © IRR DPA

[14] Sec. 12 DPA

[15] Sec 13 DPA

[16] Sec. 21 DPA

[17] Sec. 3 © DPA

[18] Sec. 16 (a) & (b) DPA

[19] Sec. 16 © DPA

[20] Sec. 16 (d) DPA

[21] Sec. 16 (e) DPA

[22] Sec. 16 (f) DPA

[23] Sec. 18 DPA

[24] Sec. 17 DPA

[25] Sec. 19 DPA