The wealth of information that you get to share over time as you fill
up forms, with private companies and with government offices can be enormous.
The same holds true on the internet and all this information can be accessed by
third parties. With this in mind,
Congress has passed Republic Act No. 10173 (“Data
Privacy Act of 2012″) establishing the
National Privacy Commission to safeguard individual personal information found
in the information communications systems of both the government and the
private sector. Under this law,
personal information is defined as “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.”
Coverage and
Application
The Act covers 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 xxx (Section 4).”
Excluded from Coverage
No, the former Chief Justice would not have been able to use this
law as defense in his impeachments case as the law has no application to
governmental information or those necessary to carry out governmental
functions, among others, namely:
“(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;
(c) 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 includes 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 No. 1405, otherwise known as the Secrecy of Bank
Deposits Act; Republic Act No. 6426, otherwise known as the Foreign Currency
Deposit Act; and Republic Act No. 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
No. 9510, and Republic Act No. 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.”
The foregoing are not protected by the Act.
With respect to concerns that the law may serve to curtail press
freedom, it specifically provides as follows:
“SEC. 5. Protection Afforded to
Journalists and Their Sources. – Nothing in this Act shall be construed as
to have amended or repealed the provisions of Republic Act No. 53, which
affords the publishers, editors or duly accredited reporters of any newspaper,
magazine or periodical of general circulation protection from being compelled
to reveal the source of any news report or information appearing in said publication
which was related in any confidence to such publisher, editor, or reporter.”
How covered information must be processed
The Act seeks to regulate the processing of personal information in
accordance with the “principles of transparency, legitimate purpose and
proportionality.” Such information must
be:
“(a) Collected for specified and legitimate
purposes determined and declared before, or as soon as reasonably practicable
after collection, and later processed in a way compatible with such declared,
specified and legitimate purposes only;
(b) Processed fairly and lawfully;
(c) Accurate, relevant and, where necessary for
purposes for which it is to be used the processing of personal information,
kept up to date; inaccurate or incomplete data must be rectified, supplemented,
destroyed or their further processing restricted;
(d) Adequate and not excessive in relation to
the purposes for which they are collected and processed;
(e) Retained only for as long as necessary for
the fulfillment of the purposes for which the data was obtained or for the
establishment, exercise or defense of legal claims, or for legitimate business
purposes, or as provided by law; and
(f) Kept in a form which permits identification
of data subjects for no longer than is necessary for the purposes for which the
data were collected and processed: Provided, That
personal information collected for other purposes may lie processed for
historical, statistical or scientific purposes, and in cases laid down in law
may be stored for longer periods: Provided, further, That
adequate safeguards are guaranteed by said laws authorizing their processing.
The personal information controller must ensure
implementation of personal information processing principles set out
herein.”(Section 11)
Conditions prior to processing
Processing can only be permitted if not 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;
(c) 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
(Section 12 ).
Please note that in one case decided by the Supreme Court, a
national identification system pursuant to A.O. 308 was found to be unconstitutional
and violative of the right to privacy (Ople vs. Torres, et al. G.R. 127685,
July 23, 1998) for the following reasons, inter
alia, -
“… Pursuant to said
administrative order, an individual must present his PRN [Population Reference
Number obtained via biometrics] everytime he deals with a government agency to
avail of basic services and security. His transactions with the government
agency will necessarily be recorded — whether it be in the computer or in the
documentary file of the agency. The individual's file may include his
transactions for loan availments, income tax returns, statement of assets and
liabilities, reimbursements for medication, hospitalization, etc. The more
frequent the use of the PRN, the better the chance of building a huge
formidable information base through the electronic linkage of the files. The
data may be gathered for gainful and useful government purposes; but the
existence of this vast reservoir of personal information constitutes a covert
invitation to misuse, a temptation that may be too great for some of our
authorities to resist.
We can even grant,
arguendo, that the computer data file will be limited to the name, address and
other basic personal infomation about the individual. Even that hospitable
assumption will not save A.O. No. 308 from constitutional infirmity for again
said order does not tell us in clear and categorical terms how these
information gathered shall be handled. It does not provide who shall control
and access the data, under what circumstances and for what purpose. These
factors are essential to safeguard the privacy and guaranty the integrity of
the information. Well to note, the computer linkage gives other government
agencies access to the information. Yet, there are no controls to guard against
leakage of information. When the access code of the control programs of the
particular computer system is broken, an intruder, without fear of sanction or
penalty, can make use of the data for whatever purpose, or worse, manipulate
the data stored within the system.
It is plain and we hold
that A.O. No. 308 falls short of assuring that personal information which will
be gathered about our people will only be processed for unequivocally specified
purposes. The lack of proper safeguards in this regard of A.O. No. 308 may
interfere with the individual's liberty of abode and travel by enabling
authorities to track down his movement; it may also enable unscrupulous persons
to access confidential information and circumvent the right against
self-incrimination; it may pave the way for "fishing expeditions" by
government authorities and evade the right against unreasonable searches and
seizures. The possibilities of abuse and misuse of the PRN, biometrics and
computer technology are accentuated when we consider that the individual lacks
control over what can be read or placed on his ID, much less verify the
correctness of the data encoded. They threaten the very abuses that the Bill of
Rights seeks to prevent.
The ability of sophisticated
data center to generate a comprehensive cradle-to-grave dossier on an
individual and transmit it over a national network is one of the most graphic
threats of the computer revolution. The computer is capable of producing a
comprehensive dossier on individuals out of information given at different
times and for varied purposes. It can continue adding to the stored data and
keeping the information up to date. Retrieval of stored date is simple. When
information of a privileged character finds its way into the computer, it can
be extracted together with other data on the subject. Once extracted,
the information is putty in the hands of any person. The end of privacy
begins.”
It would be interesting to see if R.A. 10173 has sufficiently addressed the concerns against
the now defunct A.O. 308.
Other conditions prior to processing
In addition, processing of such information is declared to be
prohibited except if:
“(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;
(c) 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 noncommercial 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.”(Section 13)
Interestingly enough, the privilege extends to privileged
information as controlled or processed by personal information controllers
(Section 15).
Data Rights
A person has the following data rights, such as to:
“(a) Be informed whether personal information
pertaining to him or her shall be, are being or have been processed;
(b) 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 disclosed;
(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, correction, 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 legal obligation;
(c) Reasonable access to, upon demand, the
following:
(1) Contents of his or her personal information
that were processed;
(2) Sources from which personal information
were 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 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 were last accessed and modified; and
(8) The designation, or name or identity and
address of the personal information controller;
(d) 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. If the personal information have 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 he informed of its inaccuracy and its rectification upon
reasonable request of the data subject;
(e) 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 are 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
(f) Be indemnified for any damages sustained
due to such inaccurate, incomplete, outdated, false, unlawfully obtained or
unauthorized use of personal information.” (Section 16)
Standards
for protection of information
A personal information controller must “implement reasonable and
appropriate organizational, physical and technical measures intended for the
protection of personal information against any accidental or unlawful
destruction, alteration and disclosure, as well as against any other unlawful
processing. xxx” and it is accountable for the same (Section 21). Heads of agencies are similar bound to secure
sensitive personal information (Section 22).
Acts that are
punishable
What happens to those who violate the Act? Unauthorized processing of personal and Sensitive Personal Information;
Accessing Personal Information and Sensitive Personal Information Due to
Negligence; Improper Disposal of Personal Information and Sensitive Personal
Information; Processing of
Personal Information and Sensitive Personal Information for Unauthorized
Purposes; Unauthorized Access or Intentional Breach; Concealment of Security Breaches
Involving Sensitive Personal Information; Malicious
Disclosure; Unauthorized
Disclosure or a Combination
or Series of Acts consisting of the aforementioned have all been made
punishable and penalized with imprisonment and
fines (Sections 25 to 33).
For corporations, partnerships and juridical persons, “the penalty
shall be imposed upon the responsible officers, as the case may be, who
participated in, or by their gross negligence, allowed the commission of the
crime. If the offender is a juridical person, the court may suspend or revoke
any of its rights under this Act. If the offender is an alien, he or she shall,
in addition to the penalties herein prescribed, be deported without further
proceedings after serving the penalties prescribed. If the offender is a public
official or employee and lie or she is found guilty of acts penalized under
Sections 27 and 28 of this Act, he or she shall, in addition to the penalties
prescribed herein, suffer perpetual or temporary absolute disqualification from
office, as the case may be (Section 34).” The aggrieved party can be entitled
to restitution as well under the New Civil Code (Section 37).
While the truth may set you free, this law insures that some
personal truths you can keep private. Currently, a person subject to arrest is
to be warned that anything he says can and will be used against him. It is a testament to the information age that
individuals should now be aware that, even without the threat of arrest,
anything he says or discloses can and will be used against him as well albeit
for other purposes such as marketing.
And he has to look to this law for protection.
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