LEX SIDUS

DATA PRIVACY ACT REVIEWER (BAR 2019)

DATA PRIVACY ACT OF 2012 (RA 10173)

PERSONAL vs SENSITIVE PERSONAL INFORMATION

Applies to both paper and electronic records.

Personal information 
Personal information 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 [Section 3(g) DPA].
Example:
Full name, Passport number, Vehicle plate number, Photograph/Video images of
an individual, Mobile telephone number, Personal email address, Thumbprint,
DNA profile, residential address, residential telephone number.
NOTE: A determination whether a data is a personal information or not can be
relative, it can be a personal information for one since it identified an individual
but may not be a personal information to another, for example:
A Student ID Number is considered as a personal information to those
within the school community but may not be considered a personal
information by those outside the community.

Sensitive Personal Information

A 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;

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(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. [Section 3(l) DPA].

NOTE: The law defines sensitive personal information by enumerating. An

information can also be considered Sensitive Personal Information by implication
if in essence the data processed falls under those enumerated, for example:

Birthdate – by providing such information, the age (which is a sensitive personal

information) will also be disclosed.

SCOPE
This Act 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. (Section 4 DPA)

Requisites

1. Must involve any processing of personal information of natural persons

2. By either natural or juridical persons

3. Who are either acting as a controller or processor and

4. Who may or may not be found in the Philippines for as long as they use
equipment or maintain an office, branch or agency in the Philippines.

Exceptions

1. 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:

a. The fact that the individual is or was an officer or employee of the

government institution;

b. The title, business address and office telephone number of the individual;

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c. The classification, salary range and responsibilities of the position held by

the individual; and

d. The name of the individual on a document prepared by the individual in

the course of employment with the government.

2. 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;

3. 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;

4. Personal information processed for journalistic, artistic, literary or research

purposes;

5. 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);

6. 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

7. 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.

Extraterritorial Application (Section 6)

Applies to entities within and outside of the Philippines when:

1. Processing of personal information is about a Philippine citizen or resident; or

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2. Processing of personal information is done by an entity who has a link with the
Philippines and such personal information is about a Philippine citizen or
resident, such as, but not limited to:
a. A Contract entered in the Philippines;
b. A foreign company with central management and control in the
Philippines
c. A foreign company who has a branch, agency, office or subsidiary in the
Philippines and the former has access to personal information in the
Philippines.
d. An entity doing business in the Philippines and the personal information
is collected and held in the Philippines.

PROCESSING OF PERSONAL INFORMATION

Processing

Any operation of any set of operations performed upon personal data including,
but not limited to, the collection, recording, organization, storage, updating or
modification, retrieval, consultation, use, consolidation, blocking, erasure or destruction
of data. (Sec 3.j DPA)

Personal Information Controller (PIC)

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. (Sec 3.h
DPA)

Personal Information Processor (PIP)

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. (Sec 3.i DPA)

Obligation of a PIC or PIP

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1. The PIC should collect personal information for specified and legitimate
purposes determined and declared before, or as soon as reasonably practicable
after collection.

2. The PIC should collect and process personal information adequately and not
excessively.

3. The PIC should process personal information fairly and lawfully, and in
accordance with the rights of a data subject.

4. The PIC should process accurate, relevant and up to date personal information.

5. The PIC should retain personal information only for as long as necessary for
the fulfillment of the purposes for which the data was obtained. The information
should be kept in a form which permits identification of data subjects for no
longer than is necessary.

6. The PIC must implement reasonable and appropriate organizational, physical

and technical measures intended for the protection of personal information.

Data Privacy Principles

Transparency

A data subject must be aware of the nature, purpose, and extent of the processing
of his or her personal data, including the risks and safeguards involved, the identity of
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.

Legitimate Purpose

The processing of information shall be compatible with a declared and specified

purpose, which must not be contrary to law, morals, or public policy.

1. Consent is required prior to the collection and processing of personal data,

subject to exemptions provided by the Act and other applicable laws and
regulations. When consent is required, it must be time-bound in relation to the
declared, specified and legitimate purpose. Consent given may be withdrawn.

2. The data subject must be provided specific information regarding the purpose
and extent of processing, including, where applicable, the automated processing
of his or her personal data for profiling, or processing for direct marketing, and
data sharing.

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3. Purpose should be determined and declared before, or as soon as reasonably

practicable, after collection.

4. Only personal data that is necessary and compatible with declared, specified,
and legitimate purpose shall be collected.

Proportionality

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.

Legal Basis for Processing of Personal Information (Sec. 12 and 13)

Basis for processing of Personal Information:

1. Consent - express consent of the data subject;

2. Contract- to supply goods or services they have requested, or to fulfil your

obligations under an employment contract. This also includes steps taken at their
request before entering into a contract;

3. Compliance with a legal obligation - if you are required by law to process the
data;

4. Vital interests - you can process personal information if it is necessary to protect

the data subject’s life and health;

5. National emergency - to respond to national emergency or to comply with the

requirements of public order and safety;

6. Public task - if you need to process personal information to carry out public
function or service and you have a legal basis for the processing; or

7. Legitimate interests: for the private sector, you can process personal data
without consent if you have a genuine and legitimate reason, unless this is
overridden by fundamental rights and freedoms of the data subject.

Basis for processing of Sensitive Personal Information:

1. Consent - express consent of the data subject;

2. Existing law and regulation - you can process sensitive personal information
(SPI) when there is a regulatory enactment which requires the processing;

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3. Protection of life and health - to protect someone’s life – the data subject or
another person, and the data subject is not legally/physically able to express his
consent;

4. Public organizations - refers to processing done by non-stock, non-profit

organizations, cooperatives, and the like, where processing is only confined and
related to the bona fide members;

5. Medical treatment - when processing is carried out by a by a medical

practitioner or a medical treatment institution, and there is adequate level of
protection;

6. Lawful rights and interests - when processing is necessary to protect lawful

rights and interests of in court proceedings, in the establishment/
exercise/defense of legal claims, or when provided to government or public
authority.

RIGHTS OF A DATA SUBJECT

Who is a Data Subject?

Data subject refers to an individual whose personal information is processed.

(Sec. 3(c)

1.  Right to be informed.

The data subject has a right to be informed whether personal data pertaining to
him or her shall be, are being, or have been processed, including the existence of
automated decision-making and profiling.

What information must be supplied?

(a) Description of the personal data;

(b) Purposes for which they are being or will be processed, including
processing for direct marketing, profiling or historical, statistical or
scientific purpose;

(c) Basis of processing, when processing is not based on the consent of the
data subject;

(d) Scope and method of the personal data processing;

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(e) The recipients or classes of recipients to whom the personal data are or
may be disclosed;

(f) Methods utilized for automated access, if the same is allowed by the
data subject, and the extent to which such access is authorized, including
meaningful information about the logic involved, as well as the
significance and the envisaged consequences of such processing for the
data subject;

(g) The identity and contact details of the personal data controller or its
representative;

(h) The period of retention; and

(i) The existence of their rights as data subjects.

2. Right to object

The data subject shall have the right to object to the processing of his or her
personal data, including processing for direct marketing, automated processing
or profiling. The data subject shall also be notified and given an opportunity to
withhold consent to the processing in case of changes or any amendment to the
information supplied or declared to the data subject in the preceding paragraph.

Exceptions:

1. The personal data is needed pursuant to a subpoena;

2. 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 to which
the data subject is a party, or when necessary or desirable in the context of an
employer-employee relationship between the collector and the data subject; or

3. The information is being collected and processed as a result of a legal

obligation.

3. Right to Access

The data subject has the right to reasonable access to, upon demand, the
following:

a. Contents of his or her personal data that were processed;

b. Sources from which personal data were obtained;

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c. Names and addresses of recipients of the personal data;

d. Manner by which such data were processed;

e. Reasons for the disclosure of the personal data to recipients, if any;

f. Information on automated processes where the data will, or is likely to, be

made as the sole basis for any decision that significantly affects or will
affect the data subject;

g. Date when his or her personal data concerning the data subject were last
accessed and modified; and

h. The designation, name or identity, and address of the personal

information controller.

4. Right to rectification

The data subject has the right to dispute the inaccuracy or error in the personal
data and have the personal information controller correct it immediately and
accordingly, unless the request is vexatious or otherwise unreasonable. If the
personal data 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 the intended
recipients thereof: Provided, That recipients or third parties who have previously
received such processed personal data shall be informed of its inaccuracy and its
rectification, upon reasonable request of the data subject.

5. Right to Erasure or Blocking

The data subject shall have the right to suspend, withdraw or order the blocking,
removal or destruction of his or her personal data from the personal information
controller’s filing system. This right may be exercised upon discovery and
substantial proof of any of the following:

a. The personal data is incomplete, outdated, false, or unlawfully obtained;

b. The personal data is being used for purpose not authorized by the data
subject;

c. The personal data is no longer necessary for the purposes for which they
were collected;

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d. The data subject withdraws consent or objects to the processing, and there
is no other legal ground or overriding legitimate interest for the
processing;

e. The personal data concerns private information that is prejudicial to data

subject, unless justified by freedom of speech, of expression, or of the
press or otherwise authorized;

f. The processing is unlawful;

g. The personal information controller or personal information processor

violated the rights of the data subject.

6. Right to damages

The data subject shall be indemnified for any damages sustained due to such
inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use
of personal data, taking into account any violation of his or her rights and
freedoms as data subject.

7. Right to Data Portability

Where his or her personal data is processed by electronic means and in a

structured and commonly used format, the data subject shall have the right to
obtain from the personal information controller a copy of such data in an
electronic or structured format that is commonly used and allows for further use
by the data subject. The exercise of this right shall primarily take into account the
right of data subject to have control over his or her personal data being processed
based on consent or contract, for commercial purpose, or through automated
means. The Commission may specify the electronic format referred to above, as
well as the technical standards, modalities, procedures and other rules for their
transfer.

8. Right to file a complaint

One whose data privacy rights have been violated, have a right to file a
complaint with the National Privacy Commission.

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