Data Privacy Act of 20121.pdf

63. Offense Committed by Public Officer 64. Restitution 65. Fines and Penalties Rule XIV. Miscellaneous Provisions 66. Appeal 67. Period for Compliance 68. Appropriations Clause 69. Interpretation 70. Separability Clause 71. Repealing Clause 72. Effectivity Clause...

63. Offense Committed by Public Officer 64. Restitution 65. Fines and Penalties Rule XIV. Miscellaneous Provisions 66. Appeal 67. Period for Compliance 68. Appropriations Clause 69. Interpretation 70. Separability Clause 71. Repealing Clause 72. Effectivity Clause Rule I. Preliminary Provisions Section 1. Title. These rules and regulations shall be known as the “Implementing Rules and Regulations of the Data Privacy Act of 2012”, or the “Rules”. Section 2. Policy. These Rules further enforce the Data Privacy Act and adopt generally accepted international principles and standards for personal data protection. They safeguard the fundamental human right of every individual to privacy while ensuring free flow of information for innovation, growth, and national development. These Rules also recognize the vital role of information and communications technology in nation-building and enforce the State’s inherent obligation to ensure that personal data in information and communications systems in the government and in the private sector are secured and protected. Section 3. Definitions. Whenever used in these Rules, the following terms shall have the respective meanings hereafter set forth: a. “Act” refers to Republic Act No. 10173, also known as the Data Privacy Act of 2012; b. “Commission” refers to the National Privacy Commission; c. “Consent of the data subject” refers to any freely given, specific, informed indication of will, whereby the data subject agrees to the collection and processing of his or her personal, sensitive personal, or privileged information. Consent shall be evidenced by written, electronic or recorded means. It may also be given on behalf of a data subject by a lawful representative or an agent specifically authorized by the data subject to do so; 3 d. “Data subject” refers to an individual whose personal, sensitive personal, or privileged information is processed; e. “Data processing systems” refers to the structure and procedure by which personal data is collected and further processed in an information and communications system or relevant filing system, including the purpose and intended output of the processing; f. “Data sharing” is the disclosure or transfer to a third party of personal data under the custody of a personal information controller or personal information processor. In the case of the latter, such disclosure or transfer must have been upon the instructions of the personal information controller concerned. The term excludes outsourcing, or the disclosure or transfer of personal data by a personal information controller to a personal information processor; g. “Direct marketing” refers to communication by whatever means of any advertising or marketing material which is directed to particular individuals; h. “Filing system” refers to any set of information relating to natural or juridical persons to the extent that, although the information is not processed by equipment operating automatically in response to instructions given for that purpose, the set is structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily accessible; i. “Information and communications system” refers to a system for generating, sending, receiving, storing, or otherwise processing electronic data messages or electronic documents, and includes the computer system or other similar device by which data is recorded, transmitted, or stored, and any procedure related to the recording, transmission, or storage of electronic data, electronic message, or electronic document; j. “Personal data” refers to all types of personal information; k. “Personal data breach” refers to a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored, or otherwise processed; 4 l. “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; m. “Personal information controller” refers to a natural or juridical person, or any other body who controls the processing of personal data, or instructs another to process personal data on its behalf. The term excludes: 1. A natural or juridical person, or any other body, who performs such functions as instructed by another person or organization; or 2. A natural person who processes personal data in connection with his or her personal, family, or household affairs; There is control if the natural or juridical person or any other body decides on what information is collected, or the purpose or extent of its processing; n. “Personal information processor” refers to any natural or juridical person or any other body to whom a personal information controller may outsource or instruct the processing of personal data pertaining to a data subject; o. “Processing” refers to any operation or 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. Processing may be performed through automated means, or manual processing, if the personal data are contained or are intended to be contained in a filing system; p. “Profiling” refers to any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyze or predict aspects concerning that natural person's performance at work, economic situation, health, personal preferences, interests, reliability, behavior, location or movements; 5  q. “Privileged information” refers to any and all forms of data, which, under the Rules of Court and other pertinent laws constitute privileged communication; r. “Public authority” refers to any government entity created by the Constitution or law, and vested with law enforcement or regulatory authority and functions; s. “Security incident” is an event or occurrence that affects or tends to affect data protection, or may compromise the availability, integrity and confidentiality of personal data. It includes incidents that would result to a personal data breach, if not for safeguards that have been put in place; t. Sensitive personal information 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 individual, 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 is 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. Rule II. Scope of Application Section 4. Scope. The Act and these Rules apply to the processing of personal data by any natural and juridical person in the government or private sector. They apply to an act done or practice engaged in and outside of the Philippines if: a. The natural or juridical person involved in the processing of personal data is found or established in the Philippines; b. The act, practice or processing relates to personal data about a Philippine citizen or Philippine resident; 6 Section 32. Implementation of Security Requirements. Notwithstanding the effective date of these Rules, the requirements in the preceding sections shall be implemented before any off-site or online access request is approved. Any data sharing agreement between a source agency and another government agency shall be subject to review of the Commission on its own initiative or upon complaint of data subject. Section 33. Applicability to Government Contractors. In entering into any contract with a private service provider that may involve accessing or requiring sensitive personal information from one thousand (1,000) or more individuals, a government agency shall require such service provider and its employees to register their personal data processing system with the Commission in accordance with the Act and these Rules. The service provider, as personal information processor, shall comply with the other provisions of the Act and these Rules, particularly the immediately preceding sections, similar to a government agency and its employees. Rule VIII. Rights of Data Subjects Section 34. Rights of the Data Subject. The data subject is entitled to the following rights: a. Right to be informed. 1. 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. 2. The data subject shall be notified and furnished with information indicated hereunder before the entry of his or her personal data into the processing system of the personal information controller, or at the next practical opportunity: (a) Description of the personal data to be entered into the system; 31  (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; (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 for which the information will be stored; and (i) The existence of their rights as data subjects, including the right to access, correction, and object to the processing, as well as the right to lodge a complaint before the Commission. b. 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. When a data subject objects or withholds consent, the personal information controller shall no longer process the personal data, unless: 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 32  3. The information is being collected and processed as a result of a legal obligation. c. Right to Access. The data subject has the right to reasonable access to, upon demand, the following: 1. Contents of his or her personal data that were processed; 2. Sources from which personal data were obtained; 3. Names and addresses of recipients of the personal data; 4. Manner by which such data were processed; 5. Reasons for the disclosure of the personal data to recipients, if any; 6. 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; 7. Date when his or her personal data concerning the data subject were last accessed and modified; and 8. The designation, name or identity, and address of the personal information controller. d. Right to rectification. The data subject has the right to dispute the inaccuracy or error in the personal data and have the VEXATI personal information controller correct it immediately and OUS- accordingly, unless the request is vexatious or otherwise unreasonable. If the personal data has been corrected, the causing or personal information controller shall ensure the accessibility tending of both the new and the retracted information and the to cause annoyan simultaneous receipt of the new and the retracted information ce, by the intended recipients thereof: Provided, That receipients frustratio n, or or third parties who have previously received such processed worry personal data shall be informed of its inaccuracy and its rectification, upon reasonable request of the data subject. e. 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. 33  1. 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; (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. 2. The personal information controller may notify third parties who have previously received such processed personal information. f. 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. Section 35. Transmissibility of Rights of the Data Subject. The lawful heirs and assigns of the data subject may invoke the rights of the data subject to which he or she is an heir or an 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. Section 36. 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 34 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. Section 37. Limitation on Rights. The immediately preceding sections shall not be applicable if the processed personal data 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: Provided, that the personal data shall be held under strict confidentiality and shall be used only for the declared purpose. The said sections are also not applicable to the processing of personal data gathered for the purpose of investigations in relation to any criminal, administrative or tax liabilities of a data subject. Any limitations on the rights of the data subject shall only be to the minimum extent necessary to achieve the purpose of said research or investigation. Rule IX. Data Breach Notification. Section 38. Data Breach Notification. a. The Commission and affected data subjects shall be notified by the personal information controller within seventy-two (72) hours upon knowledge of, or when there is reasonable belief by the personal information controller or personal information processor that, a personal data breach requiring notification has occurred. b. Notification of personal data breach shall be required when sensitive personal information or any other information that may, under the circumstances, be used to enable identity fraud are reasonably believed to have been acquired by an unauthorized person, and the personal information controller or the Commission believes that such unauthorized acquisition is likely to give rise to a real risk of serious harm to any affected data subject. 35  b. A personal information controller shall designate an individual or individuals who are accountable for its compliance with the Act. The identity of the individual or individuals so designated shall be made known to a data subject upon request. Section 51. Accountability for Violation of the Act, these Rules and Other Issuances of the Commission. a. Any natural or juridical person, or other body involved in the processing of personal data, who fails to comply with the Act, these Rules, and other issuances of the Commission, shall be liable for such violation, and shall be subject to its corresponding sanction, penalty, or fine, without prejudice to any civil or criminal liability, as may be applicable. b. In cases where a data subject files a complaint for violation of his or her rights as data subject, and for any injury suffered as a result of the processing of his or her personal data, the Commission may award indemnity on the basis of the applicable provisions of the New Civil Code. c. In case of criminal acts and their corresponding personal penalties, the person who committed the unlawful act or omission shall be recommended for prosecution by the Commission based on substantial evidence. If the offender is a corporation, partnership, or any juridical person, the responsible officers, as the case may be, who participated in, or by their gross negligence, allowed the commission of the crime, shall be recommended for prosecution by the Commission based on substantial evidence. Rule XIII. Penalties Section 52. Unauthorized Processing of Personal Information and Sensitive Personal Information. a. A penalty of imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on persons who process 43  personal information without the consent of the data subject, or without being authorized under the Act or any existing law. b. A penalty of imprisonment ranging from three (3) years to six (6) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Four million pesos (Php4,000,000.00) shall be imposed on persons who process sensitive personal information without the consent of the data subject, or without being authorized under the Act or any existing law. Section 53. Accessing Personal Information and Sensitive Personal Information Due to Negligence. a. A penalty of imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on persons who, due to negligence, provided access to personal information without being authorized under the Act or any existing law. b. A penalty of imprisonment ranging from three (3) years to six (6) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Four million pesos (Php4,000,000.00) shall be imposed on persons who, due to negligence, provided access to sensitive personal information without being authorized under the Act or any existing law. Section 54. Improper Disposal of Personal Information and Sensitive Personal Information. a. A penalty of imprisonment ranging from six (6) months to two (2) years and a fine of not less than One hundred thousand pesos (Php100,000.00) but not more than Five hundred thousand pesos (Php500,000.00) shall be imposed on persons who knowingly or negligently dispose, discard, or abandon the personal information of an individual in an area accessible to the public or has otherwise placed the personal information of an individual in its container for trash collection. 44  b. A penalty of imprisonment ranging from one (1) year to three (3) years and a fine of not less than One hundred thousand pesos (Php100,000.00) but not more than One million pesos (Php1,000,000.00) shall be imposed on persons who knowingly or negligently dispose, discard or abandon the sensitive personal information of an individual in an area accessible to the public or has otherwise placed the sensitive personal information of an individual in its container for trash collection. Section 55. Processing of Personal Information and Sensitive Personal Information for Unauthorized Purposes. a. A penalty of imprisonment ranging from one (1) year and six (6) months to five (5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00) shall be imposed on persons processing personal information for purposes not authorized by the data subject, or otherwise authorized under the Act or under existing laws. b. A penalty of imprisonment ranging from two (2) years to seven (7) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on persons processing sensitive personal information for purposes not authorized by the data subject, or otherwise authorized under the Act or under existing laws. Section 56. Unauthorized Access or Intentional Breach. A penalty of imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on persons who knowingly and unlawfully, or violating data confidentiality and security data systems, breaks in any way into any system where personal and sensitive personal information are stored. Section 57. Concealment of Security Breaches Involving Sensitive Personal Information. A penalty of imprisonment ranging from one (1) year and six (6) months to five (5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00) shall be imposed on persons who, 45 after having knowledge of a security breach and of the obligation to notify the Commission pursuant to Section 20(f) of the Act, intentionally or by omission conceals the fact of such security breach. Section 58. Malicious Disclosure. Any personal information controller or personal information processor, or any of its officials, employees or agents, who, with malice or in bad faith, discloses unwarranted or false information relative to any personal information or sensitive personal information obtained by him or her, shall be subject to imprisonment ranging from one (1) year and six (6) months to five (5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00). Section 59. Unauthorized Disclosure. a. Any personal information controller or personal information processor, or any of its officials, employees, or agents, who discloses to a third party personal information not covered by the immediately preceding section without the consent of the data subject, shall be subject to imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00). b. Any personal information controller or personal information processor, or any of its officials, employees or agents, who discloses to a third party sensitive personal information not covered by the immediately preceding section without the consent of the data subject, shall be subject to imprisonment ranging from three (3) years to five (5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00). Section 60. Combination or Series of Acts. Any combination or series of acts as defined in Sections 52 to 59 shall make the person subject to imprisonment ranging from three (3) years to six (6) years and a fine of not less than One million pesos (Php1,000,000.00) but not more than Five million pesos (Php5,000,000.00). 46 Section 61. Extent of Liability. If the offender is a corporation, partnership or any juridical person, 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. Where applicable, the court may also 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 he or she is found guilty of acts penalized under Sections 54 and 55 of these Rules, 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 62. Large-Scale. The maximum penalty in the corresponding scale of penalties provided for the preceding offenses shall be imposed when the personal data of at least one hundred (100) persons are harmed, affected, or involved, as the result of any of the above-mentioned offenses. Section 63. Offense Committed by Public Officer. When the offender or the person responsible for the offense is a public officer, as defined in the Administrative Code of 1987, in the exercise of his or her duties, he or she shall likewise suffer an accessory penalty consisting of disqualification to occupy public office for a term double the term of the criminal penalty imposed. Section 64. Restitution. Pursuant to the exercise of its quasi-judicial functions, the Commission shall award indemnity to an aggrieved party on the basis of the provisions of the New Civil Code. Any complaint filed by a data subject shall be subject to the payment of filing fees, unless the data subject is an indigent. Section 65. Fines and Penalties. Violations of the Act, these Rules, other issuances and orders of the Commission, shall, upon notice and hearing, be subject to compliance and enforcement orders, cease and desist orders, temporary or permanent ban on the processing of 47 personal data, or payment of fines, in accordance with a schedule to be published by the Commission. Rule XIV. Miscellaneous Provisions Section 66. Appeal. Appeal from final decisions of the Commission shall be made to the proper courts in accordance with the Rules of Court, or as may be prescribed by law. Section 67. Period for Compliance. Any natural or juridical person or other body involved in the processing of personal data shall comply with the personal data processing principles and standards of personal data privacy and security already laid out in the Act. Personal information controllers and Personal Information processors shall register with the Commission their data processing systems or automated processing operations, subject to notification, within one (1) year after the effectivity of these Rules. Any subsequent issuance of the Commission, including those that implement specific standards for data portability, encryption, or other security measures shall provide the period for its compliance. For a period of one (1) year from the effectivity of these Rules, a personal information controller or personal information processor may apply for an extension of the period within which to comply with the issuances of the Commission. The Commission may grant such request for good cause shown. Section 68. Appropriations Clause. The Commission shall be provided with appropriations for the performance of its functions which shall be included in the General Appropriations Act. Section 69. Interpretation. Any doubt in the interpretation of any provision of this Act shall be liberally interpreted in a manner that would uphold the rights and interests of the individual about whom personal data is processed. 48