Data Privacy Act of 2012

 

Republic Act 10173

Data Privacy Act of 2012

 

Introduction

Republic Act 10173 also known as “Data Privacy Act of 2012” was promulgated on August 2012. It serves as a protection to the people who give out their personal information. It was made in compliance with the constitutional right of every Filipino people to privacy. A violation of such right is punishable under the said law.

It is stated in our Constitution that, “It is the policy of the State to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth. The State recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected.”1 It is therefore the duty of the government to protect the people’s right to privacy and to punish those who would violate it because it is stated in our Constitution.

The U.S. landmark case of Griswold vs. Connecticut, involves a law that prohibits the use of “any drug, medicinal article or instrument for the purpose of preventing conception.” In this case the Supreme Court of the United States ruled that the said law violates the constitutional right to privacy granted by the Bill of Rights on the ground that it violates the “right to marital privacy” of a married couple. The right to privacy is a way to protect the people from governmental intrusion or invasion of their personal space. In the words of Justice Douglas2,

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. 

We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Such law would deprive the people of their liberty to exercise what they want to do specially in their married life without due process. It is an intrusion to their constitutional right to privacy if it would be declared constitutional. Many would suffer punishment for exercising their freedom in their married life.

In Morfe vs. Mutuc3, the plaintiff contends that the periodical submission of their sworn statement of assets and liabilities is violative of due process as an oppressive exercise of police power and as an unlawful invasion of the constitutional right to privacy of each person. However, the Supreme Court ruled that the law requiring periodical submission of Statements of Assets and Liabilities (SAL) was constitutional.

It cannot be said that the challenged statutory provision calls for disclosure of information which infringes on the right of a person to privacy. It cannot be denied that the rational relationship such a requirement possesses with the objective of a valid statute goes very far in precluding assent to an objection of such character. This is not to say that a public officer, by virtue of position he holds, is bereft of constitutional protection; it is only to emphasize that in subjecting him to such a further compulsory revelation of his assets and liabilities, including the statement of the amounts of personal and family expenses, and the amount of income taxes paid for the next preceding calendar year, there is no unconstitutional intrusion into what otherwise would be a private sphere.”

The right to privacy is a fundamental right guaranteed by our Constitution. It is the duty of the government to ensure that such right is upheld at all times. The right to privacy is enshrined in the provisions of our Constitution. It is expressly recognized in Article 3, Section 1 of the Bill of Rights: “Section 1: No person shall be deprived of life, liberty, or property without due process of law, nor shall be denied the equal protection of the laws.” And also in “Section 3(1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.”

In the case of Ople vs. Torres4, Senator Blas F. Ople prays to invalidate Administrative Order No. 308 entitled “Adoption of a National Computerized Identification Reference System” issued by President Fidel V. Ramos on December 12, 1996. The two grounds are: 1) it is a usurpation of the power of Congress to legislate; and 2) it impermissibly intrudes on our citizenry’s protected zone of privacy. The Supreme Court declared that Administrative Order No. 308 is null and void for being unconstitutional.

The right to privacy is one of the most threatened rights of man living in a mass society.  The threats emanate from various sources– governments, journalists, employers, social scientists, etc. In the case at bar, the threat comes from the executive branch of government which by issuing A.O. No. 308 pressures the people to surrender their privacy by giving information about themselves on the pretext that it will facilitate delivery of basic services.  Given the record-keeping power of the computer, only the indifferent will fail to perceive the danger that  A.O. No. 308 gives the government the power to compile a devastating dossier against unsuspecting citizens.  It is timely to take note of the well-worded warning of Kalvin, Jr., “the disturbing result could be that everyone will live burdened by an unerasable record of his past and his limitations.  In a way, the threat is that because of its record-keeping, the society will have lost its benign capacity to forget.” Oblivious to this counsel, the dissents still say we should not be too quick in labelling the right to privacy as a fundamental right.  We close with the statement that the right to privacy was not engraved in our Constitution for flattery.”

Due to the advances of technology wherein information is being transferred or given through the computer via the internet or external hard drives, the government has to provide a means of controlling the free flow of information especially personal information without restricting or totally blocking it. The government made a good move by promulgating Republic Act 10173, but the law lacks rules of procedure on how it should be properly promulgated. Then again, there are loop holes in every law passed by the legislative body. It is important to find those holes and to fill in the gaps.

Data Privacy Act

The Data Privacy Act or Republic Act 10173 regulates the processing of personal information submitted by the people and collected by public or private sectors. It is promulgated to protect the right to privacy. The right to privacy is “any basic right or freedom to which all human beings are entitled and in whose exercise a government may not interfere (including rights to life and liberty as well as freedom of thought and expression and equality before the law).”5 It is the right to be free from interference by the public if those matters are personal in nature. The right to privacy generally means “the right to be let alone.”

Consent is an important criteria for lawful processing of personal information. One of the conditions under Section 12 (a) of R.A. 10173, is that the data subject has given his or her consent. The data subject as defined under R.A. 10173 is an individual whose personal information is processed.6 He or she should have given the data for a specific purpose and not for a general purpose. The data subject has the right to ask for the reasons why the information is being asked. He also has the right to question its validity and to refuse to give information if it violates his right to privacy.

SEC. 12. Criteria for Lawful Processing of Personal Information. – 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;

(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.”

According to Republic Act 10173, “Section 3(g) 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.” It refers to the information which is included in the data privacy act. If such information was processed without authority or consent from the owner of the information, the personal information controller or personal information processor shall be held criminally liable in violation of R.A. No. 10173.

There are two types of persons who may be criminally held liable according to Republic Act 10173 Section 3(h) and (i)7. These are the personal information controller and the personal information processor. It is their duty to contact and notify the National Privacy Commission and data subjects affected when the control system or information got compromised.

“Section 3(h) Personal information controller 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.”

“Section 3(i) Personal information processor 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.”

They can be held criminally liable for the following: 1) Unauthorized Processing of Personal Information and Sensitive Personal Information, 2) Accessing Personal Information and Sensitive Personal Information, 3) Due to Negligence, 4) Improper Disposal of Personal Information and Sensitive Personal Information, 5) Processing of Personal Information and Sensitive Personal Information for Unauthorized Purposes, 6) Unauthorized Access or Intentional Breach, 7) Concealment of Security Breaches Involving Sensitive Personal Information, 8) Malicious Disclosure, and 9) Unauthorized Disclosure.

But what if the person who acquires information is neither a personal information controller nor a personal information processor? Would he/she be liable under R.A. No. 10173? For example, A gave his personal information to B who is neither a controller nor a processor. Then B, with malicious intent to use the information for money, gave the information to C, with or without the consent of A. The question is would B be liable under Republic Act 10173? The answer is no. B is not liable because he is neither a controller nor a processor of information as defined under the law. This means that only those who are specifically stated by the law may be held liable.

Isn’t it the main purpose of the law is to prevent the all unauthorized disclosure of personal information not only those committed by controllers or processors. If we do not include those persons who benefitted in selling valuable personal information acquired by themselves, then these people can circumvent the law which prohibits unauthorized disclosure of personal information.

Republic Act 10173 states that processing of sensitive information and privileged information is 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;

(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.”8

The processing of sensitive and privileged information is prohibited because they are very important to the data subject. An example of sensitive information would be information about the health of the data subject. When such information is given to the public, the data subject’s life would be placed in danger. It is detrimental to the data subjects if sensitive and privileged information is processed without their consent and disclosed to people who want to harm them.

Conclusion

The modern world continues to grow, not only in information processing but also in the way people use it. It is important that laws be enacted in order to cope with the advancing and growing technology. It is the duty of the government to provide limitations in the processing of personal information without totally restricting the use of technology. The enactment of R.A. 10173 to uphold the constitutional right to privacy is commendable because in this day and age the internet has made information readily available to the public.

The law, however, appears to be incomplete because it does not penalize those who process information who are neither a personal information controller nor a personal information processor. What is the use of the Data Privacy Act if people who processes information to gain money? Isn’t it a violation of the right to privacy if a person who willfully and negligently disclosed an information regarding a data subject without his consent.

The world today is consist of free flow of information with the help of computers, one click and all the information you need is collected even without the consent of the person. That is why the government should uphold the constitutional right to privacy and provide a law to regulate the processing of information which can be used to inflict harm to the general public.

The Data Privacy Act will greatly restrict notorious criminals and big corporations from gathering different personal information and disseminate it for profit. They can now be penalize from such act and can prevent harm to people or data subjects or worse use it to blackmail them.

 

1 Republic Act 10173 Sec. 2

3 Morfe vs. Mutuc G.R. No. L-20387 January 31, 1968

4 Ople vs. Torres G.R. No. 127685 July 23, 1998

6 Republic Act. No. 10173, Section 3(c)

7 Republic Act No. 10173, Section 3(h) and (i)

8 Republic Act 10173, Section 13

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