Data Privacy Act of 2012
THE
LAW
REPUBLIC
ACT NO. 10173
AN
ACT PROTECTING INDIVIDUAL PERSONAL INFORMATION AND COMMUNICATIONS
SYSTEMS IN THE GOVERNMENT AND THE PRIVATE SECTOR, CREATING FOR THIS
PURPOSE A NATIONAL COMMISSION, AND FOR OTHER PURPOSES, OTHERWISE
KNOWN AS THE “DATA PRIVACY ACT OF 2012”
With the
enactment of the law, the State recognizes the vital role of
information and communication technology (ICT) in nation-building
vows to protect the fundamental human rights of privacy of
communication, and ensure that personal information and communication
systems in the government and in the private sector are secured and
protected.
Section
2 of the Data Privacy Act provides 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-buiding 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”.
The law
applies to the processing of all types of personal information and to
any natural and juridical persons involved in personal information
processing including those personal information controllers and
processors within or without the Philippines. However, the law does
not apply to all information relating to the government institution
as well as to officers or employees of the government.
THE
ISSUE
Whether
giving the phone number of a person without the consent of the owner
is violative the “Data Privacy Act of 2012?”
THE
ARGUMENTS
Prior to the
enactment of the “Data Privacy Act”, the constitutional rights of
a person has been long established in the Bill of Rights of the 1987
Philippine Constitution tangent with the Right to Privacy are the
following:
Section
1 – No person shall be deprived of life, liberty or property
without due process of law, nor
shall any person be denied the equal
protection of the law;
Section
2 - The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches of whatever nature
and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complaint and the witnesses he may produce, and
particularly describing the place to be search and the persons or
things to be seize.
Section 3
–(1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or hen public
safety or order requires otherwise as prescribed by law.
(2)
Any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding.
Section 4
– No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.
Section
7 – The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development, shall be afforded to citizens, subject to such
limitations, as may be provided by law.
Section 9 –
Private property shall not be taken for public use without just
compensation.
Section 10
– No law impairing the obligation of contracts shall be passed.
The law,
rather than being in violation of the fundamental human rights to
privacy, actually advances and supports the cause for the right to
privacy. It defines the scope, its applicability and prescribing
penalties on the violation of the law.
Pertinent
provision under Section 4 of the law provides the applicability and
non-applicability of the law which states:
“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
subject to the immediately succeeding paragraph: Provided, That
the requirements of Section 5 are complied with.
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;
(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.”
Its
applicability pertains to the processing of all types of personal
information of a person whether natural or juridical which involved
in personal information processing including those personal
information controllers and processors. Processing
as provided in Section 3, paragraph (j) refers to any operation or
any set of operations performed upon personal information including,
but not limited to, the collection, recording, organization, storage,
updating or modification, retrieval, consultation, use,
consolidation, blocking, erasure or destruction of data. This
processing of personal information shall be done by personal
information controller or personal information processor both
defined in the law. The law requires the compliance of the Act
provides the criteria for lawful processing of personal information
as provided in Sections 11 and 12 which states:
Section
11. General Data Privacy Principles. – 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.
Personal
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
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.
Processing
of personal information shall comply the requirements in Section 11
and atleast one of the five (5) conditions enumerated in Section 12
which includes that “the data subject has given his or her consent”
in paragraph (a).
We
suppose that the requirements in Section 11 has complied with, the
issue that the phone number was given to other person without the
consent of the owner, though this is the requiremement under Section
12, is alternative. Absent of the consent of data subject when anyone
of the other four conditions of Section 12 exits is not a vilation of
the law.
CONCLUSION
Giving
the phone number of a person without the consent of the owner is not
violative to “Data Privacy Act of 2012?”
