Data Privacy Act of 2012
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.
Whether giving the phone number of a person without the consent of the owner is violative the “Data Privacy Act of 2012?”
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.
Giving the phone number of a person without the consent of the owner is not violative to “Data Privacy Act of 2012?”