MODULE 7

Data Privacy Act of 2012

(Republic Act No. 10173)
Declaration of Policy.
Republic Act No. 10173 or Data Privacy Act of 2012 is an act protecting individual personal information in information
and communications systems in the government and the private sector,
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.

Definition of Terms.

(a) Commission shall refer to the National Privacy Commission created by virtue of this Act.

(b) 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
personal information about and/or relating to him or her. Consent shall be evidenced by written, electronic or recorded means. It may also be given on behalf of the
data subject by an agent specifically authorized by the data subject to do so.

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

(d) Direct marketing refers to communication by whatever means of any advertising or marketing material which is directed to particular individuals.

(e) Filing system refers to any act 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 person is readily accessible.

(f) 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 or 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.

(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.
Personal Information is any information, whether recorded or not, about an identifiable individual. Identifiable individual -
means an individual who can be readily identified
(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.

(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.

(j) Processing 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.

(k) Privileged information refers to any and all forms of data which under the Rules of Court and other pertinent laws constitute privileged communication.

(l) 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 person, 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 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.

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 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.

Protection Afforded to Journalists and Their Sources.

Nothing in this Act shall be construed as to have amended or repealed the provisions of Republic Act No. 53, which affords the publishers, editors or duly accredited
reporters of any newspaper, magazine or periodical of general circulation protection from being compelled to reveal the source of any news report or information
appearing in said publication which was related in any confidence to such publisher, editor, or reporter.

PROCESSING OF PERSONAL INFORMATION

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.
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.

Sensitive Personal Information and Privileged Information.

The processing of sensitive personal information and privileged information shall be 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.

Subcontract of Personal Information.

A personal information controller may subcontract the processing of personal information: Provided, That the personal information controller shall be responsible for
ensuring that proper safeguards are in place to ensure the confidentiality of the personal information processed, prevent its use for unauthorized purposes, and
generally, comply with the requirements of this Act and other laws for processing of personal information. The personal information processor shall comply with all the
requirements of this Act and other applicable laws.

Extension of Privileged Communication.

Personal information controllers may invoke the principle of privileged communication over privileged information that they lawfully control or process. Subject to
existing laws and regulations, any evidence gathered on privileged information is inadmissible.

RIGHTS OF THE DATA SUBJECT

The data subject is entitled to:

(a) Be informed whether personal information pertaining to him or her shall be, are being or have been processed;
(b) Be furnished the information indicated hereunder before the entry of his or her personal information into the processing system of the personal information
controller, or at the next practical opportunity:

(1) Description of the personal information to be entered into the system;

(2) Purposes for which they are being or are to be processed;
(3) Scope and method of the personal information processing;
(4) The recipients or classes of recipients to whom they are or may be disclosed;
(5) Methods utilized for automated access, if the same is allowed by the data subject, and the extent to which such access is authorized;
(6) The identity and contact details of the personal information controller or its representative;
(7) The period for which the information will be stored; and
(8) The existence of their rights, i.e., to access, correction, as well as the right to lodge a complaint before the Commission.

Any information supplied or declaration made to the data subject on these matters shall not be amended without prior notification of data subject: Provided, That the
notification under subsection (b) shall not apply should the personal information be needed pursuant to a subpoena or when 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 or when necessary or desirable in the context of an
employer-employee relationship, between the collector and the data subject, or when the information is being collected and processed as a result of legal obligation;

(c) Reasonable access to, upon demand, the following:

(1) Contents of his or her personal information that were processed;
(2) Sources from which personal information were obtained;
(3) Names and addresses of recipients of the personal information;
(4) Manner by which such data were processed;
(5) Reasons for the disclosure of the personal information to recipients;
(6) Information on automated processes where the data will or likely to be made as the sole basis for any decision significantly affecting or will affect the
data subject;
(7) Date when his or her personal information concerning the data subject were last accessed and modified; and
(8) The designation, or name or identity and address of the personal information controller;

(d) Dispute the inaccuracy or error in the personal information and have the personal information controller correct it immediately and accordingly, unless the request
is vexatious or otherwise unreasonable. If the personal information have 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 recipients thereof: Provided, That the third parties who
have previously received such processed personal information shall he informed of its inaccuracy and its rectification upon reasonable request of the data subject;

(e) Suspend, withdraw or order the blocking, removal or destruction of his or her personal information from the personal information controller’s filing system upon
discovery and substantial proof that the personal information are incomplete, outdated, false, unlawfully obtained, used for unauthorized purposes or are no longer
necessary for the purposes for which they were collected. In this case, the personal information controller may notify third parties who have previously received such
processed personal information; and

(f) Be indemnified for any damages sustained due to such inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use of personal information.

Transmissibility of Rights of the Data Subject. – The lawful heirs and assigns of the data subject may invoke the rights of the data subject for, which he or she is an heir
or 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.

Right to Data Portability. – The data subject shall have the right, where personal information is processed by electronic means and in a structured and commonly used
format, to obtain from the personal information controller a copy of data undergoing processing in an electronic or structured format, which is commonly used and
allows for further use by the data subject. The Commission may specify the electronic format referred to above, as well as the technical standards, modalities and
procedures for their transfer.

Non-Applicability. – The immediately preceding sections are not applicable if the processed personal information 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 information shall be
held under strict confidentiality and shall be used only for the declared purpose. Likewise, the immediately preceding sections are not applicable to processing of
personal information gathered for the purpose of investigations in relation to any criminal, administrative or tax liabilities of a data subject.