Implementation of the data privacy act in Philippines now in full swing

• Registration of personal data processing systems (whether automated or non-automated) that involve accessing or requiring sensitive personal information of at least 1,000 individuals; and
• Registration of automated processing operations subject to notification, where the automated processing becomes the sole basis of making decisions that would significantly affect the data subject.

RA10173 and the IRR defines “sensitive personal information” as personal information about one’s race, marital status, age, colour, and religious, philosophical or political affiliations; health, education; any court proceedings; issued by government agencies peculiar to an individual (eg, social security numbers, health records, licenses, tax returns); and those specifically declared as classified by law or regulation.

The period to comply with the foregoing may be extended by the NPC upon request for good cause shown. Additional registration requirements may be imposed by the NPC through issuances and circulars, including guidelines that will provide for procedures in complying with the current registration requirements mentioned above.

The IRR also fleshes out RA10173’s provisions on data breach. It is required that notification must be given by the personal information controller to the NPC and the affected data subjects within seventy-two (72) hours upon knowledge of, or when there is reasonable belief that –

• Sensitive personal information; or
• Any other information that may, under the circumstances, be used to enable identity fraud –

– have been acquired by an unauthorised person, and that such an unauthorised acquisition is likely to give rise to a real risk of serious harm to any affected data subject. Notification can be delayed only to the extent necessary to determine the scope of the breach, to prevent further disclosures, or to restore reasonable integrity to the information and communications system. Failure to comply with this duty of providing data breach notification, if determined to be unjustified, may constitute concealment of security incident/data breach sanctioned under RA10173 (subjected to mandatory fine and imprisonment).

The IRR also regulates outsourcing and subcontracting agreements between personal information controllers and personal information processors. It provides for stipulations that must appear in any outsourcing and subcontracting agreements that involve processing of personal data. Moreover, the IRR defines the term “data sharing” to mean as any disclosure or transfer to a third party of personal data under the custody of a personal information controller or processor. Generally, data sharing must require the consent of the data subject, even if the data is to be shared between related companies, affiliates, and other similar relationships. If data sharing will be for commercial purposes (eg, direct marketing), it must be covered by a data sharing agreement.

The NPC promises to be open to comments/suggestions from industry stakeholders, and responsive to their needs and concerns. Although the NPC will be releasing several official circulars, rules, and issuances that will serve as guidelines for proper compliance, it is hoped that the initial stages of implementing RA10173 will be a “learning” experience as well as an “adjustment” stage among the relevant sectors in the Philippines.

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