Philippines - Data Protection Overview
1. Governing Texts
The Data Privacy Act of 2012 (Republic Act No. 10173) ('the Act') was the first comprehensive law covering data privacy in the Philippines. It became enforceable on 8 September 2012.
The National Privacy Commission ('NPC'), which was established in early 2016, later issued the Implementing Rules and Regulations of Republic Act No. 10173 ('IRR'), which became enforceable on 9 September 2016. The IRR provides, in greater detail, the requirements that individuals and entities must comply with when processing personal data, as well as the sanctions for violations of the Act.
As the primary legislation on data protection in the Philippines, the Act indicates that it is the policy of the State to protect the fundamental human right of privacy of communication while ensuring free flow of information with an end in view to promote innovation and growth, recognising the vital role of information and communications technology in nation-building and the inherent obligation of the State to ensure that personal data in the information and communications systems in the government and in the private sector is secured and protected.
Amendments seeking to strengthen the Act are currently underway. The amendments include, among others:
- granting of additional powers to the NPC;
- redefining of 'sensitive personal information' to include, among others, biometric and genetic data, as well as political affiliation;
- clarification of the Act's extraterritorial application;
- a definition for the digital age of consent;
- inclusion of performance of a contract as an additional criterion for the lawful basis for the processing of sensitive personal information; and
- the modification of criminal penalties.
At present, the proposed amendments are not yet in effect as the laws in relation to these amendments have not yet been passed.
The NPC is an independent body tasked to administer and implement the provisions of the Act and to ensure compliance of the country with international standards set for data protection. In the exercise of its functions, the NPC has issued the following circulars and advisories ('NPC Issuances'), which expand on the procedures for handling personal data:
- NPC Circular 16-01 Security of Personal Data in Government Agencies (10 October 2016) ('Circular 16-01');
- NPC Circular 16-02 Data Sharing Agreements Involving Government Agencies (10 October 2016) ('Circular 16-02');
- NPC Circular 16-03 Personal Data Breach Management (15 December 2016) ('Circular 16-03');
- NPC Circular 16-04 Rules of Procedure of the National Privacy Commission (15 December 2016) ('Circular 16-04');
- NPC Circular 17-01 Registration of Data Processing Systems and Notifications Regarding Automated Decision-Making (13 July 2017) ('Circular 17-01');
- NPC Advisory 2017-01 Designation of Data Protection Officers (14 March 2017) ('Advisory 17-01');
- NPC Advisory 2017-02 Access to Personal Data Sheets of Government Personnel (3 April 2017) ('Advisory 17-02');
- NPC Advisory 2017-03 Guidelines on Privacy Impact Assessments (31 July 2017) ('Advisory 17-03');
- NPC Advisory Opinion No. 2017-013: Data Sharing, Definition of Commercial Purposes, Scope, Data Protection Officer (6 March 2017) ('Advisory 2017-013');
- NPC Advisory Opinion No. 2017-019: Scope of NPC Circular No. 16-03 and Requirements for a Data Protection Officer (26 April 2017) ('Advisory 2017-019')
- NPC Circular 18-01 Rules of Procedure on Requests for Advisory Opinions (10 September 2018) ('Circular 18-01');
- NPC Circular 18-02 Guidelines on Compliance Checks (20 September 2018) ('Circular 18-02');
- NPC Circular 18-03 Rules on Mediation before the National Privacy Commission (18 December 2018) ('Circular 18-03');
- DOH-NPC Joint Memorandum Circular No. 2020-0001 – Guidelines on the Use of Telemedicine in COVID-19 Response ('JMC 2020-0001');
- NPC Advisory Opinion No. 2018-043 - Registration of Data Processing Systems ('AO 2018-043')
- DOH-NPC Joint Memorandum Circular No. 2020-0002 – Privacy Guidelines on the Processing and Disclosure of COVID-19 Related Data for Disease Surveillance and Response ('JMC 2020-0001');
- NPC Advisory 18-01 Guidelines on Security Incident and Personal Data Breach Reportorial Requirements (Advisory 18-01);
- NPC Advisory 18-02 Updated Templates on Security Incident and Personal Data Breach Reportorial Requirements (26 June 2018) ('Advisory 18-02');
- NPC Circular 20-1 Guidelines on the Processing of Personal Data for Loan-Related Transactions (14 September 2020) ('Circular 20-1');
- NPC Circular 20-02 Rules on the Issuance of Cease and Desist Orders – FAQs ('Circular 20-2');
- NPC Circular 2020-03 Data Sharing Agreements ('Circular 2020-3');
- NPC Circular No. 2021-01 Rules of Procedure of the National Privacy Commission which repeals Circular 16-04 and Circular 18-03 ('Circular 2021-01');
- NPC Circular 2021-02 – Guidelines On The Processing Of Personal Data During Public Health Emergencies For Public Health Measures ('Circular 2021-02';
- DOH-DENR-IPO-NPC Joint Administrative Order 22-01 Series of 2022 – Guidelines for online businesses reiterating the laws and regulations applicable to online businesses and consumers ('Joint Administrative Order 22-01');
- NPC Advisory 2020-01 Protocols for the Publication of Decisions, Resolutions and Orders on the NPC Website ('Advisory 2020-01');
- NPC Advisory 2020-01-A Amending Certain Provisions of NPC Advisory No. 2020-01: Protocols for the Publication of Decisions, Resolutions and Orders on the NPC Website ('Advisory 2020-01-A');
- NPC Advisory 2020-02 Guidelines on the use of Videoconferencing Technology for the Remote Appearance and Testimony of Parties Before the National Privacy Commission ('Advisory 2020-02');
- NPC Advisory 2020-03 Guidelines for Workplaces and Establishments Processing Personal Data for Covid-19 Response ('Advisory 2020-03');
- NPC Advisory 2020-03-A Amending NPC Advisory No. 2020-03 on the Guidelines for Workplaces and Establishments Processing Personal Data for Covid-19 Response ('Advisory 2020-03-A');
- NPC Advisory 2020-04 Guidelines on the Use of Closed-circuit Television (CCTV) Systems ('Advisory 2020-04');
- NPC Advisory 2021-01 Data Subject Rights ('Advisory 2021-01');
- NPC Advisory 2021-02 Guidance for the Use of the ASEAN Model Contract Clauses and ASEAN Data Management Framework ('Advisory 2021-02');
- NPC Advisory 2022-01 Guidelines on Requests for Personal Data of Public Officers ('Advisory 2022-01') and
- NPC Advisory 2021-03 Guidelines on the Processing of Personal Data for Election Campaign or Partisan Political Activity ('Advisory 2021-03').
Since its inception, the NPC has issued over 300 advisory opinions, which are responses to written requests or queries from data subjects, personal information controller ('PIC'), and personal information processor ('PIP'), covering a variety of data privacy topics/issues, including privacy violations, personal data breaches, personal data protection, and interpretations of the Act, the IRR, and other NPC issuances.
1.3. Case law
Given the relatively short period since the implementation of data privacy laws in the Philippines, the number of published cases by the Supreme Court of the Philippines specifically on the Act and its IRR is very limited.
In Cadajas v. People of the Philippines (G.R. No. 247348, 16 November 2021), the Supreme Court stated that because the screenshots were obtained by private individuals, not by government agents, then the right to privacy under the Constitution of the Republic of the Philippines's ('the Constitution') Bill of Rights cannot be invoked. Instead, the applicable laws are, among others, the Civil Code of the Philippines (Republic Act No. 386) and the Act. Under the Act, the processing of personal information and sensitive personal information is allowed when necessary for determination of criminal liability of a data subject and when necessary for the protection of the lawful rights and interests of persons in court proceedings.
2. Scope of Application
The Act applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing.
The Act covers acts done or practices engaged in and outside of the Philippines by an entity if:
- the act, practice, or processing relates to personal information about a Philippine citizen or a resident;
- the entity has a link with the Philippines, and the entity is processing personal information in the Philippines, or even if the processing is outside the Philippines as long as it is about Philippine citizens or residents such as, but not limited to, the following:
- a contract is entered in the Philippines;
- a juridical entity is unincorporated in the Philippines but has central management and control in the country; and
- an entity that has a branch, agency, office, or subsidiary in the Philippines and the parent or affiliate of the Philippine entity has access to personal information; and
- the entity has other links in the Philippines such as, but not limited to:
- the entity carries on business in the Philippines; and
- the personal information was collected or held by an entity in the Philippines.
The Act applies to the processing of all types of personal information. On the other hand, the following specified information are not covered by the Act, subject to the extent indicated under the law:
- information processed for purposes of allowing public access to information that falls within matters of public concern;
- personal information processed for journalistic, artistic, or literary purpose, in order to uphold freedom of speech, of expression, or of the press;
- personal information that will be processed for research purpose, intended for a public benefit;
- information necessary to carry out the functions of a public authority;
- information necessary for banks, other financial institutions under the jurisdiction of the Central Bank of the Philippines ('Bangko Sentral ng Pilipinas'), and other bodies authorised by law to the extent necessary to comply with the Republic Act No. 9510 Establishing the Credit Information System and for Other Purposes 2008 and the Republic Act No. 9160 on Anti-Money Laundering 2001 in the Philippines, and other applicable laws; and
- personal information originally collected from residents of foreign jurisdictions in accordance with the laws of those foreign jurisdictions, which is being processed in the Philippines.
In addition, publishers, editors, or duly accredited reporters of any newspaper, magazine, or periodical of general circulation are still bound to follow the Act, but are not compelled to reveal the source of any news report or information appearing in the publication if it was relayed in confidence to them.
3.1. Main regulator for data protection
The NPC is the primary government agency tasked to implement and enforce the Philippines' data privacy laws.
3.2. Main powers, duties and responsibilities
The NPC is composed of three Privacy Commissioners and has the following functions; rulemaking, advisory, public education, compliance, and monitoring, the duty to adjudicate on complaints as well as investigations, enforcement, and other functions as may be necessary to fulfil its mandate under the Act.
4. Key Definitions
Personal data: Refers to all types of personal information, whereas 'personal information' is defined as 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.
- regarding an individual's race, ethnic origin, marital status, age, colour and religious, philosophical or political affiliations;
- regarding an individual's health, education, the genetic or sexual life of a person, or to any proceeding for any offence committed or alleged to have been committed by such individual, the disposal of such proceedings, or the sentence of any court in such proceedings;
- issued by government agencies peculiar to an individual which includes, but is not limited to, social security numbers, previous or current health records, licenses or its denials, suspension or revocation and tax returns; and
- specifically established by an executive order or an act of Congress to be kept classified.
Health data: The Act and its IRR does not specifically define 'Health Information' but classifies such information as sensitive personal information. However, the Health Privacy Code Specifying the Joint A.O. No. 2016-0002 or the Privacy Guidelines for the Implementation of the Philippine Health Information Exchange defines 'Health Information' as personal information and sensitive personal information that relates to an individual's past, present, or future physical or mental health condition, including demographic data, diagnosis, and management, medication history, health financing record, cost of services, and any other information related to an individual's total well-being.
Biometric data: The Act and its IRR do not specifically define 'Biometric Data'. However, the NPC, in Advisory Opinion 2017-63 Personal and Sensitive Information, citing RA 10367, defined biometrics as the quantitative analysis that provides a positive identification of an individual such as voice, photograph, fingerprint, signature, iris, and/or such other identifiable features. Biometric data may be considered both as content of the information about a particular individual as well as an element to establish a link between one piece of information and the individual. Hence, as currently defined, biometric data is considered as personal information since such data may be used to identify a particular individual.
Pseudonymisation: The Act and its IRR do not specifically define 'pseudonymisation'. However, in NPC Advisory Opinion 2020-26, citing Article 4(5) of General Data Protection Regulation (Regulation (EU) 2016/679) ('GDPR'), the NPC defined 'pseudonymisation' as the processing of personal data in a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person.
Privileged information: Refers to any and all forms of data which under the Philippine Rules of Court and other pertinent laws constitute privileged communication (e.g. information between client and lawyer) and is subject to similar rules on lawful processing which are applied to sensitive personal information.
Processing: Refers to any operation or any set of operations performed upon personal information including, but not limited to, the collection, recording, organisation, storage, updating, or modification, retrieval, consultation, use, consolidation, blocking, erasure, or destruction of data.
Data Subject: Refers to an individual whose personal information is processed.
5. Legal Bases
The processing of personal data may be permitted if the data subject has given their consent.
The processing of personal information may be permitted if the processing of personal information is necessary and is related to the fulfilment 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.
The processing of personal information may be permitted if the processing is necessary for compliance with a legal obligation to which the PIC is subject.
The processing of personal data may be permitted if the processing is necessary to protect vitally important interests of the data subject, including life and health.
The processing of personal data may be permitted if the processing is necessary in order to respond to national emergency, to comply with the requirements of public order and safety, or to fulfil functions of public authority which necessarily include the processing of personal data for the fulfilment of its mandate.
The processing of personal information may be permitted if the processing is necessary for the purposes of the legitimate interests pursued by the PIC 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 Constitution.
For legal bases specific to the processing of sensitive data and privileged information, please see Section on special categories of personal data below.
The Act and its IRR provide that a PIC and PIP shall be accountable for complying with the requirements of the Act, IRR, and NPC Issuances. Particularly, a PIC and PIP shall adhere to the general principles of data privacy, implement reasonable and appropriate organisational, physical, and technical security measures for the protection of personal data, and uphold the rights of data subjects. These security measures should ensure the availability, integrity, and confidentiality of the personal data being processed.
In general, a PIC and PIP are mandated to adhere to the general principles of transparency, legitimate purpose, and proportionality. Flowing from these general principles are those which govern the collection, processing, and retention of personal data, such that:
- collection must be for a declared, specified, and legitimate purpose;
- personal data shall be processed fairly and lawfully;
- processing should ensure data quality;
- personal data shall not be retained longer than necessary; and
- any authorised further processing shall have adequate safeguards.
7. Controller and Processor Obligations
The PIC shall be responsible for personal data under its control or custody, as well as personal data outsourced or transferred to a PIP or a third party for processing. Personal data is generally considered under a PIC's control or custody even when the personal data is outsourced or transferred to a PIP or third party, whether domestically or internationally. Accordingly, it shall use contractual or other reasonable means to provide a level of protection to personal data comparable to the Act while personal data is being processed by a PIP or third party. The PIC shall likewise designate an individual or individuals who shall be accountable for compliance with the aforementioned.
Similar to a PIC, the PIP shall uphold the rights of the data subject, and implement adequate organisational, physical, and technical security measures in relation to the personal data it processes.
The PIP processes personal data on behalf of a PIC and only upon the documented instructions of the PIC, therefore it cannot process the personal data for its own purposes or engage another PIP without prior instruction from the PIC. In addition, the PIP has certain obligations to the PIC under the law.
Pursuant to Sections 46 and 47 of the IRR, the PIC and PIP operating in the Philippines shall register their data processing systems, defined as structures and procedures by which personal data is collected and further processed in an information and communications system or relevant filing system with the NPC in the following instances:
- the PIC or PIP employs at least 250 employees;
- the processing includes sensitive personal information of at least 1,000 individuals;
- the processing is likely to pose a risk to the rights and freedoms of data subjects; or
- the processing is not occasional.
Mandatory registration also does not apply to foreign corporations that do not operate or do business in the Philippines and do not process personal data through data processing systems operating in the Philippines (AO 2018-043).
In Circular 17-01, however, registration of data processing systems with the NPC was made mandatory for all government bodies or entities, banks and non-bank financial institutions, telecommunications networks/internet service providers/other entities providing similar services, business process outsourcing companies, schools and training institutions, hospitals, providers of insurance undertakings, direct marketing or networking business/companies providing reward cards and loyalty programs, pharmaceutical companies engaged in research, and PIPs processing personal data for PICs in the above-mentioned areas and data processing systems involving automated decision-making.
In this regard, the NPC has issued a list of specific sectors, industries, and entities in which processing will likely pose a risk to the rights and freedoms of data subjects and/or where processing is not occasional, and therefore require mandatory registration:
- government branches, bodies, or entities;
- banks and financial institutions;
- telecommunication networks, internet service providers, and other entities or organisations providing similar services;
- business process outsourcing companies;
- universities, colleges, and other training institutions;
- insurance providers and brokers;
- direct marketing and networking businesses and companies providing reward cards and loyalty programmes;
- pharmaceutical companies engaged in research; and
- PIPs processing personal data for a PIC included in the preceding items, and data processing systems involving automated decision-making.
The contents of registration shall include (Section 47(a) of the IRR):
- the name and address of the personal information controller or personal information processor, and of its representative, if any, including their contact details;
- the purpose or purposes of the processing, and whether processing is being done under an outsourcing or subcontracting agreement;
- a description of the category or categories of data subjects, and of the data or categories of data relating to them;
- the recipients or categories of recipients to whom the data might be disclosed;
- proposed transfers of personal data outside the Philippines;
- a general description of privacy and security measures for data protection;
- brief description of the data processing system;
- copy of all policies relating to data governance, data privacy, and information security;
- attestation to all certifications attained that are related to information and communications processing; and
- name and contact details of the compliance or data protection officer, which shall immediately be updated in case of changes.
Organisations falling under the registration obligation must do so with the NPC within two months of the commencement of its processing system (Section 7 of Circular 17-01). The notification can be completed through a data protection officer ('DPO'). However, where a data controller or data processor has several DPOs, only one may be authorised to file the notification (Section 8 of Circular 17-01).
Notification of automated processing operations
In addition to the requirement to register data processing systems, a PIC carrying out any wholly or partly automated processing operations that is intended to serve a single purpose or several related purposes must also notify the NPC when the automated processing becomes the sole basis of decision-making about a data subject, and when the decision would significantly affect the data subject (Sections 46(b) and 48 of the Implementing Regulations).
This notification shall include the following information (Section 48(a) of the Implementing Regulations):
- purpose of processing;
- categories of personal data to undergo processing;
- category or categories of data subject;
- consent forms or manner of obtaining consent;
- the recipients or categories of recipients to whom the data are to be disclosed;
- the length of time the data are to be stored;
- methods and logic utilised for automated processing;
- decisions relating to the data subject that would be made on the basis of processed data or that would significantly affect the rights and freedoms of data subject; and
- names and contact details of the compliance or data protection officer.
A data controller or data processor that carries out any automated decision-making operation shall notify the NPC via the mandatory registration process (Section 24 of Circular 17-01).
Upon request by the NPC, a data controller or data processor shall make available additional information and supporting documents pertaining to its automated decision-making operation, including (Section 26 of the Circular):
- consent forms or manner of obtaining consent;
- retention period for the data collected and processed;
- methods and logic utilised for automated processing; and
- possible decisions relating to the data subject based on the processed data, particularly if they would significantly affect his/her rights and freedoms.
Amendments or updates to registered information, including significant changes in the description of the data processing system, must be made within two months from the data such changes take into effect (Section 15 of the Circular).
A data controller or data processor must register through the NPC's official website in two phases (Section 9 of the Circular):
Phase I: a data controller or data processor, through its DPO, shall accomplish the prescribed application form, and submit the same to the NPC together with all supporting documents. Upon review and validation of the submission, the NPC shall provide the data controller or data processor via email an access code, which shall allow it to proceed to Phase II of the registration processes.
Phase II: using the access code, a data controller or data processor shall proceed to the online registration platform and provide all relevant information regarding its data processing systems. The NPC shall notify the PIC or PIP via email to confirm the latter's successful completion of the registration process. Registration may be done in person at the office of the NPC in the event that online access is not available.
The application for registration filed by a data controller or data processor, which is a private entity, must be duly notarised and accompanied by the following documents (Section 10 of the Circular):
- duly notarised Secretary's certificate authorising the appointment or designation of DPO, or any other document that demonstrates the validity of the appointment or designation;
- certified true copy of the following documents, where applicable:
- general information sheet or any similar document;
- certificate of registration (or any similar document); and/or
- franchise, licence to operate, or any similar document.
The NPC announced on, 6 March 2020 that it extended, until 31 August 2020, the validity of the registration of PICs and PIPs to make way for the new automated system launched in July 2020 ('the Extension'). The Extension covered the PICs and PIPs that previously completed at least Phase-I of their NPC registration, while those had not done so were required to register a DPO immediately. In addition, since 1 July 2020, the NPC began accepting applications for renewal of registration using the new system.
For queries, DPOs may call the NPC at (02) 8234-2228 local 118, +639101029114 (Smart), +639652863419 (Globe), or email at mailto:[email protected].
Data transfers to third parties, including transfers to an affiliate or parent company, require the consent of the data subject and, as discussed in section on data subject rights, the execution of a data sharing agreement or use of a contract or other reasonable means to provide a comparable level of protection while the personal data is being processed by the third party.
On the other hand, outsourcing or subcontracting generally does not require the consent of the data subject but requires the execution of an outsourcing or subcontracting agreement. In an outsourcing or subcontracting agreement, the PIC shall use contractual or other reasonable means to ensure that proper safeguards are in place, to ensure the confidentiality, integrity, and availability of the personal data processed, prevent its use for unauthorised purposes, and generally, comply with the requirements of the Act, the IRR, other applicable laws for processing of personal data and other issuances of the NPC.
The transfer of personal data to foreign countries is generally permitted, subject to the relevant provisions of the Act, the IRR and other NPC issuances.
With respect to the private sector, there are currently no data localisation requirements in the Philippines specifically governing personal data, subject to the applicable provisions of the Philippines data privacy laws including, among others, the need for consent of the data subject (as may be necessary) and data transfer requirements.
The IRR states that any natural or juridical person or other body involved in the processing of personal data shall maintain records that sufficiently describe its data processing system, and identify the duties and responsibilities of those individuals who will have access to personal data.
The requirement for the conduct of a Privacy Impact Assessment ('PIA') stems from the duty of the PIC to implement reasonable and appropriate measures intended for the protection of personal data against any accidental or unlawful destruction, alteration, and disclosure, as well as against any other unlawful processing. In determining the appropriate level of security, the PIC must take into account the nature of the personal information to be protected, the risks represented by the processing, the size of the organisation, and complexity of its operations, current data privacy best practices, and the cost of security implementation.
A PIC may require a PIP to conduct a PIA. A PIA should generally be undertaken for every processing system of a PIC or PIP involving personal data. Nonetheless, the PIC or PIP may forego the conduct of a PIA but only if it determines that the processing involves minimal risks to the rights and freedoms of individuals, taking into account recommendations from the data protection officer ('DPO').
The NPC recommends that a PIA is undertaken as part of any organisation's security incident management policy (Section 6 of the Circular 16-03). In general, this applies to every processing system that involves personal data (Advisory 17-03). Further, the recommendation of a PIA is applicable to both PICs and PIPs who are primarily accountable for the conduct of the same.A recommendation for the conduct of a PIA may also come from the data protection officer ('DPO') of the PIC or PIP (Advisory 17-03)
In addition, a PIA should be conducted for both new and existing systems, programs, projects, procedures, measures, or technology products that involve or impact processing personal data. Whereas for new processing systems, a PIA should be conducted prior to their adoption, use, or implementation. Changes in the governing law or regulations, or those adopted within the organisation or its industry may likewise require conducting a PIA, particularly if such changes affect personal data processing (Advisory 17-03).
There is no prescribed standard or format for a PIA. As such, the PIC or PIP may determine the structure and form of the PIA that it will use. It is not precluded from utilising any existing methodology, provided such methodology is acceptable based on the following criteria: t is not precluded from utilising any existing methodology, provided such methodology is acceptable based on the following criteria (pages 6 and 7 of the Guidelines):
- it provides a systematic description of the personal data flow and processing activities of the PIC or PIP, including:
- purpose of the processing, including, where applicable, the legitimate interest pursued by the PIC or PIP;
- data inventory identifying the types of personal data held by the PIC or PIP;
- sources of personal data and procedures for collection;
- functional description of personal data processing, including a list of all information repositories holding personal data and their location, and types of media used for storage;
- transfers of personal data to another agency, company, or organisation, including transfers outside the country, if any;
- storage and disposal method of personal data;
- accountable and responsible persons involved in the processing of personal data; and
- existing organisational, physical, and technical security measures; and
- it includes an assessment of the adherence by the PIC or PIP to the data privacy principles, the implementation of security measures, and the provision of mechanisms for the exercise by data subjects of their rights under the Act;
- it identifies and evaluates the risks posed by a data processing system to the rights and freedoms of affected data subjects, and proposes measures that address them:
- risk identification: risks include natural dangers such as accidental loss or destruction, and human dangers such as unlawful access, fraudulent misuse, unlawful destruction, alteration, and contamination;
- risks evaluation based on impact and likelihood: the severity or extent of the impact of a breach or privacy violation on the rights and freedoms of data subjects must be determined. The probability of the risk happening and the sources of such risk should also be taken into consideration; and
- remedial measures: based on an assessment of risks, measures should be proposed on how to address and manage the said risks; and
- it is an inclusive process, in that it ensures the involvement of interested parties and secures inputs from the DPO and data subjects.
The PIC or PIP may forego the conduct of a PIA only if it determines that the processing involves minimal risks to the rights and freedoms of individuals, taking into account recommendations from the DPO. In making this determination, the PIC or PIP should consider the size and sensitivity of the personal data being processed, the duration and extent of processing, the likely impact of the processing to the life of the data subject, and possible harm in case of a personal data breach (Advisory 17-03).
Documentation and procedurs for review
Notably, a PIA requires documentation and procedures for review. Its results should be contained in a corresponding report. The PIC or PIP must maintain a record of all its PIA reports. When a report contains information that is privileged or confidential, the PIC or PIP may prepare a PIA Summary that can be made available to data subjects upon request. Other means of communicating the results of the PIA to internal and external stakeholders should be considered, such as publishing key findings or result summaries on the PIC or PIP website, through newsletters, annual reports, and other similar materials (Advisory 17-03).
In regard to conducting a DPIA, the Guidelines provide guidance on how to plan a PIA (pages 7 to 8 of the Guidelines) and the preparatory activities that should be considered leading up to a PIA (pages 8 to 9 of the Guidelines).
Furthermore, the PIA Guide details each of the following steps:
- project/system description;
- threshold analysis;
- stakeholder engagement;
- personal data flows;
- impact analysis; and
- risk management.
The IRR states that any natural or juridical person involved in the processing of personal data must designate an individual(s) who shall function as a DPO and whose role includes ensuring compliance with the applicable laws and regulations for the protection of data privacy and security. In addition, to designating an individual or individuals who are accountable for the organisation’s compliance with the Act, the controller must also inform data subjects of their identity upon request.
Furthermore, pursuant to Section 26(a) of the IRR, both controllers and processors are obligated to appoint an individual or individuals to function as DPOs or 'compliance officers' who will be accountable for ensuring compliance with the relevant privacy and data protection laws and regulations.
NPC advisory guidance
In certain circumstances, an organisation may appoint a 'Compliance Officer for Privacy' ('COP') in addition to a DPO. A COP is defined in Advisory 2017-01 as someone who performs some of the functions of a DPO. An organisation in the private sector may appoint a COP where it has branches, sub-offices or any other component units, in which case a COP may be appointed for each component unit (Advisory 2017-01).
Furthermore, for the purpose of determining compliance, each natural or juridical person engaged in the processing of personal data, whether as a controller or processor, is considered a separate entity. This would require each entity to designate a separate and distinct DPO, regardless of their relationship under corporation law. However, requests to designate a common DPO for a group of related companies can be made to the NPC. Various factors will be taken into account, such as the capacity of the DPO, the complexity of the processing operations involved, and the volume of personal data being processes (Advisory 2017-013).
In particular, controllers and processors are advised to comply with the following guidelines (Advisory 2017-01):
- the DPO or COP should be a full-time or organic employee and ideally retain a regular or permanent position;
- where the employment of the DPO or COP is based on a contract, the term or duration thereof should at least be two years to ensure stability;
- the DPO or COP should act independently in the performance of their functions and enjoy a sufficient degree of autonomy;
- the DPO or COP should not receive direct instructions from the controller or processor regarding the exercise of their tasks; and
- the DPO or COP may perform other tasks or functions or may already hold a position within the organisation, provided that such tasks or functions do not give rise to any conflict of interest.
Finally, there is no explicit prohibition on outsourcing or subcontracting the functions of the DPO or COP. However, the NPC's prescription that a DPO or COP should be a full-time or organic employee of the organisation is premised on the important principle that the DPO or COP is expected to fulfil certain functions vis-à-vis the organisation. The fact that the DPO or COP is not an employee therefore does not allow to the organisation to deny accountability where the DPO or COP fails to comply with the relevant privacy and data protection laws and regulations (Advisory 2017-019).
As an exception and subject to the approval of the NPC, a group of related companies may, instead of appointing individual DPOs, appoint or designate the DPO of one of its members to be primarily accountable for ensuring the compliance of the entire group with all data protection policies; however, the individual members of the group shall instead appoint a Compliance Officer for Privacy ('COP'), which refers to an individual(s) who will perform some of the functions of a DPO. Private entities with branches, sub-offices, and other components units may also appoint or designate a COP for each component unit.
Contact details of the DPO
- title or designation;
- postal address;
- a dedicated telephone number; and
- a dedicated email address.
The role and professional qualifications
A DPO's duties and responsibilities include (Advisory 2017-01):
- monitoring the controller or processor's compliance with the Act, the IRRs, issuances by the NPC, and other applicable laws and policies. For this purpose, the DPO may:
- collect information, and maintain a record of, regarding processing operations, activities, measures, projects, programmes, or systems;
- analyse and check the compliance of processing activities, including the issuance of security clearances to, and compliance by, third party service providers;
- inform, advise, and issue recommendations to the controller or processor;
- ascertain and renew the accreditations or certifications necessary to maintain the required standards in personal data processing; and
- advise the controller or processor regarding the necessity of executing a data sharing agreement with third parties and ensure its compliance with the law;
- ensuring the conduct of PIA in relation to the identified activities, measures, projects, programmes, or systems;
- advising the controller or processor regarding complaints as well as the exercise of data subject rights;
- ensuring proper data breach and security incident management by the controller or processor, including ensuring the preparation and submission of reports and other documentation to the NPC within the prescribed period;
- informing and cultivating awareness on privacy and data protection within the organisation, including all relevant laws, rules, and regulations and issuances of the NPC;
- advocating for the development, review, and/or revision of policies, guidelines, projects, and/or programmes of the controller or processor relating to privacy and data protection by adopting a Privacy by Design approach;
- serving as the point of contact for data subjects, the NPC, and other authorities in all matters concerning data privacy or security issues or concerns as well as the controller or processor;
- cooperating, coordinating, and seeking advice of the NPC regarding matters concerning data privacy and security; and
- performing other duties and tasks that may be assigned by the controller or processor that will further the interest of data privacy and security and uphold the rights of the data subjects.
As for the functions of a CPO, Advisory 2017-01 stipulates that the CPO will undertake all of the above duties, except for monitoring the controller or processor's compliance, ensuring the conduct of PIAs, and advising on complaints and data subject rights.
In regard to professional qualifications, Advisory 2017-01, DPOs should possess specialised knowledge and demonstrate reliability necessary for their duties. This includes having expertise in relevant privacy or data protection policies and practices as well as possessing a sufficient understanding of the processing operations being carried out by the controller or processor, including information systems, data security, and/or data protection needs. Knowledge of the sector or field of the entity, and the organisation's internal structure, policies, and processes is also considered useful. Furthermore, in relation to COPs, the minimum qualifications required should be proportionate to their functions.
Obligations of the data controller and data processor
In relation to the DPO or COP, the data controller and data processor should (Advisory 17-01):
- effectively communicate to its personnel, the designation of the DPO or COP and their functions;
- allow the DPO or COP to be involved from the earliest stage possible in all issues relating to privacy and data protection;
- provide sufficient time and resources (e.g. financial, infrastructure, equipment, training, and staff) necessary for the DPO or COP to keep updated with the developments in data privacy and security and to carry out their tasks effectively and efficiently;
- grant the DPO or COP appropriate access to the personal data it is processing, including the processing systems;
- where applicable, invite the DPO or COP to participate in meetings of senior and middle management to represent the interest of privacy and data protection;
- promptly consult the DPO or COP in the event of a personal data breach or security incident; and
- ensure that the DPO or COP is made a part of all relevant working groups that deal with personal data processing activities conducted inside the organisation or with other organisations.
However, in the interest of ensuring autonomy and independency, a data controller or processor should not directly or indirectly penalise or dismiss the DPO or COP for performing their tasks. This includes even the mere threat of penalty as this may have the effect of impeding or preventing the DPO or COP from performing their tasks. However, nothing shall preclude the legitimate application of labour, administrative, civil or criminal laws against the DPO or COP, based on just or authorised grounds (Advisory 17-01).
A PIC must notify the NPC and the affected data subjects upon knowledge that a personal data breach requiring notification has occurred.
The following conditions determine when a personal data breach requires notification:
- the personal data involves sensitive personal information or any other information that may be used to enable identity fraud;
- there is reason to believe that the information may have been acquired by an unauthorised person; and
- the PIC or the NPC believes that the unauthorised acquisition is likely to give rise to a real risk of serious harm to any affected data subject.
Furthermore, the notification shall be subject to the following procedures:
- the PIC is generally required to notify the NPC and the affected data subject(s), within 72 hours from the knowledge of, or when there is reasonable belief by the PIC or PIP that, a personal data breach requiring notification has occurred;
- the notification shall describe, among others, the nature of the breach, the personal data likely to have been involved, and measures taken by the entity to address the breach; and
- the notification shall be submitted to the NPC through written or electronic form, and shall include, among others, the name and contact details of the DPO and a designated representative of the PIC.
Annual Security Incident Reportorial Requirement
To ensure compliance with data privacy laws and to strengthen the monitoring of threats and vulnerabilities that may affect personal data protection, the NPC requires PICs and PIPs to submit an annual report summarising all security incidents and personal data breaches. The annual report should contain all security incidents and personal data breaches of a PIC and PIP from 1 January to 31 December of the preceding year. In addition, it should include a summary of every breach incident and the aggregate number of non-breach incidents.
Personal data shall not be retained in perpetuity in contemplation of a possible future use yet to be determined. Retention of personal data shall only be for as long as necessary:
- for the fulfilment of the declared, specified, and legitimate purpose, or when processing for the purpose has been terminated;
- for the establishment, exercise, or defence of legal claims; or
- for legitimate business purposes, which must be consistent with standards followed by the applicable industry or approved by the appropriate government agency.
Nonetheless, retention of personal data shall be allowed in cases provided by law.
The NPC has stated that children merit specific protection with regard to their personal data, as they may be less aware of the risks, consequences, and safeguards concerned and their rights in relation to the processing of personal data. In NPC Advisory Opinion No. 2017-49: Teachers right to search a minor students cellular phone and NPC Advisory Opinion No. 2019-46: Inter-agency council against trafficking (IACAT) request for information with the Philippine Statistics Authority (PSA), the NPC explained that a minor cannot validly provide the consent needed under the Act. Hence, before the personal data of minors may be lawfully processed, the consent of their parents or legal guardians should first be obtained. Absent such consent, the processing of a minor's personal data must have a lawful basis under existing laws, rules, or regulations.
The processing of sensitive data and privileged information shall be prohibited, except in the following cases:
- the data subject has given their 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;
- 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, and 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;
- 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 their consent prior to the processing;
- the processing is necessary to achieve the lawful and non-commercial objectives of public organisations and their associations provided that such processing is only confined and related to the bona fide members of these organisations or their associations, provided further, that the sensitive personal information are not transferred to third parties, and provided finally, that consent of the data subject was obtained prior to processing;
- 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 data is ensured; or
- 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 defence of legal claims, or when provided to government or public authority.
Agreements for the processing of personal data may be in the form of data sharing arrangements, outsourcing, or subcontracting arrangements.
Data sharing refers to disclosures or transfers of personal data by PICs or PIPs to third parties. If such disclosure is made by a PIP, such must have been upon the instruction of the PIC concerned. In contrast, outsourcing or subcontracting refers to disclosures or transfers of personal data by PICs to PIPs, in order for the latter to process the data according to the instructions of the PICs.
Data sharing may be covered by a data sharing agreement or a similar document containing the terms and conditions of the sharing arrangement. Data sharing for commercial purposes must be covered by a data sharing agreement, which shall establish adequate safeguards for data privacy and security in order to uphold the rights of data subjects. Outsourcing or subcontracting arrangements must likewise be governed by a contract or other legal act that binds the PIP to the PIC, and must set out, among others, the subject matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects, the obligations and rights of the PIP, and the geographic location of the processing under the subcontracting agreement.
8. Data Subject Rights
The right to be informed when personal data pertaining to them is being processed.
The right to reasonably access matters relating to the processing of their personal data such as, among others, the identity of the PICs or PIPs that will be given access to their personal data.
The right to rectification or the right to dispute the inaccuracy or error in their personal data and have the PIC correct it within a reasonable period of time.
The right to suspend, withdraw, or order the blocking, removal, or destruction of their personal data from the PIC's filing system.
The right to object to the processing of their personal data, including processing for direct marketing, automated processing, or profiling.
The right to obtain from the PIC a copy of their personal data in an electronic or structured format that is commonly used and allows for further use by the data subject.
The right to object to the processing of their personal data, includes automated processing.
The right to be indemnified for damages sustained due to inaccurate, incomplete, outdated, false, unlawfully obtained, or unauthorised use of personal data. In addition, individuals have the right to lodge a complaint before the NPC.
Any natural or juridical person, or other body involved in the processing of personal data who fails to comply with the Act, the IRR, or other issuances of the NPC and found to have committed a violation of the Act and its IRR may be subject to administrative, civil, and criminal liabilities.
The penalties provided in the Act and its IRR range from six months to seven years of imprisonment, together with fines ranging from PHP 100,000 (approx. €1,700) to PHP 5 million (approx. €87,100) based on whether personal information or sensitive personal information is involved. Moreover, additional penalties may apply depending on the identity of the offender and the number of affected data subjects.
If the offender is a corporation, partnership, or any other juridical person, the penalty shall be imposed upon the responsible officers who participated in, or by their gross negligence, allowed the commission of the crime. If the offender is an alien, he or she shall be deported without further proceedings after serving the penalties prescribed.
Pursuant to its authority to compel any entity to abide by its orders on a matter of data privacy, the NPC has issued decisions, resolutions, and orders to various entities, which are published on its website. We discuss below some of these enforcement decisions.
The NPC has issued decisions on complaints of privacy violations, directing or advising the concerned PIC to:
- revise its daily time record system and PIA to reflect and address compliance gaps brought about by actual, current practices and as identified in the letter-complaint (NPC CID Case No. 17-K-003);
- submit the designation of DPO/ CPO, a copy of its Security Incident Management Policy, including documents demonstrating the creation of its Breach Response Team as well as the dissemination of the Security Incident Management Policy, and the complete Post-Breach Report on the management of a Personal Data Breach (NPC CID Case No. 17-002);
- act on a request for correction of a data subject's account, which had not been addressed, and provide assistance to the affected data subject to ensure that he is able to exercise his rights in accordance with the law (CID No. 17-K-004);
- furnish, among others, proof of its on-boarding a data privacy consultant, proof of registration with the NPC, a copy of its Data Privacy Manuals and Privacy Notice; proof of its conduct of data privacy awareness and trainings for its employees (NPC 18-103);
- submit a complete report on the measures it has undertaken or will undertake to address the issue of delayed response to their customers' request in relation to their rights as data subjects (CID 17-K-004);
- furnish the complainant with the name of the recipient of her personal information in compliance with Section 16(c)(3) of the Act, and pay nominal damages for violation of the complainant's right to access (NPC 19-653); and
- pay nominal damages for failure to fulfil its obligation as a PIC to ensure that the information of the data subject is kept up to date, resulting in the processing of inaccurate information (NPC 21-086).
The NPC has issued resolutions confirming or advising that:
- PICs and PIPs that practice larger-scale and higher-risk type of processing are expected to provide data subjects with clear, concise, intelligible, and easy to understand information to guide and provide the data subjects with a clear picture and genuine choice about their use of their personal data to comply with the principle of transparency (NPC Case No. 17-001);
- the on-site examination in the Rules of Procedure of the NPC is not mandatory, and is discretionary to the investigating officer (NPC Case No. 17-003); and
- the technical security measures employed by a PIC telecommunication company are sufficient to prevent, correct, and mitigate security incidents that can lead to a personal data breach; however, it should hold its personnel accountable when there is delay on the deactivation and replacement of SIM cards to ensure strict compliance with its privacy policies and procedures and prevent similar incidents in the future (NPC Case No. 17-K-001).
The NPC has issued orders directing the concerned PIC to:
- notify all data subjects of an unauthorised online publication of the PIC's website database and to explain why further action should not be taken against the PIC for failure to notify the data subjects of the occurrence of a data breach within the required 72-hour period (Commission-Issued Order CIDBN No. 18-058 on Wendy’s Restaurant, Inc (PRO) Data Breach);
- suspend the PIC's food delivery website and to submit a security plan to address data privacy concerns discovered during a vulnerability assessment conducted by the NPC (Commission-Issued Order CIDBN No. 17-043 on Jollibee Foods Corporation);
- submit a comprehensive data breach notification report and to notify affected data subjects, in accordance with Circular 16-03, and to establish a help desk for Filipino users on data privacy matters (Commission-Issued Order CIDBN No. 18-J-162 on Facebook Forced Logout);
- cease and desist from implementing the PIC's pilot test and plans to roll out three new data processing systems because of deficiencies in the systems’ risk assessment and mitigation, insufficient PIA and privacy notice, and the unclear purpose behind the data processing (NPC CC 20-001 In re: Grab Philippines);
- cease and desist from the processing of personal data in its possession until the NPC issues a decision on its comment (In Re: Lisensya.info); and
- cease and desist from the processing of personal data in its database until the NPC issues a decision on its comment (Commission-Issued CID-CDO-21-003 on PiliPinas2022.ph).