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Philippines - Data Protection Overview
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Philippines - Data Protection Overview

October 2021

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. 

1.1. Key acts, regulations, directives, bills

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. 

1.2. Guidelines

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: 

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, there has not been a published case by the Supreme Court of the Philippines specifically on the Act and its IRR.  

2. Scope of Application

2.1. Personal scope

The Act applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing.  

2.2. Territorial scope

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. 

2.3. Material scope

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 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. Data Protection Authority | Regulatory Authority

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

Data controller: PIC refers to a natural or juridical person or any other body who controls the processing of personal data or instructs another to process personal data on its behalf. 

Data processor: PIP refers to any natural or juridical person or any other body to whom a PIC may outsource or instruct the processing of personal data pertaining to a data subject. 

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. 

Sensitive data: Referred to as sensitive personal information under the Act, refers to personal information: 

  • 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

5.1. Consent

The processing of personal data may be permitted if the data subject has given his or her consent. 

5.2. Contract with the data subject

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. 

5.3. Legal obligations

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. 

5.4. Interests of the data 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. 

5.5. Public interest

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. 

5.6. Legitimate interests of the data controller

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 of the Republic of the Philippines

5.7. Legal bases in other instances

For legal bases specific to the processing of sensitive data and privileged information, please see Section on special categories of personal data below. 

6. Principles

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

Data controller  

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.  

Processor  

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. 

7.1. Data processing notification

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. 

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. 

7.2. Data transfers

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. 

Data localisation 

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. 

7.3. Data processing records

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. 

7.4. Data protection impact assessment

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'). 

7.5. Data protection officer appointment

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. 

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. 

The DPO should: 

  • have expertise in relevant privacy or data protection policies and practices; 
  • have sufficient understanding of the processing operations being carried out by the PIC or PIP, including its information systems, data security, and/or data protection needs; and 
  • be a full-time or organic employee of the PIC or PIP.  

7.6. Data breach notification

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. 

7.7. Data retention

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. 

7.8. Children's data

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 his or her 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. 

7.9. Special categories of personal data

The processing of sensitive data and privileged information shall be prohibited, except in the following cases: 

  • 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; 
  • 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 his or her 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. 

7.10. Controller and processor contracts

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

8.1. Right to be informed

The right to be informed when personal data pertaining to him or her is being processed. 

8.2. Right to access

The right to reasonably access matters relating to the processing of his or her personal data such as, among others, the identity of the PICs or PIPs that will be given access to his or her personal data. 

8.3. Right to rectification

The right to rectification or the right to dispute the inaccuracy or error in his or her personal data and have the PIC correct it within a reasonable period of time. 

8.4. Right to erasure

The right to suspend, withdraw, or order the blocking, removal, or destruction of his or her personal data from the PIC's filing system. 

8.5. Right to object/opt-out

The right to object to the processing of his or her personal data, including processing for direct marketing, automated processing, or profiling. 

8.6. Right to data portability

The right to obtain from the PIC a copy of his or her personal data in an electronic or structured format that is commonly used and allows for further use by the data subject. 

8.7. Right not to be subject to automated decision-making

The right to object to the processing of his or her personal data, includes automated processing. 

8.8. Other rights

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 the right to lodge a complaint before the NPC. 

9. Penalties

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. 

9.1 Enforcement decisions

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. 

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 privacy impact assessment 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 data protection officers/compliance officers, 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); and 
  • 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). 

Resolutions  

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). 

Orders 

The NPC has issued orders directing the concerned PIC to: