Know Your
Data Privacy Rights

Under RA10173, people whose personal information is collected, stored, and processed are called data subjects. Organizations who deal with your personal details, whereabouts, and preferences are dutybound to observe and respect your data privacy rights.

If you feel that your personal data has been misused, maliciously disclosed, or improperly disposed, or if any of the rights discussed here have been violated, the data subject has a right to file a complaint with us.



The right to be informed

Under R.A. 10173, your personal data is treated almost literally in the same way as your own personal property. Thus, it should never be collected, processed and stored by any organization without your explicit consent, unless otherwise provided by law. Information controllers usually solicit your consent through a privacy notice. Aside from protecting you against unfair means of personal data collection, this right also requires personal information controllers (PICs) to notify you if your data have been compromised, in a timely manner.

As a data subject, you have the right to be informed that your personal data will be, are being, or were, collected and processed.

The Right to be Informed is a most basic right as it empowers you as a data subject to consider other actions to protect your data privacy and assert your other privacy rights.





Example:

A medical doctor in a private hospital in Manila recorded a conversation with his lady patient without the patient’s knowledge and prior consent. Upon realizing what was happening, the patient immediately confronted the doctor and expressed her strong dismay, pointing out the physician’s lack of professionalism in recognizing his personal right to privacy. She said she could have given her consent anyway if only she was asked politely. The doctor apologized and explained that his action was just meant to aid his recall, especially when he later examined the case, saying he just wanted to provide the best possible service, which the patient deserves. The patient, however, demanded the doctor to delete the recorded conversation and canceled on the medical consultation. She said if the doctor does not even know the basic courtesy of asking for consent, then how can he expect to win the patients’ confidence in his competence as a medical practitioner.





Take note of this:

To protect your privacy, the Philippine data privacy law explicitly require organizations to notify and furnish you the following information before they enter your personal data into any processing system (or at the next practical opportunity at least):

  • Description of the personal data to be entered into the system
  • Exact Purposes for which they will be processed (such as for direct marketing, statistical, scientific etc.)
  • Basis for processing, especially when it is not based on your consent
  • Scope and method of the personal data processing
  • Recipients, to whom your data may be disclosed
  • Methods used for automated access by the recipient, and its expected consequences for you as a data subject
  • Identity and contact details of the personal information controller
  • The duration for which your data will be kept
  • You also have to be informed of the existence of your rights as a data subject.




Additional notes:

In recording a conversation or interview with someone, it is enough to verbally ask for a direct consent from an individual data subject. If the subject yields, it would be useful to also mention as part of the recorded conversation that the subject knows the conversation is being recorded and that you asked and were given the consent. It would even be better if you could get the subject to verbally confirm his consent.

Banks involved in phone banking tell their callers that the conversation with their call center agent would be recorded, and that proceeding with the call is indication of their consent. This practice is considered sufficient notice.

Websites resort to publishing a Privacy Notice page, which essentially accomplishes the same thing. Similar privacy notices should be made in public establishments equipped with security CCTVs.

Whenever anyone is making an audio or video recording of you, or even just taking your pictures, you have a right to know, and you must always be given the chance to opt out when you don’t feel comfortable.

A salesman may be collecting detailed personal data about you and your family without your permission, under the pretext of targeting you as a prospective customer to tailor-fit their offerings to your individual needs. This, by itself, may be potentially beneficial to you. But since your personal privacy and safety becomes potentially at risk, you have a right to be informed if you are being individually targeted in a sales campaign like this.




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The right to access

This is your right to find out whether an organization holds any personal data about you and if so, gain “reasonable access” to them. Through this right, you may also ask them to provide you with a written description of the kind of information they have about you as well as their purpose/s for holding them.

Under the Data Privacy Act of 2012, you have a right to obtain from an organization a copy of any information relating to you that they have on their computer database and/or manual filing system. It should be provided in an easy-to-access format, accompanied with a full explanation executed in plain language.

You may demand to access the following:

  • The contents of your personal data that were processed.
  • The sources from which they were obtained.
  • Names and addresses of the recipients of your data.
  • Manner by which they were processed.
  • Reasons for disclosure to recipients, if there were any.
  • Information on automated systems where your data is or may be available, and how it may affect you.
  • Date when your data was last accessed and modified
  • The identity and address of the personal information controller.





Example:

An individual had been involved in an incident inside and outside a Manila restaurant where his wallet was stolen. He also suffered minor injuries in the incident. He requested access to the restaurant CCTV footage relating to himself, saying he wants to see all details surrounding the incident and possibly figure out a way to recover his wallet. He tried to personally speak to the manager but was referred to the security guard. After a few days of following up on his request, he was finally informed that the establishment would not provide him any data. This infuriated him and, upon going back to the restaurant, he demanded his right to view the footage or else he would create a scene. He was told that, as per their security policy, no “outsider” is allowed to enter areas in their establishment designated only as “for employees only”. As a compromise, the manager said they will give him a record of the footage using the customer’s handheld gadget.





How to exercise your right to access your personal data

You must execute a written request to the organization, addressed to its Data Protection Officer (DPO). In the letter, mention that your request is being made in exercise of your right to access under the Data Privacy Act of 2012. The DPO is required to respond to your written request. Be prepared to provide evidence of your identity, which the DPO should require of you to make sure that personal information is not given to the wrong person.

If your request was not granted, or if you feel your request was not sufficiently addressed, you may file a formal complaint with the NPC. Before doing so, however, we recommend that you inform the organization and its DPO of your intention to formally complain to the NPC. They might be able to the opportunity to apologize, better explain their position, or reconsider your request.





Additional notes:

Some exceptions may disallow the exercise of an individual’s right to access. This is to balance the right to privacy of an individual versus the needs of civil society. Here are some examples:

  • A criminal suspect is not allowed access to the personal data held about him by law enforcement agencies as it may impede investigation.
  • You are not allowed access to information about you as contained in communications between a lawyer and his or her client, if such communication is subject to legal privilege in court.
  • Your right to access your own medical and psychological data may be denied you in the rare instance where is is deemed that your health and well-being might be negatively affected.



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The right to object

Your consent is necessary before any organization can LAWFULLY collect and process your personal data. If without your consent, any such collection and processing of personal information by any organization can be contested as unlawful or ILLEGAL, and would therefore be answerable to the Data Privacy Act of 2012.

In case you already gave your consent by agreeing to an organization’s privacy notice, you can withdraw consent if the personal information processor decided to amend said notice. In fact, the personal information processor has the obligation to notify you of changes to their privacy notice and must explicitly solicit your consent once again.





Example

The right to object is most specifically applicable when organizations or personal information controllers are processing your data without your consent for the following purposes:

  • Direct marketing purposes. When business organizations give you sales materials about products and services, they must explicitly inform or remind you of your right to object. If you feel uncomfortable to being target of a direct marketing campaign, you must be able to easily invoke your right to object. If you previously acceded but wishes to opt-out, you must be given an easy way to opt-out. In asserting your right to object being included in a direct marketing campaign, businesses have no recourse but to accede as there are no exemptions or grounds for refusal in this case.
  • Profiling purposes. Businesses customarily resort to profiling, or the creation of profiles of individual customers and clients without their consent. This is done either for marketing or customer care purposes. The cross-referencing of customer information to product marketing brings about practical advantages to both the buyer and seller in any potential business transaction. Under RA 10173, however, profiling of this requires your consent as customer, or else you are justified in invoking your right to object. The right of state agents to do profiling for law enforcement purposes, however, may override your right to object.
  • Automated processing purposes. In technology-driven industries, such as banking and finance, many decisions affecting individuals are arrived at electronically via automatic data processing systems based on personal information stored in computerized data files. This reduces the business transaction process down to a few seconds and facilitates a speedy exchange of economic value. Potentially, however, it may also inadvertently arrive at decisions prejudicial to your interests and lead to the weakening of your position as a transacting party. As such, organizations are required to notify you whether your personal data will undergo automatic processing, and inform you that you have a right to object.




How to exercise your right to object

Whenever you have the chance, you may assert your right to object verbally, be it in person or via a phone call. To have it formally documented, however, you must execute a written request to the organization, addressed to its Data Protection Officer (DPO), and have it received. In the letter, mention that your request is being made in exercise of your right to object under the Data Privacy Act of 2012. The DPO must act on your written request. In case you feel your request have not been addressed satisfactorily, you may file a formal complaint before the NPC, attached therewith your request letter to the DPO.

Additional Notes

Personal data collectors, collectors and processors must stop processing your data when you assert your right to object unless they can cite legitimate grounds for overriding it such as the following:

  • When the personal data is needed in pursuant to a subpoena.
  • When the collection and processing are for obvious purposes — such as in contracts where you are a party.
  • And when the information being collected and processed is due to a legal obligation on the part of the Personal Information Controller (such as for employment records purposes).



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The right to erasure or blocking

Under the law, you have the right to suspend, withdraw or order the blocking, removal or destruction of your personal data. You can exercise this right upon discovery and substantial proof of the following:

  1. Your personal data is incomplete, outdated, false, or unlawfully obtained.
  2. It is being used for purposes you did not authorize.
  3. The data is no longer necessary for the purposes for which they were collected.
  4. You decided to withdraw consent, or you object to its processing and there is no overriding legal ground for its processing.
  5. The data concerns information prejudicial to the data subject — unless justified by freedom of speech, of expression, or of the press; or otherwise authorized (by court of law)
  6. The processing is unlawful.
  7. The personal information controller, or the personal information processor, violated your rights as data subject.




Example

In several cases, the need to balance this right with the freedom of expression and public interest has been highlighted as follows:

  • Melvin v. Reid (as published in http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1429&context=bjil)

    “In Melvin v. Reid, 34 decided in 1931, for example, a homemaker, who had once worked as a prostitute and who had been wrongly accused of murder, became the subject of a feature film (“The Red Kimono”) seven years after her acquittal, based on the facts of her trial. Although not specifically referencing a right to be forgotten, the court, permitting suit against the film-maker, noted: “One of the major objectives of society as it is now constituted, and of the administration of our penal system, is the rehabilitation of the fallen and the reformation of the criminal.” The court held that the unnecessary use of the plaintiff’s real name inhibited her right to obtain rehabilitation.”

  • Sidis v. F-R Publishing Corp. (http://communication.oxfordre.com/view/10.1093/acrefore/9780190228613.001.0001/acrefore-9780190228613-e-189?rskey=Mr5AR5&result=1)

    “Newsworthiness, or public interest, generally trumps privacy in the United States. This fact was recognized as early as 1890, by Samuel Warren and Louis Brandeis in their famous Harvard Law Review article, “The Right to Privacy.” The principle was further reinforced in 1940, when the U.S. Court of Appeals for the Second Circuit held that former child prodigy William James Sidis, who had made great efforts to become a private citizen again after having received extensive news coverage as a young boy, could not prevail in a privacy action against a magazine that featured him in a “Where Are They Now?” section. The court held that the public retained a legitimate interest in knowing whether Sidis had lived up to the intellectual promise of his youth.”

  • Karnataka High Court Judgement (http://lexinsider.com/a-high-court-gives-life-to-the-right-to-be-forgotten-right/)

    “…the High Court of Karnataka after passing of the order on a criminal matter which was relating to a complaint given by the Petitioner’s daughter and filing a case in the High Court that her marriage never happened with defendant. The petition was to annul the marriage certificate and later the case was quashed on comprise between the parties. In the same case Petitioner’s daughter name was requested to be removed from the digital records of the High Court and also from search engines including Google as it affected her relationship with her husband and her reputation as well.The High Court ordered, “It should be the endeavor of the Registry to ensure that any internet search made in the public domain ought not to reflect the petitioner’s daughter’s name in the cause-title of the order or in the body of the order in the criminal petition.”, giving life to this right. However, the name of the petitioner’s daughter would certainly be reflected in the order copy was made clear.”





How to exercise your right to erasure (or blocking)

Execute a written request to the organization, addressed to its Data Protection Officer (DPO), and have it received. In the letter, mention that your request is being made in exercise of your right to erasure under the Data Privacy Act of 2012. Documents to support your request must be attached. The DPO must act on your written request. In case you feel your request have not been addressed satisfactorily, you may file a formal complaint before the NPC, attached therewith your request letter to the DPO.




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The right to damages

You may claim compensation if you suffered damages due to inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use of personal data, considering any violation of your rights and freedoms as data subject.





Example

This example is from the United Kingdom, as published at: http://www.nabarro.com/insight/briefings/2017/february/assessing-damages-for-data-protection-and-data-privacy/

“In October 2013, the Home Office published quarterly statistics about the family returns process by which applicants who have children but who have no right to remain in the UK are returned to their country of origin.

The Home Office uploaded anonymised statistics, but they also mistakenly uploaded a spreadsheet of raw data on which those statistics were based. This spreadsheet contained personal data and private information of approximately 1,600 individuals, including their names, ages, nationality, the fact of an asylum claim, the regional office which dealt with their case and their immigration removal status.

This data remained online for nearly two weeks before it was removed but during that time the webpage had been visited by IP addresses across the UK and abroad. As a result, a small number of these individuals brought claims for misuse of private information and breaches of the Data Protection Act 1998 (DPA).

The defendant accepted that their accidental publication of personal data amounted to a misuse of private and confidential information and a breach of the DPA. It was not disputed that, subject to proof, damages were recoverable for distress at common law and section 13 of the DPA, unless Google Inc v Vidal-Hall is overturned.

The six individuals who brought the claims were awarded between £2,500 and £12,500 in damages for misuse of their private information and the distress suffered as a result of the data breach.”





How to exercise your right to damages

Write or speak to the organization which mishandled your personal information to see if you can reach an agreement and claim compensation. If you feel that your concern has not been satisfactorily addressed, you should write to the organization and inform them of your intent to take the matter to the court, before you start court proceedings. Talk to a legal adviser if you want to make a claim in court.

The NPC has no role in dealing with compensation claims. But you may request us to assess if the organization mishandled your personal data and broke the DPA. You can give a copy of the NPC’s letter to the court along with the evidence to prove your claim. This, however, does not guarantee that the judge will fully agree with NPC’s view. You may also require someone from the NPC to give expert evidence which will only be allowed if the judge orders it. The party calling the witness will have to shoulder the corresponding cost.




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The right to file a complaint with the National Privacy Commission

If you feel that your personal information has been misused, maliciously disclosed, or improperly disposed, or that any of your data privacy rights have been violated, you have a right to file a complaint with the NPC.

To know more about this, click here.

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The right to rectify

You have the right to dispute and have corrected any inaccuracy or error in the data a personal information controller (PIC) hold about you. The PIC should act on it immediately and accordingly, unless the request is vexatious or unreasonable. Once corrected, the PIC should ensure that your access and receipt of both new and retracted information. PICs should also furnish third parties with said information, should you request it.





Example

A government employee resigned from her agency with a period with premium payments of 20.49 years. The employee’s birthdate indicated in her Government Service Insurance System (GSIS) records is 30 June 1959. However, her National Statistics Office (NSO) authenticated Certificate of Live Birth shows 30 June 1952 as her birthdate. Her birthdate will determine when she will start receiving her monthly pension – in 2019 if based on the GSIS record, and in 2012 if based on her birth certificate. She, thus, invoked her right to rectify her personal data under the Data Privacy Act of 2012.





How to exercise your right to rectify

If the organization does not yet have a system or form for data rectification, you must execute a written request to the organization, addressed to its Data Protection Officer (DPO), and have it received. In the letter, mention that your request is being made in exercise of your right to object under the Data Privacy Act of 2012. Documents to support your request must be attached. The DPO must act on your written request. In case you feel your request have not been addressed satisfactorily, you may file a formal complaint before the NPC, attached therewith your request letter to the DPO.

Some organizations already have their system or form for data rectification. For instance, the Social Security System (SSS) only requires their members to accomplish SSS Form E-4 or the Member Data Change Request Form and submit with it the supporting documents. The needed supporting documents vary depending on the personal data that you want corrected (i.e. for correction of name and birthdate – PSA/NSO-authenticated birth certificate or valid passport, for correction of name due to naturalization – Certificate of Naturalization issued by the Philippine Department of Foreign Affairs, identification certificate issued by the Philippine Bureau of Immigration, and any foreign government- issued ID cards and/or documents showing the new name).





Additional notes

For organizations, click here to view a sample of a personal data rectification form.




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The right to data portability

This right assures that YOU remain in full control of YOUR data. Data portability allows you to obtain and electronically move, copy or transfer your data in a secure manner, for further use. It enables the free flow of your personal information across the internet and organizations, according to your preference. This is important especially now that several organizations and services can reuse the same data.

Data portability allows you to manage your personal data in your private device, and to transmit your data from one personal information controller to another. As such, it promotes competition that fosters better services for the public.





Example

In case you want to close your Facebook account and leave the service, or simply feel like you’ve shared a lot of information about your life and want a backup of all your Facebook data, you may exercise your right to data portability.

You may also exercise this right if you intend to get a usable copy of your personal health records for the use of other doctors you may like to consult. In banking, the right to data portability may be used to reduce the risks of being locked-in with one single service provider, thereby expanding customers’ options and improving customer experience.





How to exercise your right to data portability

Various online platforms have been making data portability an available and instant option for its users. For instance, Facebook enabled its users to readily download all their personal content and information, including wall posts, status updates, photos, videos, and conversation threads. Currently, users will just have to click at the top right of any Facebook page and select “Settings”, then click “Download a copy of your Facebook data” at the bottom of “General Account Settings”, and click “Start My Archive”. Google has a similar feature that readily allows its users to create an archive to keep for their personal record or for use in another service.

In case the personal information controller concerned does not yet have an online data portability feature, you must execute a written request to the organization, addressed to its Data Protection Officer (DPO), and have it received. In the letter, mention that your request is being made in exercise of your right to data portability under the Data Privacy Act of 2012. Documents to support your request must be attached. The DPO must act on your written request. In case you feel your request have not been addressed satisfactorily, you may file a formal complaint before the NPC, attached therewith your request letter to the DPO.




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Transmissibility of Data Subject Rights

Just like any physical property, such as real estate, you can assign your rights as a data subject to your legal assignee or lawful heir. Similarly, you may assert another person’s rights as a data subject, provided he or she authorized you as a “legal assignee”.

You may also invoke another person’s data privacy rights after his or her death if you are his or her legal heir. This same principle applies to parents of minors, or their legal guardian, who are responsible for asserting their rights on their behalf.

This right, however, is not applicable in case the processed personal data being contested are used only for scientific and statistical research.



The practical need for transmissibility

An individual’s personal data lives on even after his death. As such, they could still be subject to privacy violations whether intentional or otherwise. The Data Privacy Act of 2012 included this provision to protect their privacy rights through a living person willing to assume the responsibility on their behalf. The transmissibility of data privacy rights has been extended to living adults who are unable to protect their own rights and wish to assign the responsibility to someone else.

How to execute

Data subjects who are alive but incapacitated, for some reason unable to to assert their own personal privacy rights and wish to authorize a “legal assignee” to act as their proxy may do so by executing a legal notice to the effect, such as through a Special Power of Attorney.

In case of a deceased data subject, the legal heir must be prepared to show legal evidence to back their claim. Parents or guardians automatically assume the responsibility of protecting the privacy rights of minors under their care.




Limitations on Rights

The provisions of the law regarding transmissibility of rights and the right to data portability will not apply if the processed personal data are used only for the needs of scientific and statistical research and, based on such, no activities are carried out and no decisions are taken regarding the data subject. There should also be an assurance that the personal data will be held under strict confidentiality and used only for the declared purpose.

They will not also apply to the processing of personal data gathered for investigations in relation to any criminal, administrative or tax liabilities of a data subject. Any limitations on the rights of the data subject should only be to the minimum extent necessary to achieve the purpose of said research or investigation.

Want to know more about this topic? AskPriva.