PERSONAL INFORMATION UNDER THE DATA PRIVACY ACT: What is personal information and how should it be processed?

Sometime in August 2014, popular blogger Michael Sy Lim of Fashion Pulis posted screenshots of what were alleged to be leaked medical records of model Deniece Cornejo from Healthway Clinic showing her to be suffering from a sexually transmitted disease. At the time, Cornejo was in the thick of a media storm caused by her allegation that she was raped by celebrity dancer and host Vhong Navarro. On top of the rape case she had previously filed against Navarro, she wound up filing another complaint for libel, this time against Lim.

In November 2017, at the height of the government’s high-stakes crackdown against illegal drugs, the Philippine Drug Enforcement Agency (PDEA) conducted a raid at the Seda Hotel in BGC where 11 men, comprised of models and professionals, were rounded up for allegedly engaging in a drug-fueled sex orgy. At a press conference following the arrest, the PDEA announced that one of the men was HIV positive. There was incontrovertible identification because PDEA officials had asked said man to raise his hand. The incident prompted a uniform outcry from HIV and data privacy advocates alike, accusing PDEA of having overstepped its authority in revealing sensitive personal information that had nothing to do with the crime for which the suspects were arrested and exposing the victim to ridicule and discrimination. By the time PDEA owned up to its mistake, the damage had already been done.

Both these incidents underscore the necessity of keeping sensitive personal information secure, given the adverse impact posed by the mishandling or unwarranted leaking thereof. The passage of R.A. 10173, or the Data Privacy Act of 2012, was envisioned to provide ample protection to individuals against having their sensitive personal information exposed. Despite this, there remains a lot of confusion as to what exactly constitutes personal information and sensitive personal information.

Personal information and sensitive personal information

The first step to clarifying this confusion is by defining what is personal information. Section 3(g) of the Data Privacy Act provides that personal information is “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.” In other words, any information that alludes to the identify of a specific person is considered personal information.

But the Data Privacy Act makes a further distinction between personal information and sensitive personal information, the latter intended by the law to be afforded a substantially greater degree of protection.

The enumeration of what constitutes sensitive personal information is exclusive. Section 3(l) of the Data Privacy Act provides that personal information is considered “sensitive” if it refers to: (a) an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations; (b) an individual’s health, education, genetic or sexual life of a person, or to any proceeding for any offense committed or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings; (c) information issued by government agencies peculiar to an individual which includes, but not limited to, social security numbers, previous or current health records, licenses or its denials, suspension or revocation, and tax returns; or (d) information specifically established by an executive order or an act of Congress to be kept classified.

Processing personal information

The processing of personal information, sensitive or otherwise, requires the exercise of due caution and diligence. The word “processing,” as defined in Section 3(j) of the Data Privacy Act, pertains to “any operation or any set of operations performed upon personal information including, but not limited to, the collection, recording, organization, storage, updating or modification, retrieval, consultation, use, consolidation, blocking, erasure or destruction of data.” Filling up medical forms, collecting biometric data in voter IDs, signing up for an online shopping account and paying for purchases made therein, applying for a passport, or requesting for certified true copy of grades from the school registrar are some of the transactions that require the processing of personal information.

Section 11 of Chapter III of the Data Privacy Act enumerates six general data privacy principles that need to be adhered to in the processing of personal information. These are:

Personal information must be collected for specified and legitimate purposes determined and declared before, or as soon as reasonably practicable after collection, and later processed in a way compatible with such declared, specified and legitimate purposes only;
Personal information must be processed fairly and lawfully;
Personal information must be accurate, relevant and, where necessary for purposes for which it is to be used the processing of personal information, kept up to date; inaccurate or incomplete data must be rectified, supplemented, destroyed or their further processing restricted;
Personal information must be adequate and not excessive in relation to the purposes for which they are collected and processed;
Personal information must be retained only for as long as necessary for the fulfillment of the purposes for which the data was obtained or for the establishment, exercise or defense of legal claims, or for legitimate business purposes, or as provided by law; and
Personal information must be kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected and processed, so long as personal information collected for other purposes may be processed for historical, statistical or scientific purposes, and in cases laid down in law may be stored for longer periods, and that adequate safeguards are guaranteed by said laws authorizing their processing.

Criteria for the processing of personal information

The previously cited principles must be observed in conjunction with the criteria for the processing of personal information as enumerated in Section 12 of the Data Privacy Act. In this regard, it is crucial that: (a) the data subject has given his or her consent; (b) the processing of personal information is necessary and is related to the fulfillment of a contract with the data subject or in order to take steps at the request of the data subject prior to entering into a contract; (c) the processing is necessary to comply with a legal obligation of the personal information controller; (d) the processing is necessary to protect vitally important interests of the data subject, including life and health; (e) the processing is necessary in order to respond to national emergency, to comply with the requirements of public order and safety, or to fulfill functions of public authority which necessarily includes the processing of personal data for the fulfillment of its mandate; or (f) the processing is necessary for the purposes of the legitimate interests pursued by the personal information controller or by a third party or parties to whom the data is disclosed, except where such interests are overridden by fundamental rights and freedoms of the data subject which require protection under the Philippine Constitution.

The Data Privacy Act punishes by fine and/or imprisonment certain acts involving the mishandling of personal information. Some of these punishable acts include malicious or unauthorized disclosure, concealment of security breaches involving sensitive personal information, improper disposal or unauthorized processing of personal information and sensitive personal information, intentional breach or access due to negligence, or any combination thereof.

All told, the protection of personal information, sensitive or otherwise, faces an enormous challenge in today’s information-hungry and data-driven world. The strict enforcement of the Data Privacy Act, in particular the processing of personal information, is a key step towards addressing this modern phenomenon.

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Disini & Disini Law Office