Privacy in numbers?

Paper No. 1:

 

On whether or not the act of disclosing a person’s mobile phone number, without his/her consent, to a third person constitutes a violation of Republic Act No. 10173, entitled An Act Protecting Individual Personal Information in Information and Communications Systems in the Government and the Private Sector, Creating for this Purpose a National Privacy Commission, and for other purposes.

 

——————–

 

 

“It is the policy of the State to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth. The State recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected.”[1]

 

Indeed the State values the right to privacy of an individual. This right is enshrined in the Constitution, particularly in Section 3 (1) of the Bill of Rights, which provides that “[t]he privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law”.

 

In the case of Ople vs. Torres[2], the Supreme Court expounded that ‘[z]ones of privacy are likewise recognized and protected in our laws”, listing the provisions of the Civil Code – Articles 26, 32, and 723 – and the Revised Penal Code – Articles 229, 290-292, and 280 – which recognize this fundamental right. It further enumerated special laws which recognize the privacy of certain information, specifically, Republic Act No. 4200 or the Anti-Wiretapping Law, Republic Act No. 1405 or the Secrecy of Bank Deposits Act and Republic Act No. 8293 or the Intellectual Property Code.

 

The Rule on the Writ of Habeas Data[3] is also designed to protect the right to privacy in life, liberty, or security.

 

Less than a year ago, Republic Act No. 10173, otherwise known as the Data Privacy Act of 2012 took effect.

 

Now the question has been posed: Would the act of giving out a person’s mobile phone number without his/her consent constitute a violation of RA 10173?

 

An answer to this seemingly simple question requires an analysis of relevant provisions of Republic Act No. 10173. This one query entails several questions – Does a person’s mobile phone number come within the purview of “personal information” as defined under the law? Who may be held liable for violation of RA 10173? What constitutes a violation thereof?

 

 

            Foremost, what are the acts penalized under RA 10173?

 

            The law provides for penalties in case of the following:

 

  1. Unauthorized processing of personal information and personal sensitive information done by persons who process personal information or sensitive personal information without the consent of the data subject or without being authorized by said Act or by other laws[4];

 

  1. Accessing personal information or sensitive personal information due to negligence done by persons who, due to negligence, provide access to personal information or sensitive personal information without being authorized by the Act or other laws[5];

 

  1. Improper disposal of personal information or sensitive personal information done by persons who knowingly or negligently dispose, discard or abandon the personal information of an individual in an area accessible to the public or has otherwise placed the personal information of an individual in its container for trash collection[6];

 

  1. Processing of personal information or sensitive personal information for unauthorized purposes done by any person who process personal information or sensitive personal information for purposes not authorized by the data subject, or otherwise authorized under the Act or other laws[7];

 

  1. Unauthorized access or intentional breach which is done by a person who knowingly and unlawfully, or violating data confidentiality and security data systems, breaks in any way into any system where personal and sensitive personal information is stored[8];

 

  1. Concealment of security breaches involving sensitive personal information which is done by any person who, after having knowledge of a security breach and of the obligation to notify the National Privacy Commission, intentionally or by omission conceals the fact of such security breach [9];

 

  1. Malicious disclosure done by any personal information controller[10] or personal information processor[11] or any of its officials, employees or agents, who, with malice or in bad faith, discloses unwarranted or false information relative to any personal information or personal sensitive information obtained by him or her [12]; and

 

  1. Unauthorized disclosure by any personal information controller or personal information processor or any of its officials, employees or agents, who discloses to a third party personal information or sensitive personal information without the consent of the data subject [13].

 

In determining whether or not there is indeed a violation under the preceding enumeration, it is necessary to establish the meaning of personal information and whether this includes a person’s mobile phone number.

 

Under RA 10173, personal information refers to “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”.[14]

 

Furthermore, the law distinguished sensitive personal information, which is limited to personal information about an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations; 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; issued by government agencies peculiar to an individual which includes, but not limited to, social security numbers, previous or cm-rent health records, licenses or its denials, suspension or revocation, and tax returns; and those specifically established by an executive order or an act of Congress to be kept classified.[15]

 

It is clear from the foregoing definition that mobile phone numbers do not constitute sensitive personal information.

 

The law also states that it applies to “all types of personal information”, save for a few exceptions, which have been enumerated in Section 4 [16], where mobile phone numbers do not fall under.

 

However, do mobile phone numbers come under the definition of personal information?

 

The answer is yes.

 

True, a mobile phone number consisting of merely 11 digits cannot readily disclose the identity of an individual. However, when taken together with other information, a mobile phone number can be a source of information as to the identity of an individual. This information, although only consisting of numbers, could give access to another person, including his identity and may become a means of accessing other data relating to the person who owns the number.

 

            Having established that a person’s mobile phone number constitutes personal information, there is now a need to determine the liability of a person who discloses such data.

 

            The main factor to be considered is the lack of consent given by the owner of the mobile phone number. Consent is defined as any freely given, specific, informed indication of will, whereby the data subject agrees to the collection and processing of personal information about and/or relating to him or her. Consent shall be evidenced by written, electronic or recorded means. It may also be given on behalf of the data subject by an agent specifically authorized by the data subject to do so.”[17]

 

Under Section 12 of RA 10173, the processing of personal information is allowed only when not otherwise prohibited by law AND when at least one of the following conditions exist:

 

(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 for compliance with a legal obligation to which the personal information controller is subject;

 

(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 provision is clear, even without consent of the data subject, as long as any of the other conditions exist and as long as it is not prohibited by other laws, processing of personal information is lawful.

 

            Nevertheless, the law also provides for the rights of the data subject[18], however, Section 19 seems to dispense with these when personal information is used only for the needs of scientific and statistical research and, on the basis of such, no activities are carried out and no decisions are taken regarding the data subject, and as long as the personal information is held under strict confidentiality and shall be used only for the declared purpose; and when personal information is gathered for the purpose of investigations in relation to any criminal, administrative or tax liabilities of a data subject.

 

            With this in mind, while RA 10173 emphasizes the necessity of the consent of a person in the processing of his personal information, the law has also set certain limitations.

 

            Does this mean then that consent may be dispensed with when it comes to disclosure of personal information?

 

            It does not.

 

            Sections 31 and 32 of RA 10173 provide the penalties for malicious disclosure and unauthorized disclosure.

 

Malicious disclosure is done when a personal information controller or personal information processor or any of its officials, employees or agents, with malice or in bad faith, discloses unwarranted or false information relative to any personal information or personal sensitive information obtained by him or her.

 

On the other hand, unauthorized disclosure is done when a personal information controller or personal information processor or any of its officials, employees or agents, discloses to a third party personal information or sensitive personal information, not covered by the provision on malicious disclosure, without the consent of the data subject.

 

The provision, in very simple and clear terms, states that WITHOUT THE CONSENT of the data subject, the persons enumerated will be held liable when he or she discloses personal information to a third party. In penalizing unauthorized disclosure under Section 32, the primary consideration is the lack of consent given by the data subject.

           

            Likewise, any other person may be held liable under Section 25 when he processes personal information, without the consent of the data subject or without being authorized by the law, meaning he/she is not authorized to act as a personal information controller or personal information processor.

 

            Consent freely given by the data subject, the owner of the mobile phone number, is the primary condition set by the law in determining whether or not the right to privacy of a person has been violated.

 

Scrutiny of Republic Act No. 10173 and primarily considering its intent to protect the right to privacy, it can be concluded that that disclosure of an individual’s personal information, which includes his mobile phone number, without his consent, is indeed a violation thereof. Consent must first be given by the person for the processing of his personal information. This includes disclosure of personal information, such as his mobile phone number.

 

While safeguarding the fundamental right to privacy, the law allows the processing of personal information, subject to certain conditions, of which consent is of prime consideration. It is basic that every person must be secure in his life and this includes being secure in the privacy of his personal information, which includes his mobile phone number which can be linked to him or his identity. Absent the consent of a person, no personal information may be collected and disclosed without violating his right to privacy.


[1] Section 2, Republic Act No. 10173, Data Privacy Act of 2012

[2] G.R. No. 127685, July 23, 1998

[3] A.M. 08-1-16-SC, January 22, 2008

[4] Sec. 25, RA 10173

[5] Sec. 26

[6] Sec. 27

[7] Sec. 28

[8] Sec. 29

[9] Sec. 30

[10] Sec. 3 (h) Personal information controller refers to a person or organization who controls the collection, holding, processing or use of personal information, including a person or organization who instructs another person or organization to collect, hold, process, use, transfer or disclose personal information on his or her behalf. The term excludes:

(1) A person or organization who performs such functions as instructed by another person or organization; and

(2) An individual who collects, holds, processes or uses personal information in connection with the individual’s personal, family or household affairs.

[11] Sec. 3 (i) Personal information processor refers to any natural or juridical person qualified to act as such under this Act to whom a personal information controller may outsource the processing of personal data pertaining to a data subject.

[12] Sec. 31

[13] Sec. 32

[14] Sec. 3 (g)

[15] Sec. 3(l)

[16] Section 4. Scope. – This Act applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines subject to the immediately succeeding paragraph: Provided, That the requirements of Section 5 are complied with.

This Act does not apply to the following:

(a) Information about any individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual, including:

(1) The fact that the individual is or was an officer or employee of the government institution;

(2) The title, business address and office telephone number of the individual;

(3) The classification, salary range and responsibilities of the position held by the individual; and

(4) The name of the individual on a document prepared by the individual in the course of employment with the government;

(b) Information about an individual who is or was performing service under contract for a government institution that relates to the services performed, including the terms of the contract, and the name of the individual given in the course of the performance of those services;

(c) Information relating to any discretionary benefit of a financial nature such as the granting of a license or permit given by the government to an individual, including the name of the individual and the exact nature of the benefit;

(d) Personal information processed for journalistic, artistic, literary or research purposes;

(e) Information necessary in order to carry out the functions of public authority which includes the processing of personal data for the performance by the independent, central monetary authority and law enforcement and regulatory agencies of their constitutionally and statutorily mandated functions. Nothing in this Act shall be construed as to have amended or repealed Republic Act No. 1405, otherwise known as the Secrecy of Bank Deposits Act; Republic Act No. 6426, otherwise known as the Foreign Currency Deposit Act; and Republic Act No. 9510, otherwise known as the Credit Information System Act (CISA);

(f) Information necessary for banks and other financial institutions under the jurisdiction of the independent, central monetary authority or Bangko Sentral ng Pilipinas to comply with Republic Act No. 9510, and Republic Act No. 9160, as amended, otherwise known as the Anti-Money Laundering Act and other applicable laws; and

(g) Personal information originally collected from residents of foreign jurisdictions in accordance with the laws of those foreign jurisdictions, including any applicable data privacy laws, which is being processed in the Philippines.

[17] Sec. 3 (b)

[18] Sec. 16. Rights of the Data Subject. – The data subject is entitled to:

(a) Be informed whether personal information pertaining to him or her shall be, are being or have been processed;

(b) Be furnished the information indicated hereunder before the entry of his or her personal information into the processing system of the personal information controller, or at the next practical opportunity:

(1) Description of the personal information to be entered into the system;

(2) Purposes for which they are being or are to be processed;

(3) Scope and method of the personal information processing;

(4) The recipients or classes of recipients to whom they are or may be disclosed;

(5) Methods utilized for automated access, if the same is allowed by the data subject, and the extent to which such access is authorized;

(6) The identity and contact details of the personal information controller or its representative;

(7) The period for which the information will be stored; and

(8) The existence of their rights, i.e., to access, correction, as well as the right to lodge a complaint before the Commission.

Any information supplied or declaration made to the data subject on these matters shall not be amended without prior notification of data subject: Provided, That the notification under subsection (b) shall not apply should the personal information be needed pursuant to a subpoena or when the collection and processing are for obvious purposes, including when it is necessary for the performance of or in relation to a contract or service or when necessary or desirable in the context of an employer-employee relationship, between the collector and the data subject, or when the information is being collected and processed as a result of legal obligation;

(c) Reasonable access to, upon demand, the following:

(1) Contents of his or her personal information that were processed;

(2) Sources from which personal information were obtained;

(3) Names and addresses of recipients of the personal information;

(4) Manner by which such data were processed;

(5) Reasons for the disclosure of the personal information to recipients;

(6) Information on automated processes where the data will or likely to be made as the sole basis for any decision significantly affecting or will affect the data subject;

(7) Date when his or her personal information concerning the data subject were last accessed and modified; and

(8) The designation, or name or identity and address of the personal information controller;

(d) Dispute the inaccuracy or error in the personal information and have the personal information controller correct it immediately and accordingly, unless the request is vexatious or otherwise unreasonable. If the personal information have been corrected, the personal information controller shall ensure the accessibility of both the new and the retracted information and the simultaneous receipt of the new and the retracted information by recipients thereof: Provided, That the third parties who have previously received such processed personal information shall he informed of its inaccuracy and its rectification upon reasonable request of the data subject;

(e) Suspend, withdraw or order the blocking, removal or destruction of his or her personal information from the personal information controller’s filing system upon discovery and substantial proof that the personal information are incomplete, outdated, false, unlawfully obtained, used for unauthorized purposes or are no longer necessary for the purposes for which they were collected. In this case, the personal information controller may notify third parties who have previously received such processed personal information; and

(f) Be indemnified for any damages sustained due to such inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use of personal information.

 

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One Response to Privacy in numbers?

  1. Pingback: Students’ Take: Contacts viz RA 10173 | Berne Guerrero

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