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 consent form. 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

You can exercise your right to object if the personal data processing involved is based
on consent or on legitimate interest. When you object or withhold your consent, the
PIC should no longer process the personal data, unless the processing is pursuant to a
subppoena, for obvious purposes (contract, employer-employee relationship, etc.) or a
result of a legal obligation.
In case there is any change or amendment to the information previously given to you,
you should be notified and given an opportunity to withhold consent.

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.

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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&cont
ext=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.