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SSE 114 LECTURE HANDOUT #04

DATA PRIVACY ACT OF 2012

DATA PRIVACY ACT OF 2012

• Republic Act No. 10173, otherwise known as the Data Privacy Act (DPA) is a law that seeks to
protect all forms of information, be it private, personal, or sensitive. It is meant to cover both
natural and juridical persons involved in the processing of personal information.
DEFINITION OF TERMS

• “Personal data” refers to all types of personal information.

• “Data subject” refers to an individual whose personal, sensitive personal, or privileged
information is processed.
• “Personal information controller” 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.
The term excludes:
1. A natural or juridical person, or any other body, who performs such functions as instructed
by another person or organization; or
2. A natural person who processes personal data in connection with his or her personal,
family, or household affairs;
There is control if the natural or juridical person or any other body decides on what
information is collected, or the purpose or extent of its processing.
• “Personal information processor” refers to any natural or juridical person or any other body to
whom a personal information controller may outsource or instruct the processing of personal data
pertaining to a data subject.
• “Processing” refers to any operation or any set of operations performed upon personal data
including, but not limited to, the collection, recording, organization, storage, updating or
modification, retrieval, consultation, use, consolidation, blocking, erasure or destruction of data.
Processing may be performed through automated means, or manual processing, if the personal
data are contained or are intended to be contained in a filing system.
• “Data sharing” is the disclosure or transfer to a third party of personal data under the custody of a
personal information controller or personal information processor. In the case of the latter, such
disclosure or transfer must have been upon the instructions of the personal information controller
concerned. The term excludes outsourcing, or the disclosure or transfer of personal data by a
personal information controller to a personal information processor.
• “Personal data breach” refers to a breach of security leading to the accidental or unlawful
destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted,
stored, or otherwise processed. The types of data breaches are availability, integrity and
confidentiality breaches.
CLASSIFICATION OF PERSONAL DATA

• 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.

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 • Sensitive personal information refers to personal information:
1. About an individual’s race, ethnic origin, marital status, age, color, and religious,
philosophical or political affiliations;
2. About 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
individual, the disposal of such proceedings, or the sentence of any court in such
proceedings;
3. 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
4. Specifically established by an executive order or an act of Congress to be kept classified.
LAWFUL PROCESSING OF PERSONAL DATA

• Processing of personal information is allowed, unless prohibited by law. For processing to be

lawful, any of the following conditions must be complied with:
a. The data subject must have given his or her consent prior to the collection, or as soon as
practicable and reasonable;
b. The processing involves the personal information of a data subject who is a party to a
contractual agreement, in order to fulfill obligations under the contract or to take steps at
the request of the data subject prior to entering the said agreement;
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 his or her life and health;
e. The processing of personal information is necessary to respond to national emergency or to
comply with the requirements of public order and safety, as prescribed by law;
f. The processing of personal information is necessary for the fulfillment of the constitutional
or statutory mandate of a public authority; or
g. The processing is necessary to pursue the legitimate interests of 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 processing of sensitive personal information is prohibited, except in any of the following
cases:
a. Consent is given by data subject, or by the parties to the exchange of privileged information,
prior to the processing of the sensitive personal information or privileged information, which
shall be undertaken pursuant to a declared, specified, and legitimate purpose;
b. The processing of the sensitive personal information or privileged information is provided for
by existing laws and regulations: Provided, that said laws and regulations do not require the
consent of the data subject for the processing, and guarantee the protection of personal data;
c. 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;
d. The processing is necessary to achieve the lawful and noncommercial objectives of public
organizations and their associations provided that:
1. Processing is confined and related to the bona fide members of these organizations or
their associations;

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2. The sensitive personal information are not transferred to third parties; and
 3. Consent of the data subject was obtained prior to processing;
e. The processing is necessary for the purpose of medical treatment: Provided, that it is carried
out by a medical practitioner or a medical treatment institution, and an adequate level of
protection of personal data is ensured; or
f. The processing concerns sensitive personal information or privileged information necessary
for the protection of lawful rights and interests of natural or legal persons in court
proceedings, or the establishment, exercise, or defense of legal claims, or when provided to
government or public authority pursuant to a constitutional or statutory mandate.
RIGHTS OF THE DATA SUBJECT

• The data subject is entitled to the following rights:

1. Right to be informed
2. Right to object
3. Right to access
4. Right to rectification
5. Right to erasure or blocking
6. Right to damages
7. Right to data portability - Where his or her personal data is processed by electronic means
and in a structured and commonly used format, the data subject shall have the right to
obtain from the personal information controller a copy of such data in an electronic or
structured format that is commonly used and allows for further use by the data subject.
Transmissibility of Rights of the Data Subject
o The lawful heirs and assigns of the data subject may invoke the rights of the data subject to
which he or she is an heir or an assignee, at any time after the death of the data subject, or
when the data subject is incapacitated or incapable of exercising the rights as enumerated in
the immediately preceding section.
DATA PRIVACY PRINCIPLES
General Data Privacy Principles

• The processing of personal information shall be allowed, subject to:

1. Compliance with the requirements of DPA and other laws, allowing disclosure of
information to the public; and
2. Adherence to the principles of transparency, legitimate purpose, and proportionality. a)
Transparency. The data subject must be aware of the nature, purpose, and extent of the
processing of his or her personal data, including the risks and safeguards involved, the
identity of personal information controller, his or her rights as a data subject, and how
these can be exercised. Transparency is demonstrated through:
i. Privacy Notice
ii. Privacy Policy
iii. Consent of the Data Subject - refers to any freely given, specific, informed
indication of will, whereby the data subject agrees to the collection and
processing of his or her personal, sensitive personal, or privileged information.
Consent shall be evidenced by written, electronic or recorded means. It may

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also be given on behalf of a data subject by a lawful representative or an agent

specifically authorized by the data subject to do so.
 b) Legitimate purpose. The processing of information shall be compatible with a
declared and specified purpose which must not be contrary to law, morals, or public
policy.
c) Proportionality. The processing of information shall be adequate, relevant, suitable,
necessary, and not excessive in relation to a declared and specified purpose. Personal
data shall be processed only if the purpose of the processing could not reasonably be
fulfilled by other means.
General Principles in Collection, Processing, and Retention of Personal Data

• The processing of personal data shall adhere to the following general principles: 1.
Collection must be for a declared, specified, and legitimate purpose
2. Personal data shall be processed fairly and lawfully
3. Processing should ensure data quality
4. Personal data shall not be retained longer than necessary
5. Any authorized further processing shall have adequate safeguards
General Principles for Data Sharing

• Further processing of personal data collected from a party other than the data subject shall be
allowed under any of the following conditions:
1. When it is expressly authorized by law, provided that:
a) There are adequate safeguards for data privacy and security; and
b) Processing adheres to the principles of transparency, legitimate purpose and
proportionality.
2. When in the private sector, the data subject consents to data sharing, and conditions are
complied with;
3. When the personal data is publicly available, or has the consent of the data subject for
purpose of research, provided that:
a) Adequate safeguards are in place, and
b) No decision directly affecting the data subject shall be made on the basis of
data collected or processed.
4. Data sharing between government agencies for the purpose of a public function or
provision of a public service shall be covered by a data sharing agreement.
NON-APPLICABILITY OF THE DPA

• The DPA 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;

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(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;
(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
the 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.
APPLICATIONS OF THE DPA IN THE SCHOOL SETTING
Teacher’s Right to Search a Minor’s Cellular Phone

• The teacher may have the right to seize the cellphone as this is a violation of DepEd rules
pursuant to the mandate to immediately stop or at the very least, closely monitor and regulate
the use of cellphones. But this does not automatically provide the teacher with the authority to
search through the contents of the cellphone. The teacher may only search through a minor
student’s cellphone without his consent in order to protect vitally important interests of the
student, including his life and health or probably to respond to national emergency. Any
search through a minor student’s cellular phone without the necessary warrant or any other
justification under a law or regulation allowing such act, is unlawful, and may be construed as
unauthorized processing punishable under Section 25 of the DPA.
Consent of Data Subject Prior to Release of School Records

• Given the responsibility of the school to secure personal information, its denial of a request for
information may be justified due to the lack of consent of the data subject. Although consent
is not the only condition for lawful disclosure or processing, in general, of personal
information, it may be the most appropriate criterion in certain scenarios.
Disclosure of School Records for Investigation
• The Education Act of 1982 (Batas Pambansa Blg. 232) recognizes that schools have the
obligation to maintain and preserve the confidentiality of school records. Furthermore, the
constitutional right against unreasonable searches and seizures guards against the exercise of
government of unbridled discretion in collecting, obtaining and using information relevant to
individuals, for whatever purpose. The request for disclosure of “school records in
connection with the investigation being conducted” by a law enforcement agency is not the
same as the issuance of a search warrant. Moreover, disclosure of school records may not be
warranted in

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the absence of any of the circumstances provided in the DPA which will serve as a lawful
basis for the processing of sensitive personal information.
Access to Information in Relation to Disciplinary Record
 • Information about any proceeding for any offense committed or alleged to have been committed
by an individual, the disposal of such proceedings, or the sentence of any court in such
proceedings are classified as sensitive personal information. Administrative cases in an
educational institution are included in such proceedings protected by the DPA.
• Still, the parties involved in the administrative proceeding, specifically the complainant and
respondent, have the right to be informed of the details of the case, including personal data, as
a matter of procedural due process. This holds true whether the party to the case is a student,
faculty or school personnel. Meanwhile, third parties to the proceeding, including witnesses,
other individuals who may be affected by the case and its outcome, and the public, are not
accorded the same right.
Posting of the List of Admitted Students on the Bulletin Board
• In order to rely on legitimate interests as basis for lawful processing, the PIC must be able to
satisfy its key elements which can be broken down into a three-part test as follows: 1.
Purpose test: are you pursuing a legitimate interest?
▪ There is a legitimate interest in the posting of the names on the bulletin board
of your school, the main purpose of which is to simply inform the applicants
that they successfully passed the examinations in the most transparent and
practical way.
2. Necessity test: is the processing necessary for that purpose?
▪ The posting is necessary for the purpose as these applicants are most probably
already eagerly waiting for the results of the examinations.
3. Balancing test: do the individual’s interests override the legitimate interest? ▪
Presumably, when an applicant applies for admission, which involves submitting
forms with his or her personal information, and subsequently taking the
examination, the applicant is aware that the school will process the personal
information, particularly his or her name for purposes that are relevant to his or
her admission, such as publication of successful applicants’ names. This means
that the applicant could reasonably expect that his or her name may be posted on
the bulletin board of the school if one has successfully hurdled the examinations.
• This being said, it is still recommended to obtain their consent. For instance, consent may be
obtained in their application form for purpose of posting in bulletin boards the names of those
accepted.
Common Practices of Schools in Processing Personal Data of Students
1. On posting of class list
• Apart from the student’s name, the data set enumerated included in the class roster, i.e.
student’s school name, grade level, section and test scores, are considered sensitive
personal information as these are related to the student’s education.
• Since the DPA should be read in parallel with existing laws, rules and regulations, the
pertinent issuances of the Department of Education (DepEd) or the Commission on
Higher Education (CHED) should also be consulted. If there is an existing issuance of the
DepEd

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and/or CHED on this matter, the same may be relied on as a lawful basis for the posting in
the bulletin board or official social media account, provided that the issuances guarantee
the protection of personal data. If there are no existing rules and regulations on the matter
issued by the relevant regulatory agencies, the school should obtain the students’ or their
legal guardians’, in case the students are minors, consent.
• The school should carefully reexamine whether such practice of posting class lists is still
 necessary and proportional to the purpose which the school seeks to achieve. Consider
also that posting in a physical bulletin board inside the school has a different context as
posting in a social media platform or website that is publicly accessible.
2. On posting of screenshots/photos of students
• If the screenshots of online classes where students are identifiable by their names and
images, would likewise reveal other education-related details, i.e. name of school, grade
level, exam scores, etc., the same may be considered as processing of sensitive personal
information. Whether the posting was done by a teacher or the school, the same should
always have a lawful basis for processing under the DPA. The teacher and the school
should have obtained the consent of the students, or parents, in case of minor students.
3. On posting of the list of students’ awards, recognition of students’ achievements/results during
school-related competitions and representation, and scholarship grant qualifiers • Honors,
awards, achievements and results during any school-related competition and representation,
including school or government scholarship grants, all fall under sensitive personal information
since these are information on an individual’s education. the processing of such sensitive personal
information should be based on any of the criteria provided under Section 13 of the DPA. In this
scenario, consent may be the most appropriate lawful basis for processing.
4. On school-related programs and activities
• the participation or involvement by a student in school-related or sponsored activities and
programs may be shown through different ways. The evaluation on whether the pictures
and videos may constitute personal or sensitive personal information may be made on a
case-to-case basis, considering various factors and circumstances, i.e. whether the photos
or videos involve a large crowd at a school event, etc. Names and photographs may be
considered as personal information and may be shared or disclosed pursuant to Section 12
of the DPA. If otherwise considered as sensitive personal information, Section 13 would
then apply. In all cases, schools must have mechanisms in place whereby the students, by
himself/herself or through their parent or legal guardian, would be able to exercise his/her
rights as a data subject, i.e. be able to provide consent and withdraw the same, object to
the processing of personal data, request for erasure, etc., as may be appropriate and
subject to the provisions of the DPA and its Implementing Rules and Regulations.
5. On posting students’ account or balance
• The principle of proportionality dictates that the least privacy-intrusive means of processing
should be chosen, if available. In this case, sending of notices by the school of the
amounts payable directly to the student, or his or her parent or legal guardian, can be
easily done and is more appropriate. In this scenario, there may be no need to post such
names and amounts due in the community bulletin board.
References:
1. Data Privacy FAQs. https://www.privacy.com.ph/learn-data-privacy-compliance/data-privacy
faqs/

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2. Republic Act 10173 – Data Privacy Act of 2012 Republic Act 10173 – Data Privacy Act of 2012 »
National Privacy Commission
3. Implementing Rules and Regulations of the Data Privacy Act of 2012 Implementing Rules and
Regulations of the Data Privacy Act of 2012 » National Privacy Commission
4. National Privacy Commission Privacy Policy Office Advisory Opinion No. 2017-049.
https://www.privacy.gov.ph/wp
content/files/attachments/advopn/NPC_AdvisoryOpinionNo._2017-049.pdf
5. National Privacy Commission Privacy Policy Office Advisory Opinion No. 2018-006.
https://www.privacy.gov.ph/wp-content/files/attachments/advopn/2018/NPCAONo.2018-006.pdf 6.
National Privacy Commission Privacy Policy Office Advisory Opinion No. 2018-020.
https://www.privacy.gov.ph/wp-content/files/attachments/advopn/2018/AdOpNo.2018-020.pdf 7.
National Privacy Commission Privacy Policy Office Advisory Opinion No. 2020-013.
https://www.privacy.gov.ph/wp-content/uploads/2020/10/Redacted-Advisory-Opinion-No.-2020-
013.pdf
8. National Privacy Commission Privacy Policy Office Advisory Opinion No. 2020-046.
https://www.privacy.gov.ph/wp-content/uploads/2020/12/Redacted-Advisory-Opinion-No.-2020-
046.pdf
9. cybersecLC2. (Dec 4, 2020). DICT LC2 - DepEd R4A: Data Privacy Act and Philippine National
Public Key Infrastructure Awareness. https://www.youtube.com/watch?v=3iHTXOStm34

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