Wednesday, July 18, 2012

Appraisal of the Data Privacy Act of 2011





Is it a Good or Bad Law?

Under Section 2, the State recognizes the:
(a) fundamental human right of privacy of communication;
(b) the vital role of information and communications technology in nation building;
(c) inherent obligation to ensure that personal information in the information and communications systems in the government and in the private sector are secured and protected

The passing of this bill will help foster the growth the call center industry in the Philippines since the proposed bill is based on the standards set by European Parliament and is aligned with the Asia Pacific Economic Cooperation Information Privacy Framework.[1]
The bill will result in the increase of foreign investments related to IT-BPOs. As of to date the salaries of the employees of the BPO amount to 14% of the 2012 government spending.[2]
With the passage of this bill, we are more likely to attract more IT-BPO investors. Raymond Lacdao, director for Business Processing Association of the Philippines, expects the industry to earn $25 billion in 2016 and employ 1.3 million employees. If the target is reached, Lacdao said this will result in 3.2 million indirect employees and a nine percent growth in GDP.[3]

Now ask yourself, is this a good or bad law? I think the answer is obvious.

Is this law perfect?

I.

 The bill would have a significant impact to our GDP however it is not without flaws. The most glaring flaw is that it fails to address protection against personal information and sensitive personal information of processed by personal information controllers and processors located outside the Philippines and do not maintain an office, branch or agency in the Phil and neither complies with any of the provisions stated under Section 5.

For the protection to apply the following elements must be present:
a.     Processing of all types of personal information
b.    Any natural or juridicial person involved in personal information processing
c.     Establishment outside of the Philippines may be subjected provided that:
a.     Establishment uses equipment that are located in the Philippines or;
b.    Maintain an office, branch, or agency
d.    complies with extra-territorial application

Extraterritorial application requires that for the protection to apply the act done or practice engaged in and outside the Philippines, any of the following should be present:
a.     personal information about a Philippine citizen or a resident
b.    entity has link with the Philippines
c.     other similar instances

II.

Under Section 9-A which discusses the accountability of the personal information controller. The personal information controller is responsible under its control or custody, including information that have been transferred to a third party for processing makes him accountable for complying with the requirements of the bill and provide level of protection while the information is being processed by a third party. However, the identity of the third party shall not be made known to the data subject unless a request by the data subject is made. The requirement of data subject consent is wrong since under the Rights of a Data Subject, he should be made aware of the personal information controller. All the more should the data subject be made aware of the third party processing the personal or sensitive personal information since errors would most likely arise from the third party who is not made accountable under Section 9-A.[4]

Unintended Consequences?

Article 3 Section 3 of the 1987 Constitution states that No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

Under Section 31, in cases of breach of penalty where such breach has resulted in the information being published or reported by media shall make the reporter, writer president, manager and editor-in-chief liable and be imprisoned and penalized. [5]

Should Section 31 be declared null and void for being unconstitutional since it abridges the freedom of the press?

How does this affect me and the general public?
This bill will cause an increase in Foreign Direct Investments in the IT-BPO industry which will in turn increase GDP of the Philippines. Presently, the Philippines is experiencing a surprising economic surge because of two factors: (a) OFW remittances (b) the call center industry. “These jobs are considered well - paid -- enough for workers to afford, after several years' employment, down payments on condominiums in Manila's booming property market.”6

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