Proposed Changes to Singapore Personal Data Protection Act 2012

by Morgan Lewis
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Morgan Lewis

The Personal Data Protection Commission is holding a public consultation exercise on its proposed changes to the Personal Data Protection Act 2012.

The Singapore Personal Data Protection Act 2012 (PDPA) has governed the collection, use, and disclosure of an individual’s personal data by organisations since it came into full effect on 1 January 2014. To ensure that the PDPA continues to stay up to date with global technological advances and developments, the Singapore Personal Data Protection Commission (the Commission) has proposed several changes to the current PDPA regime. This proposal by the Commission has been released for a public consultation exercise, which will last until 21 September 2017.

Broadly speaking, the changes are aimed at reviewing the concepts of consent and notification of breaches, and their relevance to other bases for collecting, using, and disclosing personal data under the PDPA. The key changes being proposed are detailed below.

Consent and Notification

Currently, the PDPA requires that organisations obtain consent from individuals for the collection, use, and disclosure of their personal information, except in limited situations. However, the Commission recognises that a consent-based approach may no longer be practical given that it is increasingly a commercial necessity for data to be passively collected and transmitted across communication networks, as demonstrated through the adoption of Internet of Things devices, machine learning, and artificial intelligence, all of which rely heavily on large amounts of personal data being seamlessly collected, analysed, and disseminated.

Balancing the need to ensure that individuals retain control over their personal data and the benefits to society from the adoption of new technologies, the Commission proposes to adopt a parallel “Notification of Purpose” approach, which would apply when the following criteria are satisfied:

  • It is impractical for the organisation to obtain consent.
  • The collection, use, and disclosure of personal data is not expected in any way to have an adverse impact on the individual.

The Commission envisions that the Notification of Purpose approach could be applicable when (1) an organisation does not have the contact information of its customers but wishes to use its customers’ personal data for the purposes of conducting analytics in developing new products and services; or (2) an organisation inadvertently records personal data when it conducts human traffic surveillance operations.

Organisations relying on the Notification of Purpose would have to demonstrate accountability by (1) conducting data protection impact assessments and (2) providing appropriate notification to individuals so that they may opt out of their personal data being collected.

Legal or Business Purpose

Currently, organisations may collect and use an individual’s data without his/her consent if it is necessary for investigations or research purposes or to recover a debt. The Commission is proposing to expand the exceptions where an organisation may collect, use, or disclose personal data without an individual’s consent.

The Commission is planning to expand the scope of these exceptions to include situations where personal data is needed for a “Legal or Business Purpose” and to do away with the requirement for organisations to notify individuals when their personal data is being collected and used as such. The Legal or Business Purpose exception would be available when:

  • it is not desirable or appropriate to obtain the individual’s consent; and
  • the benefits to the public (or a section thereof) clearly outweigh any adverse impact or risks to the individual.

For example, the Legal or Business Purpose exception could apply when a group of organisations in a particular sector need to share information and analyse personal data of customers in order to detect and prevent fraudulent activities. Once again, to ensure sufficient checks and balances are in place, the organisation would need to conduct data protection impact assessments.

Data Breach Notifications

Keeping pace with the notification requirements under the proposed cybersecurity bill, the Commission is also looking to introduce a mandatory data breach notification requirement. This would allow affected individuals to take immediate steps to protect their personal data with the Commission providing guidance to affected organisations on post-breach remedial actions.

The mandatory data breach notification requirement would apply in the following situations:

  • Notification to affected individuals and the Commission is necessary when a data breach poses any risk of impact or harm to the affected individuals (e.g., a data breach that involves identification numbers, health information, financial information, or passwords).
  • Notification to the Commission is necessary where the scale of the data breach is significant (e.g., involving 500 or more individuals), even if the breach does not pose any risk of impact or harm to the affected individuals.

All data breach notifications to the Commission must be done within 72 hours from the time the organisation is aware of the data breach, whereas notifications to affected individuals must be done as soon as practicable.

This mandatory data breach notification requirement also applies to the organisation’s data intermediaries (i.e., entities that process personal data on behalf of the organisation). The data intermediaries must immediately inform the organisation of all breaches regardless of the harm or scale so that the organisation may make its own assessment as to whether notification to affected individuals and/or the Commission is necessary.

However, the mandatory data breach notification requirement will not apply to:

  • any individual acting in a personal or domestic capacity,
  • any employee acting in the course of his or her employment with the organisation, or
  • any public agency or any organisation acting on behalf of a public agency.

Additionally, notification to affected individuals is not necessary when (1) it is likely to impede law enforcement investigations or (2) the affected personal data is encrypted to a reasonable standard.

Implications for Businesses

The proposals by the Commission demonstrate the government’s willingness to adapt to the realities of the digital economy. Organisations that are reliant on data analytics for their operations or research and development should take note of these proposed changes.

On one hand, the limited removal of the consent requirement may translate into cost savings and streamlining of business operation processes. On the other, the mandatory data breach notification requirement would mean that organisations need to ensure that their contracts with their data intermediaries are appropriately revised, and that their data protection officers are aware that they may have to notify the Commission in the event of any data breaches.

Finally, though there are still unknowns surrounding the scope of the Notification of Purpose approach and the Legal or Business Purpose exception, we anticipate that the Commission would release guidelines and concrete examples of the applications of these principles in due course if the Commission’s proposals were accepted.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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