Effective Approach in Implementation of Data Protection

Law:Macao’s Experiences

Ken YangOffice for Personal Data Protection

Macao SAR

Macao at a Glance

Small city with high population density• Size: 29.9 km2 in 2011 (11.6 km2 in 1912)• Population: 560 thousand (About 94% are

ethnic Chinese)• 60 Km far away from Hong Kong

A Special Administrative Region• In the early 1550s the Portuguese reached Macao• Ruled by Portuguese Administration before handover to China (Dec. 20th, 1999)• Like Hong Kong, benefits from the principle of "one country, two systems".• Legal system: civil law system

A tourist cityVisitors 2010 2011Total 24 965 411 28 002 279From Malaysia

338 058(1.4%)

324 509(1.2%)

Macao WORLD HERITAGEThe Historic Center of Macao

• the perfect crossroad for the meeting of East and West cultures

Brief Introduction of Macao’s Personal Data Protection Act

Passed: August 2005Entry into force: February 2006It covers both public and private sectorsIt covers automatic data processing, as well as

systematic manual processingIt relates to the EU DirectiveSupervising authority – GPDP

Definition of personal data

• any information of any type, irrespective of the type of medium involved, including sound and image, relating to an identified or identifiable natural person

Legitimacy of data processing• the data subject has unambiguously given his consent,• or processing is necessary for: (1) performance of contracts or to take steps prior to

entering into a contract; (2) compliance with a legal obligation; (3) protecting the vital interests of the data subject who is

incapable of giving his consent; (4) performance of a task in the public interest or in the

exercise of official authority; (5) pursuing the legitimate interests of the controller not

overridden by the interests for fundamental rights, freedoms and guarantees of the data subject.

Sensitive data

• personal data revealing philosophical or political beliefs, political society or trade union membership, religion, privacy and racial or ethnic origin, and the processing of data concerning health or sex life, including genetic data

Legitimacy of data processing: Additional

• Data processing is prohibited, except:(1) authorised by a legal provision;(2)on important public interest grounds, and

authorised by the public authority;(3)the data subject’s explicit consent. (4)Some other derogations defined in the PDPA

(Article 7)

Suspicion of illegal activities, criminal and administrative offences

• personal data relating to persons suspected of illegal activities, criminal and administrative offences and decisions applying penalties, security measures, fines and additional penalties

Legitimacy of data processing: Additional

• Defined in Article 8 of the PDPA

Data quality

(1) lawfulness, principle of good faith; (2) for specified, explicit, legitimate purposes;

not incompatible with those purposes; (3) adequate, relevant and not excessive; (4) accurate(5) kept for no longer than is necessary for the

purposes

Rights of the data subject

• Rights to information• Right of access, rights to rectify• Right to object• Right not to be subject to automatic individual

decisions• Rights to indemnification

Data security

• General security – technical and organizational measures (Article 15)

• Special security measures (Article 16)• Processing by a processor (Article 17)• Professional secrecy (Article 18)

Transfer of data outside Macao

• The destination shall have a adequate level of personal data protection

• Derogations: - with notification to GPDP- Authorized by GPDP

Sanctions

• Administrative offences (fine from MOP $4,000 to MOP $200,000)

• Crimes (maximum: 4 years imprisonment)• Additional penalties (prohibition of

processing, blocking, erasure or destruction of data, public warning)

The roles of GPDP

• Supervision and coordination• Establishment of regimes (including issuing

guidelines)• Handling complaints and enquiries (Both data

controllers and data subjects need that)• Publicity & Education (Privacy awareness is

always important)• Analyses & research (There is always

something new)

Work statistics (2007-2011)

Works Number of cases

Investigations 253Consultations 2296Notifications 1129Applications for Opinion 154Applications for Authorizations 244

Approaches of implementation

Principle

• Education first

Considering:• History• Culture• Readiness of data controllers• Awareness of the general public

Promotion - Work on public education

Targets :• data controllers• general public• youth

Means 1 – Understanding the PDPA

• Briefing sessions• Seminars• Training courses• Conferences

From 2007-2011

• Sessions: more than 230• Attendees: more than 9000

Means 2 – Publications

• Annual Reports• Newsletters• Booklets and Pamphlets• Column stories in newspaper - “Privacy & You”

Means 3 – Videos

• Video clips competition• Advertising videos

Means 4 – Promotional items

• Distributed in different occasions• Attract different target population• An effective marketing approach

Means 5 – Website www.gpdp.gov.mo

• To provide basic knowledge and information• To provide case summaries• To provide our legal opinions• To provide our guidelines• To provide translation of international

documents• In different languages

Supervision - Work on enforcement

Some statistics

• Investigations

Year Numbers

2007 22

2008 35

2009 47

2010 63

2011 86

Some case highlights

Right to object:

• A bank continued to send SMS to a former client who had exercised his right to object and refuse to receive any marketing messages from the bank. The bank was sanctioned with MOP $4,000 fine.

Principle of proportionality:

• A self-employed decoration contractor X tried to collect unsettled payment from citizen Y in the decoration work of Y’s residence. X held a press conference and disclosed Y’s residential address in full.

(cont.)• This Office held the opinion that X’s disclosure

of Y’s residential address in full was a violation of the principle of proportionality, and imposed a MOP $4,000 fine on X.

• For Y’s complaint against two newspapers on their reports with his residential address in full, this Office held the opinion that the freedom of press was protected by Publication Law, Y could only lodge his compliant to court by civil litigation.

Supervision (registration) – Notification and authorization

Notification

• The controller must notify GPDP in written form within eight days after the initiation of carrying out any wholly or partly automatic processing operation or set of such operations intended to serve a single purpose or several related purposes.

Exemptions issued by GPDP

• The public authority may authorise the simplification of or exemption from notification for particular categories of processing which are unlikely, taking account of the data to be processed, to affect adversely the rights and freedoms of the data subjects and to take account of criteria of speed, economy and efficiency.

Current exemptions• Remunerations, Payments and Welfare Benefits• Administration of Employees and Service Providers• Non-Profit Legal Person’s Collection of Membership Fees or

Contact with Members• Billing and Contact Information of Clients, Suppliers and

Service Providers• Relating to Students• Relating to Users of Libraries and Archives• Registration of Entries and Exits of Visitors• Recruitment• Admission of students

Major difficulties

• The existing data processing when the PDPA came into force

• Lack of a secondary legislation to define the detail procedures

Implementation of the registration scheme - notification

• First of all, “notification” requirements apply to all new data processing after the PDPA’s coming into force.

• Secondly, GPDP needs to deal with the existing processing.

• The first stage (completed): progressive implementation in the public sector, issuance of exemptions

• The second stage: progressive implementation in the private sector – now drafting a secondary legislation

Authorization• The processing of sensitive data• The processing of personal data relating to credit

and the solvency of the data subjects. • Combination / interconnection of data• Change of purpose• Extending the period of data retention• Transferring personal data to destinations

outside Macao without adequate level of personal data protection.

• First of all, “authorization” requirements apply to all new data processing after the PDPA’s coming into force immediately. No new data processing requiring GPDP’s authorization should be started without it.

• Existing ones without authorization by legal provisions should be either stopped or authorized by GPDP.

• “combination” in public sector is a problem.

Combination/interconnection of data

• “combination of data” shall mean a form of processing which consists of the possibility of correlating data in a filing system with data in a filing system or systems kept by another or other controllers or kept by the same controller for other purposes

The coordination on interconnections within the public sector

• Requested all government departments to check whether they had interconnections before the PDPA came into force.

• If yes, check whether there is a legislation allowing it.

• If not, they must submit application.• Some departments decided to stop the

practice, some got our authorization.

Coordination – guidelines• Protection of Personal Data in the Workplace:

Guidelines for Employee Monitoring • Processing clients’ data by the employment

agencies • Using attendance devices of biometric

technologies• Data retention in public agencies• The right to information in indirect collection of

personal data.• Publication of personal data on the Internet.

Code of conduct

• A self-regulation model• It shall be drawn by the professional

associations and other bodies representing some categories of data controller, not GPDP

• GPDP did encourage some industries to do so, but no successful case yet

Thank You