Effective Approach in Implementation of Data Protection Law: Macao’s Experiences

1. Effective Approach in Implementation of Data Protection Law: Macao’s Experiences Ken Yang Office for Personal Data Protection Macao SAR

2. Macao at a Glance

3. 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

4. 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

5. A tourist city

6. Macao WORLD HERITAGEThe Historic Center of Macao • the perfect crossroad for the meeting of East and West cultures

7. Brief Introduction of Macao’s Personal Data Protection Act

8. Passed: August 2005 • Entry into force: February 2006 • It covers both public and private sectors • It covers automatic data processing, as well as systematic manual processing • It relates to the EU Directive • Supervising authority – GPDP

9. 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

10. 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 interestsof the controller not overridden by the interests for fundamental rights, freedoms and guarantees of the data subject.

11. 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

12. 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; • the data subject’s explicit consent. • Some other derogations defined in the PDPA (Article 7)

13. 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

14. Legitimacy of data processing: Additional • Defined in Article 8 of the PDPA

15. 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

16. 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

17. 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)

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

19. 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)

20. 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)

21. Work statistics (2007-2011)

22. Approaches of implementation

23. Principle • Education first Considering: • History • Culture • Readiness of data controllers • Awareness of the general public

24. Promotion - Work on public education Targets : • data controllers • general public • youth

25. Means 1 – Understanding the PDPA • Briefing sessions • Seminars • Training courses • Conferences

26. From 2007-2011 • Sessions: more than 230 • Attendees: more than 9000

27. Means 2 – Publications • Annual Reports • Newsletters • Booklets and Pamphlets • Column stories in newspaper - “Privacy & You”

28. Means 3 – Videos • Video clips competition • Advertising videos

29. Means 4 – Promotional items • Distributed in different occasions • Attract different target population • An effective marketing approach

30. 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

31. Supervision - Work on enforcement

32. Some statistics • Investigations

33. Some case highlights

34. 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.

35. 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.

36. (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.

37. Supervision (registration) – Notification and authorization

38. 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.

39. 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.

40. 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

41. Major difficulties • The existing data processing when the PDPA came into force • Lack of a secondary legislation to define the detail procedures

42. 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

43. 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.

44. 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.

45. 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

46. 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.

47. 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.

48. 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

49. Thank You