With the Malaysian Personal Data Protection Act 2013 (“PDPA”) having come into force on 15 November 2013, Jillian Chia, Senior Associate at Skrine, provides an overview of the salient provisions in the Regulations and Orders.
She notes that that there is a grace period for compliance with the PDPA. where a data user has collected personal data before 15th November 2013. However, this appears to imply that for personal data collected after 15 November 2013 onwards, compliance is required immediately.
The Personal Data Protection Regulations 2013 (“Regulations”):
The Regulations supplement and clarify certain provisions of the PDPA, such as the Personal Data Protection Principles. In particular, the Regulations stipulate that
- In respect of consent from the data subject, such consent must be capable of being recorded and must be maintained properly by the data user. If consent is sought by way of a form which is also used for other matters, the consent for use of personal data must be presented, distinguishable in its appearance from such other matter.
- Where the data subject is under 18 years of age, consent shall be sought from the parent, guardian or person who has parental responsibility over the data subject.
- The burden of proof for consent lies on the data user.
- In respect of the notice required to be provided to the data subject under the Notice & Choice Principle which applies to the data subject’s right to access and correct his data, the data user must provide certain prescribed details such as the designation of the contact person, phone number, fax number, email address and any other related information.
- A data user is also required to keep and maintain a list of disclosures to third parties.
- Data users are also required to develop and implement a security policy and such security policy shall comply with the security standard set out from time to time by the Commissioner. Data users must ensure that its data processors comply with such security policy.
- The Commissioner has been given the power to set standards for security, retention and data integrity for personal data.
- In respect of the Access Principle, certain prescribed procedures have been set out where access or correction is requested by the data subject (i.e. whether the data subject requires a copy of the personal data; data user has to acknowledge receipt of the request). The Regulations also set out the information which may be requested by a data user when processing an access request.
- The Commissioner has the power to conduct inspections and personal data systems shall at all reasonable times be open to the inspection of the Commissioner or any inspection officer. The Regulations spell out the documents which may be required to be produced during an inspection, such as, record of consents obtains, record of the notice issued to data subjects, list of disclosures to third parties, security policy, amongst others.
- Penalties are also prescribed for contravention of specific sub-regulations.
Personal Data Protection (Class of Data Users) Order 2013 (“Data Users Order”)
The Data Users Order lists the classes of data users who have to be registered with the Personal Data Protection Commissioner. The sectors which have been specified are:-
- Banking and Financial Institutions
- Tourism and Hospitalities
- Direct Selling
- Services, namely organisations carrying on the following businesses: legal, audit, accountancy, engineering or architecture, retail or wholesale dealing as defined under the Control Supplies Act 1961, and private employment agencies
- Real Estate
It appears that generally the entities holding licenses in the relevant sectors are the data users who have to be registered.
Under the PDPA, a data user who falls within the prescribed classes is required to register itself within 3 months of the PDPA coming into force (so the deadline for compliance is 3 months from November 15, 2013).
Personal Data Protection (Registration of Data User) Regulations 2013 (“Data User Regulations”)
The Data User Regulations set out the procedures for application of registration with the Personal Data Protection Commissioner for data users who belong to the class of data users specified under the Data User Order. The Data User Regulations deal with matters such as the documents which will have to be submitted, period of validity of the certificate of registration, renewal of the certificate of registration and consequences for failure to renew, procedures for change of particulars in the certificate of registration and all other matters relating to the certificate of registration.
Personal Data Protection (Fees) Regulations 2013
These Regulations prescribe the fees applicable for data access requests and for inspection of the general register, to inspect the grounds of decision of the Commissioner, to make copies of the register and to take extracts from a copy in the register.
Appointment of Commissioner
Abu Hassan bin Ismail has been appointed as the Personal Data Protection Commissioner with effect from 15 November 2013.