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Taiwan: Proposed Changes to Data Protection Act

(Apr. 30, 2012) On April 11, 2012, Taiwan's Ministry of Justice sent to the Executive Yuan (Cabinet) a proposed amendment to the Personal Information Protection Act (PIPA). Although the law was adopted in May 2010, it has not yet come into force. (Amendments to Long-Delayed Data Protection Law Proposed, Winkler Partners website (Apr. 17, 2012).)

Revisions of three provisions of the PIPA have generated particular interest. First, article 6 currently prohibits the collection, processing, or use of a person's medical history, genetic information, sexual life information, health examination records, and prior criminal records, except when: 1) clearly stipulated by law, 2) needed by government or nongovernment agencies to carry out their official duties or legally mandated obligations, respectively, and where there are appropriate security safeguard measures; 3) personal information is voluntarily made public by the party or lawfully made public by others; or 4) government agencies or academic research organizations, for statistical or academic research needs based on medical, health, or crime prevention objectives, and after going through a set procedure, collect, handle, or use personal information. (Ko-jen tzu-liao pao-hu fa [Personal Information Protection Act] (May 26, 2010), Law & Regulations Database of the Republic of China [toggle for English]; Personal Information Protection Act Implementation Plan and Outlook [in Chinese], Ministry of Justice (Feb. 16, 2012).)

Reportedly, article 6 “was construed during the public hearings as meaning that patients would not be able to take test results from one hospital to another.” Therefore, additional exceptions have been proposed for insertion into article 6, namely, when necessary to promote the public interest or when the collectors of such sensitive personal information have obtained the consent of the individual concerned. (Amendments to Long-Delayed Data Protection Law Proposed, supra; Su Hsiu-hui, Personal Data Law Amendment/ Banks Need Only Give Advance Notice of Use of Personal Data [in Chinese], UNITED DAILY NEWS (Apr. 16, 2012).)

The second amendment of interest relates to article 41, paragraph 1, of the current PIPA, which imposes a sentence of imprisonment for up to two years, detention, and/or a fine of up to NT$200,000 (about US$6,800) for those who, in violation of certain provisions of the Act, cause damage to other persons through collecting, processing, or using their personal data, but without the intent to profit from such acts. The Ministry of Justice draft amendment eliminates this provision; instead, violators would be subject to Civil Code provisions on compensation. (Su, supra.) Paragraph 2 of article 41 would apparently remain in place, however. It provides for a punishment of up to five years in prison and a fine of up to NT$1 million for violation of the relevant provisions with the intent to profit. (Ko-jen tzu-liao pao-hu fa, supra.)

Finally, article 54 would be amended to relax the current notification requirement, whereby any party, such as a financial institution, that directly or indirectly collected personal data not provided with an individual's consent before the PIPA enters into force, must inform the affected individual no later than one year after its entry into force. The amendment would delete the one-year limit, so that the financial institution would merely have to inform the individual prior to using or processing his or her personal data. The purpose of relaxing the notification requirement is to lessen the burden that the stipulation imposes on financial institutions, particularly banks and credit card companies. The latter, for example, have complained that they would be unable to meet the one-year notification requirement in connection with their issuance of some 60 million cards. (Amendments to Long-Delayed Data Protection Law Proposed, supra.)

The draft amendment is reportedly being reviewed by two Ministers Without Portfolio; it then must be approved by the Cabinet and adopted by the legislature in order to become law. If the legislature does not enact the amendment by May 31, which is the end of the current legislative session, “the non-controversial provisions of the law will take effect first with the more controversial parts held in abeyance until the Legislature amends them.” (Id.)

It may be noted that the draft detailed rules of implementation of the PIPA, announced on October 27, 2011, brought all of the newly developing Internet business modalities, including Internet sales, Google Map, Internet shopping, etc., under the law's supervision, and also expanded the law's application to all natural persons, legal persons, groups, and industries. (Lü Hsüeh-hui, Personal Data Law Expands Application, Staked to Be on Its Way July 1 [in Chinese], CHINA TIMES (Feb. 13, 2012).)