By Shamma Iqbal
South Korea’s new comprehensive privacy law, the Personal Information Protection Act, promulgated on 29 March 2011, is now in effect. The Korean government allowed a grace period for companies to comply with the provisions of the new law and this came to an end on March 31st 2012. In relation to the private sector, the new legislation replaces some aspects of the Act on Promotion of Information and Communications Network Utilization and Information Protection (ICN Act). Described by privacy commentators as one of the strictest privacy laws in the world, the new legislation reflects the baseline standards of the OECD Privacy Guidelines and the APEC Privacy Framework (2004) to a large extent and also appears to exceed those requirements in several respects. This is an introduction to some of the core provisions of the new legislation:
1. The law permits minimum collection of personal information necessary to fulfill the purposes of the processing; the law also requires that organizations make efforts to process personal data in anonymous form where possible.
2. There should be no refusal of services as a result of an individual’s decision not to provide unnecessary data. Withholding services on the basis that the individual has chosen not to provide information that is not legally mandatory would amount to a breach of the legislation.
3. The new law creates a special sub-category of “sensitive” data. The processing of sensitive personal data requires consent.
5. Organizations are required to obtain consent for disclosure of personal information to third parties and these third party recipients should be identified.
6. Individuals should be informed when the handling of their personal data is subcontracted and such subcontractors should be identified.
7. Organizations are required to designate an internal data privacy officer to oversee data processing activities. It appears that this requirement applies regardless of the size of the organization.
8. Prompt reporting of data breaches to affected individuals is compulsory under the new law. Organizations are also required to notify the Korean Ministry of Public Administration and Security (MOPAS) and other relevant enforcement authorities if the data breach exceeds a certain scale.
9. Detailed security measures are mandated by executive orders.
10. Overseas exports of personal data require consent.
The expectation is that the requirements of the new legislation will be rigorously enforced given Korea’s historically proactive approach to privacy compliance and thus businesses need to be taking these compliance requirements seriously. An English version of the Personal Information Protection Act is available at: http://koreanlii.or.kr/w/images/9/98/DPAct1110en.pdf (please note that this is not an official translation of the statute).