萬國法律事務所

The recent proposed amendments to the Personal Data Protection Law, which have just passed the second level of review by the Legislative Yuan, are causing a public stir. Consequently, the Executive Yuan and the Legislative Yuan have decided to revise the amendments and withhold the passage of the amendments to the Law. The Legislative Yuan decided to present the revised amendments for a second review. Administrative departments have also been urged to study the impact of the new amendments on the right of free speech and to provide appropriate suggestion regarding the amendments.

The Legislative Yuan recently passed the second level of review of the amendments, among which, the most significant amendment is the requirement to seek approval before exposing an individual’s personal data. The draft stipulates that when a government or non-government body requests personal information of an individual, it must clearly convey the purpose of the request and that the media, when releasing news that contains a person’s personal data, will need to inform that person and seek permission from the person before publication, unless, (i) such information has already been publicized by the person involved, or (ii) the press is unable to inform to person involved, or (iii) the exposure is public interest or for use in connection with academic purposes.

Furthermore, according to the draft, if the press uses personal data without permission, a fine of NT$ 20,000 (approximately US$ 620) to NT$ 500,000 (approximately US$ 15,525) may be imposed. In addition, if such breach results in damages to another, the offenders can also be prosecuted criminally.

Social media networks, such as Facebook, will also be affected by this new amendment. A simple act of posting a friend’s photo on one’s Facebook profile can constitute as a breach of the Law according to the amendments of the Law if the photo was posted without permission.

The draft Law was amended from the current Data Protection Law, which only governs information processed by computer and parties such as government bodies, private investigators, hospitals, schools, the financial sector, the media and information technology sectors. These are sectors that obtain personal data through the course of business and usage for purposes other than business is considered illegal.

However, the problem with the new amendments is that it has expanded the scope to include private persons, yet it fails to include exceptions for “reasonable uses of information”. Thus, the simple act of posting a friend’s photo on Facebook or passing one’s Facebook account to another, even without any ill intention, could be deemed a breach of the law and subject a person to criminal prosecution.

Many sectors of society are outraged by the draft amendments and have challenged the same as an infringement of the right of free speech provided in the ROC Constitution. Specifically, the media feels that its freedom of press is directly threatened. In the future, the press will not be able to report on matters such as government corruption without fear of breaching the Law where such report may involve the exposure of a certain individual’s personal data.

Even though the initial intention of the amendments is to provide more comprehensive protection of the right of privacy, with all of the negative comments and objections from the public, the government is working to find a balance in protecting the right of privacy without undermining the freedom of speech.