CMS Expert Guide: Data Law Navigator

Data protection

1. Local data protection laws and scope

  • Law No. 29733, Personal Data Protection Law (“Personal Data Protection Law”), which includes the provisions (such as principles, obligations, data bank registration and fines) applicable in Peru regarding personal data protection.
  • Supreme Decree No. 003-2013-JUS, Regulation of the Personal Data Protection Law (“Regulations”), which details with further precision the provisions established in the Law.
  • Directorial Resolution No. 019-2013-JUS/DGPDP, Guidelines on Security of Information (optional and guidance standard), which provides guidance on the conditions, requirements and technical measures to be considered in order to comply with security measures for the personal data protection.  
  • Directorial Resolution No. 02-2020-JUS/DGTAIPD, Guidelines on the processing of personal data using video-surveillance systems (optional and guidance standard), which aims to establish guidelines for the treatment of personal data that are captured through video surveillance systems for security and labour control purposes.
  • Resolution No. 0326-2020-JUS, Methodology for the Calculation of Personal Data Protection Fines, which aims to provide uniform, predictable and objective guidelines and criteria regarding the imposition of fines.
    The main provisions established in the above-mentioned data protection laws are as follows: 
  • The data protection laws apply to information relating to data subjects who are identified or identifiable (natural persons).
  • The data protection laws apply to automated and non-automated data processing operations. 
  • The party determining the purposes and means of processing personal data established in Peru (“data controller”).
  • The party processing the data on behalf of the data controller (“data processor”).
  • The party processing the data on behalf of the data processor (“data sub-processor”). 

The Personal Data Protection Law and its Regulations applies to any person, legal entity or public entity that processes personal data:

  • within national territory;
  • when carried out by a data processor, regardless of its location, in the name of a data controller established in Peru;
  • when the data controller is not established in Peru, but the Peruvian legislation is applicable by contractual or international law; and
  • when the data controller is not located in Peru but uses means located in the territory, unless such transit does not involve data processing.

Thus, the existence of special rules, even when they include regulations on personal data, does not exclude compliance with the Personal Data Protection Law.

The principal data protection legislation is Law 19.628 “on protection of private life” (also known as the Chilean Data Protection Law or “CDPL”). 

There are also two other legal provisions that regulate some aspects of personal data processing:

  • The Chilean Constitution, in its article 19 No. 4 and No. 5, which enshrine the right to privacy, as well as the protection of personal data, and also;
  • Law 19.496 (Consumer Protection Law) that establishes the regulation regarding unsolicited commercial marketing communications for consumers.

The Personal Data Protection Act 2012 (PDPA) is the data protection law that governs the collection, use, disclosure and handling of personal data. It recognises both the rights of individuals to protect their personal data, including rights of access and correction, and the needs of organisations to collect, use or disclose personal data for legitimate and reasonable purposes.

The PDPA also provides for the establishment of a national Do Not Call (DNC) Registry. The DNC Registry allows individuals to register their Singapore telephone numbers to opt out of receiving marketing phone calls, mobile text messages such as SMS or MMS, and faxes from organisations.

Some key subsidiary legislation that operates alongside the PDPA include the Personal Data Protection Regulations 2021, Personal Data Protection (Notification of Data Breaches) Regulations 2021 and Personal Data Protection (Do Not Call Registry) Regulations 2013.

Personal Data Protection Act 2012: https://sso.agc.gov.sg/Act/PDPA2012 

2. Data protection authority

Chile does not have a Data Protection Authority.

The Personal Data Protection Commission (PDPC) 

3. Anticipated changes to local laws

There are no anticipated changes to local laws. 

Congress is discussing a new law that will replace the current one and raise the protection standards.

Anticipated changes:

  • A new legal definition: The objective will be to update and expand it, in accordance with international standards;
  • Legitimate Basis for Processing: A more robust basis for processing has been incorporated;
  • The creation of a Data Protection Authority: A National Directorate for Personal Data Protection with the obligation to register databases;
  • Cross-Border Data Transfer: It will be regulated for the first time. According to the current law, there is no statement that controls cross-border data transfers.
  • A new set of infringements;
  • A complaint procedure: This procedure will consist of three steps. First, a direct claim to the data processor. Secondly, an administrative claim before the new National Directorate for Personal Data Protection, and finally, a judicial claim that disputes the decision of the National Directorate for Personal Data Protection.

The following changes to the PDPA have been passed by Singapore’s Parliament, however they have not yet come into effect:

  • Data portability – mandatory obligation for organisations to provide an individual’s data, at the individual’s request, to another organisation in a commonly used machine-readable format; 
  • provisions which exempt organisations from the proposed data portability obligation and the obligations to provide an individual with access to or to correct personal data at the individual’s request in respect of “derived personal data” (i.e. new data that is created through the processing of other data by applying business-specific logic or rules); and
  • Higher penalties – an increase in the financial penalties that may be imposed on organisations: in the case of a breach of the data protection provisions, 10% of its annual turnover in Singapore or SGD 1m, whichever is higher; and in the case of a breach of the prohibitions on the use of dictionary attacks and address-harvesting software, 5% of its annual turnover in Singapore or SGD 1m, whichever is higher. 

4. Sanctions & non-compliance

Administrative sanctions:

The DPA has powers to impose the following sanctions: 

  • Fines of up to approximately USD 120,500. Fines will depend on the type of infraction committed according to the Methodology for the Calculation of Personal Data Protection Fines. 
  • Corrective measures, such as the obligation to register a database, communicate the cross-border flow, delete personal data, among others.
Criminal sanctions:

The Criminal Code details certain offences in the field of personal data:

  • Illegal traffic of personal data: the person who illegitimately commercialises non-public information related to the personal and sensitive sphere, will be punished with imprisonment of not less than two nor more than five years.
  • Dissemination of images, videos or audio with sexual content: whoever reveals, disseminates or commercialises images (or audio without the person's consent) shall be punished with imprisonment of not less than two nor more than five years and with thirty to 120 days’ fine.
  • Disclosure of personal and family privacy: anyone who discloses aspects of someone personal or family lives because he/she was able to know for (i) the work he has done for the affected party or (ii) being someone of confidence shall be punished with imprisonment of nor more that on year.
  • Improper use of computer files: anyone who improperly uses any file containing data relating to political or religious beliefs and other aspects of the intimate life of one or more persons shall be liable to imprisonment for a term of not less than one year and not more than four years.   
Others: 

In addition to making a complaint to the DPA, a data subject may also make a claim damages in court, which may involve material and moral damages.

Since there is no Data Protection Authority, sanctions can only be imposed by a judge (in a civil procedure). To this end, Law 19.628 establishes a special procedure called “habeas data”. However, it is common practice to also use the “Remedy for the Protection of Constitutional Rights”, a constitutional action, to protect the fundamental rights affected by an illegal or arbitrary treatment of personal data.

Administrative sanctions:
  • In relation to the enforcement of the data protection provisions, the PDPC may issue fines of up to SGD 1m for each breach.
  • In relation to the enforcement of the DNC Registry provisions and the prohibition on use of dictionary attacks and address-harvesting software, the PDPC may issue a fine up to an amount not exceeding SGD 200,000 in the case of an individual, and up to SGD 1m in any other case.
  • The PDPC may also issue directions for non-compliance, which includes directions to stop collection, use or disclosure of personal data, and to destroy personal data collected. 
Criminal sanctions:
  • Imprisonment for a term not exceeding: 
    • Two years – for knowing or reckless unauthorised disclosure of personal data; knowing or reckless unauthorised use of personal data for a gain or to cause a harm or loss to another person; or knowing or reckless unauthorised re-identification of anonymised information;
    • 12 months – for unauthorised request to access or correct personal data about another individual; obstructing or hindering the PDPC in the exercise of its powers or duties; knowing or reckless false statement made to the PDPC; or knowing attempts to mislead the PDPC; or
    • Six months – for neglect or refusal to provide any information or produce any document to the PDPC or attend before the PDPC without reasonable excuse; or unauthorised use of a symbol or representation identical to or which resembles that of the PDPC. 
  • Criminal fines may also be imposed and varies depending on the specific offence, although in general not exceeding SGD 10,000 in the case of individuals, and SGD 100,000 in the case of organisations.
Others: 
  • Individuals have a private right of action and may seek relief by way of injunction, declaration or damages for damages or losses suffered directly as a result of a contravention of the PDPA.     

5. Registration / notification / authorisation

The Personal Data Protection Law does not require prior notification or registration to the DPA for any data processing activities.

There is no registration or notification obligation since there is no data protection authority in Chile and the law does not establish this requirement.

There is no requirement for organisations to register with the PDPC. However, voluntary registration of the Data Protection Officer is encouraged. 

6. Main obligations and processing requirements

Consent requirements

Personal data can only be processed with the consent of its owner, which must be prior, informed, express and unequivocal.

Consent may be obtained through written or verbal means. In the case of sensitive data, consent must be given in written form.

Information requirements

The data controller must comply with the following information on the data subjects: (i) the identity and address of the data controller and data processor, if applicable, (ii) the purpose of the personal data processing, (iii) who the recipients may be (national or international transfers), (iv) the existence of the data bank where the information will be stored, (v) the mandatory or optional nature of the proposed questionnaire, (vi) any consequences of providing personal data and any refusal to do so, (vii) transfer of personal data, (viii) time holding personal data, and (ix) means and possibility of exercising rights of access, rectification, opposition and cancellation.

General obligations

The data controller and the data processor, when applicable, must comply with the following obligations:

  • Not to collect personal data by fraudulent, unfair or illegal means;
  • Collect up-to-date, necessary, relevant and adequate personal data in connection with a determined, explicit and legal purpose;
  • Not to use personal data for any means other than the those for which it was collected in the first place unless such data undergoes an anonymisation or dissociation process;
  • Store personal data in such a manner that allows data subjects to enforce their rights;
  • Delete or replace personal data upon knowledge of its inaccuracy or incompleteness;
  • Delete personal data when it is no longer necessary for the purpose for which it was collected, unless such data undergoes an anonymisation or dissociation process;
  • Provide the information that the DPA requests.

Data processing: 

According to the CDLP the processing of all data shall be carried out:

  • In a manner consistent with the law;
  • For the purposes permitted by the legal system; and
  • With attention to the full exercise of the fundamental rights of the data subject.

Consent of the data subject: Article 4 of the law establishes that the processing of personal data is permitted only when the law authorises it, or the subject expressly consents or authorises it. However, the law does not provide a definition of what the “authorisation” or “consent” of the data subject means or entails.

Quality: Article 6 of the law establishes that personal data will be: destroyed or cancelled when the purpose of its storage has no legal basis or when it has expired; modified when it is inaccurate, inexact, misleading or incomplete; and blocked when it cannot be destroyed or cancelled, and its accuracy cannot be established or whose validity is doubtful.

Confidentiality: Article 7 of the law establishes that people who work in the processing of personal data, in the private and public sector, must maintain confidentiality when the data comes from sources not accessible to the public, as well as with respect to other data information related to the data bank; an obligation that does not cease upon completion of its functions or activities in that field.

Purpose: Personal data will be used only for the purposes for which it was collected, unless it is obtained from sources accessible to the public (Article 9 of the law)
Personal data: Article 10 of the law prescribes that sensitive personal data, defined as any information regarding characteristics of a physical or moral nature of an individual or facts or circumstances of his private life, such as personal habits, racial or ethnic origin, ideologies and political opinions, religious beliefs or convictions, physical or mental health and sexual life, cannot be processed unless:

  • The law authorises it;
  • The data subject expressly accepts said processing;
  • Such data is necessary to establish or grant health benefits that pertain to the respective data subject.

Data security: Article 11 of the law establishes that those responsible for the registries or personal data must “take care of them with due diligence” and be liable for damages.

Organisations, wherever located, that process personal data of individuals in Singapore are required to comply with the PDPA.

The PDPA sets out ten main data protection obligations which are to be complied with when processing personal data.

Under the PDPA, to collect and process personal data lawfully, organisations must comply with the following obligations:

  1. Consent Obligation – to obtain the consent of the individual; 
  2. Purpose Limitation Obligation – to collect, use or disclose personal data about an individual for the purposes that a reasonable person would consider appropriate in the circumstances and for which the individual has given consent;
  3. Notification Obligation – to notify individuals of the purposes for which the organisation is intending to collect, use or disclose their personal data on or before such collection, use or disclosure of personal data;
  4. Access and Correction Obligation – upon request, provide information in which the individual’s personal data has been or may have been used or disclosed and to correct any error or omission in an individual’s personal data;
  5. Accuracy Obligation – make reasonable effort to ensure that personal data collected by or on behalf of the organisation is accurate and complete;
  6. Protection Obligation – make reasonable security arrangements to protect the personal data that the organisation possesses or controls;
  7. Retention Limitation Obligation – cease retention of personal data or remove the means by which the personal data can be associated with particular individuals when it is no longer necessary for any business or legal purpose;
  8. Transfer Limitation Obligation – ensure that the standard of protection provided to the personal data transferred to another country will be comparable to the protection under the PDPA; 
  9. Data Breach Notification Obligation – assess whether a data breach is notifiable and notify the affected individuals and/or PDPC where it is assessed to be notifiable; and
  10. Accountability Obligation – implement policies and procedures to meet its obligations under the PDPA, and make information about its policies and practices publicly available and to appoint a data protection officer.

Organisations that have contracted to process personal data on behalf of another organisation may be considered a “data intermediary”. 

A data intermediary that processes personal data pursuant to a written contract will only be responsible for the Protection Obligation, the Retention Obligation and the Data Breach Notification Obligation – protecting the personal data in its care, ensuring that the personal data is not retained by the data intermediary when there is no longer a business or legal need to do so, and notifying the organisation or public agency for which it is processing personal data on behalf of where the data intermediary discovers that a data breach has occurred.

7. Data subject rights

The following are the rights granted to data subjects:

  • Right to request information;
  • Right of access to personal data;
  • Right to update, include or rectify personal data;
  • Right to delete personal data;
  • Right to prevent the supply of personal data;
  • Right to oppose to the processing of personal data;
  • Right of objective processing;
  • Right to claim protection; and
  • Right to be indemnified.

Access to data

The rights pertaining to all data subjects to demand from the person responsible for any public or private data bank, any information that pertains to them, its source, the purpose for collecting, the legality of the data processing and the name of the individuals or entities to which the data is regularly transmitted. 

Correction and deletion

Correction or modification: The right of all data subjects to request the modification of inaccurate, incomplete, misleading or outdated data that concerns them.

Cancellation

The right of all data subjects to demand the destruction or cancellation of personal data when the purpose of its storage has no legal basis or when it has expired.
Data subjects have the right to request the cancellation of data, if the data storage is not authorised by law or if the authorisation has expired. The data subject is also entitled to exercise this right even if this data has been voluntarily provided or is being used for commercial communications, and he no longer wishes to appear in such records, temporarily or permanently.

Marketing objection

The Consumer Protection Law regulates unsolicited commercial or marketing communications sent by email to consumers. That communication must obtain a valid email address to which the recipient may request the suspension of future communications.

Under the PDPA, individuals have the following rights:

  • private right of action for direct loss or damage suffered directly as a result of the contravention of the PDPA; 
  • right to ask the organisation to provide the contact of a person who can answer, on behalf of the organisation, their questions about the collection, use or disclosure of the personal data;
  • right to withdraw their consent for the collection, use or disclosure of their personal data by an organisation at any time, with reasonable notice;
  • right to request access to their personal data that an organisation possesses or controls, including to be provided with information about the ways in which such personal data has or may have been used or disclosed within the year before the request;
  • right to request an organisation to correct an error or omission in their personal data; and
  • right to file a complaint.

8. Processing by third parties

In general, the data processor must comply with the following obligations:

  • It is prohibited to transfer personal data for the provision of processing services to third parties, unless authorised by the data controller and the personal data subject has given his or her consent;
  • To carry out the processing of personal data according to the instructions of the data controller and exclusively for the purpose established in the agreement between the two;
  • In order to contract a data sub-processor, the data processor must have the data controller’s authorisation; 
  • The data processor may keep the data for a maximum of two years from the end of the last assignment;
  • The data sub-processor assumes the same obligations as the data controller and data processor in accordance with the Personal Data Protection Law and its Regulation;
  • Deploy the technical, organisational and legal measures that guarantee the security of personal data processing;
  • To maintain confidentiality regarding the personal data processing ordered by the data controller.

The laws do not regulate processing by third parties. According to Article 8 of the CDLP:
If the processing of personal data is carried out by virtue of a mandate, the general rules will apply. Also, the mandate must be granted in writing, regulating the conditions of use of the data.

An organisation must observe the same obligations under the PDPA in respect of personal data processed on its behalf by a data intermediary as if the personal data were processed by the organisation itself.

Data intermediaries that process personal data on behalf of and for the purposes of another organisation pursuant to a written contract will only be subject to the Protection Obligation, the Retention Obligation and the Data Breach Notification Obligation.

9. Transfers out of country

General rules

Two rules may apply to the data transfer outside the country: 

  • Personal data can be transferred to other countries whose protection level is adequate, according to the Peruvian Data Protection Law and its Regulation; and 
  • If the destination country does not have an adequate protection level, the recipient shall guarantee that the data processing will be carried out in accordance with the Peruvian Data Protection Law and its Regulation.

The law does not establish specific requirements or restrictions on transfers of personal data abroad.

However, the law contains rules for the automated transmission of data. Article 5 of the law prescribes that the person responsible for the database can establish an automated system for the transmission of personal data, provided that it adequately ensures the rights or interests of the parties involved and such transmission is strictly related to the duties and objectives of the participating entities.

In the case of a request for the transmission of personal data through an electronic network, the following shall be recorded:

  • Identification of the requesting party;
  • Reason and purpose of the request;
  • Type of data transmitted.

The law does not restrict transfers of personal data to third countries.

Since there are no data transfer restrictions, foreign companies mostly rely on standard clauses to binding corporate rules established by EU legislation. 

The transfer of personal data does not require registration/notification or prior approval from the relevant data protection authority or entity (given the fact that this body does not exist)

There is a limitation on transfers of personal data outside Singapore unless conditions are met. The transfers of personal data outside of Singapore requires the recipient of the personal data to provide safeguards equivalent to or greater than the requirements under the PDPA. The PDPA does not provide a white-list of countries that are deemed to have equivalent protection.

As such, organisations may transfer personal data overseas if they have taken appropriate steps to comply with the data protection provisions in respect of the transferred personal data while such personal data remains in their possession or control. When the personal data is transferred to a recipient outside of Singapore, organisations need to ensure that the recipient is bound by legally enforceable obligations to provide a standard of protection comparable to that under the PDPA. Such legally enforceable obligations include obligations imposed under law, any contract or binding corporate rules. In addition, organisations and data intermediaries that are certified under the Asia-Pacific Economic Cooperation Cross Border Privacy Rules System are deemed to be bound by legally enforceable obligations for the purpose of transfers of personal data outside Singapore. 

10. Data Protection Officer

There is no legal requirement to have a Data Protection Officer.

There is no legal requirement for the appointment of a Data Protection Officer.

Organisations are required to designate at least one individual, known as the Data Protection Officer (DPO), to oversee the data protection responsibilities within the organisation and ensure compliance with the PDPA. 

The business contact information of the DPO must be made available to the public. Although not a legal requirement, in practice, the PDPC does request for the information of the DPO to be registered with it.

11. Security

The data controller and the data processor must deploy organisational, technical, and legal measures to protect personal data against damage, loss, alteration or unauthorised access or processing. Personal data should be stored in databases that meet the following conditions:

  • Access control and management;
  • Management of privileges and their periodic verification;
  • Identification and authentication procedures;
  • Preservation, back-up and recovery of personal data;
  • Implementation of security measures for the storage of non-authentic documents;
  • Authorisation of reproduction or copying;
  • Access to records limited to authorised personnel; 
  • Generate a record of logical data interactions, including access information, time of login and logout; and
  • Apply security measures when personal data are transferred.

There are no legal requirements to take appropriate technical and security measures to protect personal data, but the data processor will always be liable for the damages caused by the leaking of information.

Organisations must protect personal data in their possession or under their control by making reasonable security arrangements to prevent unauthorised access, collection, use, disclosure, copying, modification, disposal or similar risks, and the loss of any storage medium or device on which personal data is stored.

12. Breach notification

In the field of personal data, there is currently no obligation to report a data breach to the Data Protection Authority applicable to private persons. This might change upon the passing of the Digital Confidence Law Regulations. 

However, in the cases of public entities, they must report any data breach involving personal data before the Data Protection Authority within 48 hours of becoming aware of the data breach. 

The Guidelines on Security of Information suggest keeping a record of incidents and actions taken that is documented, including notification to the data subject affected.

There is no legal obligation to notify to the authority data breach events.

Organisations are required to assess whether a data breach is notifiable, and to notify the affected individual(s) (where required) and/or the PDPC where the data breach is assessed to be notifiable. A data breach is assessed to be notifiable where: 

  • the scale of the data breach is of a significant scale, i.e. where it involves the personal data of 500 or more individuals; or 
  • the data breach causes significant harm to affected individual(s) where the compromised personal data relates to: 
    • the individual’s full name or alias or identification, in combination with: (a) financial information that is not publicly disclosed; (b) identification of vulnerable individuals; (c) life, accident and health insurance information that is not publicly disclosed; (d) specified medical information; or (e) information related to adoption matters; or (f) private key used to authenticate or sign an electronic record or transaction; or 
    • individual’s account identifier and data for access into the account.

Organisations must notify the PDPC as soon as practicable, but no later than 72 hours after it makes the assessment that a data breach is notifiable. Where required to notify the affected individual(s), the notification by organisations must be as soon as practicable (at the same time or after notifying the PDPC). 

In addition, data intermediaries that process personal data on behalf of and for the purposes of another organisation or a public agency are not required to assess whether the breach is notifiable or to notify the PDPC, but are required to notify that other organisation or public agency when a potential or actual data breach is detected without undue delay. 

Sector specific regulation, such as the Notices and Guidelines on Technology Risk Management issued by the Monetary Authority of Singapore, may also require breach notification under different timelines. 

13. Direct marketing

  • The Data Protection Law and its Regulations apply to all marketing and advertising activities involving personal data. Personal data means any information relating to an identified or identifiable natural person.
  • Article 58.1 of the Consumer Code (Law No. 29571) prohibits the use of aggressive or deceptive communication commercial practices without the data subject’s consent. In this regard, it is prohibited to use call centres, telephone call systems, sending text messages to cell phones or mass emails to promote products and services, as well as to provide telemarketing services to all those telephone numbers and email addresses of consumers who have not provided their prior, informed, express and unequivocal consent. In case of non-compliance, a fine of up to USD 600,000 can be imposed.

Direct marketing is regulated by the Consumer Protection Law. This Law regulates unsolicited commercial marketing communications sent by email to consumers, specifying, among other things, that such communications must contain a valid email address to which the recipient may request the suspension of further communications, also known as an opt-out system. From the moment the recipient requests the suspension of sending further emails, any communication or unsolicited email is prohibited by law.

The DNC provisions of the PDPA generally prohibit organisations from sending marketing messages (in the form of voice calls, text or fax messages) of a commercial nature to Singapore telephone numbers, including mobile, fixed-line, residential and business numbers, registered with the DNC Registry, unless the consumer has provided their clear and unambiguous consent in written or other accessible form for sending the marketing message to the Singapore telephone number.

The organisation may still send a direct marketing message where the sole purpose of the message is: 

  • to facilitate, complete or confirm an earlier transaction between the sender and recipient; 
  • to provide warranty information, product recall information, or safety or security information with respect to a product/service purchased by the recipient;
  • to deliver goods or services that the recipient is entitled to receive under an existing transaction; or 
  • related to the subject matter of an ongoing relationship between the sender and the recipient. 

Individuals may subsequently opt out of receiving direct marketing messages. Upon receiving an individual’s opt-out request, the organisation must stop sending such messages to that individual's telephone number 21 days after the opt-out.

Under the PDPA, organisations are not permitted to send, cause to be sent or authorise to send any message with a Singapore link to telephone numbers generated or obtained through the use of a dictionary attack or address harvesting software. This prohibition also applies with respect to electronic messages generated or obtained through the use of a dictionary attack or address harvesting software under the Spam Control Act. 

In addition, under the Spam Control Act, organisations are prohibited to send, cause to be sent or authorise to send any unsolicited commercial electronic messages in bulk if they do not comply with the statutory conditions (e.g. the message needs to include an email address to which the recipient may submit an unsubscribe request).

14. Cookies and adtech

Cookies, adtech and online marketing are not regulated directly by the Personal Data Protection Law. However, the Personal Data Protection Law and its Regulations will apply if personal identifiable information is collected and processed through cookies, adtech and online marketing. 

The CDPL does not directly regulate the use of cookies or similar technologies. 

The PDPA applies to the collection, use or disclosure of personal data using cookies.

However, consent is not required for cookies that:

  • do not collect personal data; and
  • for internet activities clearly requested by the user where the individual is aware of the purposes of such collection, use and disclosure and has voluntarily provided his personal data for such purposes.

If the individual configures his browser to accept certain cookies but rejects other, he may be found to have consented to the collection, use and disclosure of his personal data by the cookies he has chosen to accept. In such a circumstance, the PDPC has confirmed that consent can be implied. However, the failure of an individual to actively manage his browser settings does not imply that he has consented to the collection, use and disclosure of his personal data.

15. Risk scale

Moderate

Low

Moderate

Cybersecurity

1. Local cybersecurity laws and scope

The Emergency Decree No. 007-2020, Digital Confidence Law (“DCL”) aims to establish the necessary measures to ensure trust with digital services, including digital security.

The Supreme Decree No. 029-2021-PCM, Digital Government Law Regulations (“DGL”) regulates the management of new technologies in public entities during the provision of digital services to citizens, which includes the Digital Security Incident Response management. 

Chile does not have a specific law to regulate cybersecurity. However, many laws regulate some aspects of cybersecurity, for example:

  • Ley N°20.285/2008 - Law on access to public information
  • Ley N°17.336/2004 - Intellectual Property Law
  • Ley N°19.927/2004 - Law amending criminal codes regarding child pornography crimes
  • Ley N°19.880/2003 - Law that establishes the bases of the administrative procedures that govern the acts of State administration bodies
  • Ley N°19.799/2002 - Law on electronic documents, electronic signature and certification services of said signature
  • Ley N°19.223/1993 - Law on criminal figures related to computing
  • Ley N°20.478/2010 - Law on recovery and continuity on critical and emergency conditions of the public telecommunications system
  • Ley N°20.285/2008 - Law on access to public information
  • Ley N°17.336/2004 - Intellectual Property Law
  • Ley N°19.927/2004 - Law amending criminal codes regarding child pornography crimes
  • Ley N°19.880/2003 - Law that establishes the bases of the administrative procedures that govern the acts of State administration bodies
  • Ley N°19.799/2002 - Law on electronic documents, electronic signature and certification services of said signature
  • Ley N°19.223/1993 - Law on criminal figures related to computing
  • Ley N°20.478/2010 - Law on recovery and continuity of critical and emergency conditions of the public telecommunications system

The Cybersecurity Act 2018 governs the prevention, management and response to cybersecurity threats and incidents, and regulates owners of critical information infrastructure and cybersecurity service providers. The provisions generally apply to any critical information infrastructure, computer and computer system located wholly or partly in Singapore. The provisions also apply to the Singapore Government, except that the Singapore Government will not be liable to prosecution for an offence. 

The related regulations and code of practice that operate alongside the Cybersecurity Act 2018 are the Cybersecurity (Critical Information Infrastructure) Regulations 2018, Cybersecurity (Confidential Treatment of Information) Regulations 2018 and the Cybersecurity Code of Practice for Critical Information Infrastructure. 

The Computer Misuse Act (CMA) is the principal legislation on cybercrimes. The CMA applies to any person regardless of nationality and citizenship, outside as well as within Singapore, where the accused, computer program or data was in Singapore at the material time of the offence or the offence causes or creates a significant risk of serious harm in Singapore.  

Local cybersecurity laws also include sector-specific rules, such as guidelines and notices issued by the Monetary Authority of Singapore for the financial sector (MAS rules). 

2. Anticipated changes to local laws

The passage of the DCL Regulations is pending. It is expected that this regulation will detail the process that obligated subjects must follow to report data breaches. The regulation is expected to be issued in 2021.

On October 2018, a bill was introduced to the Senate to strengthen the cybercrime law, thus adapting the current regulation to the Budapest Convention standards. One of the amendments proposed in the bill is the inclusion of any cybercrime as a cause for a legal entity criminal liability under law No. 20,393. 

Thereby, if the amendment is approved, legal entities must prevent any cybercrimes from being carried out by their owners, controllers, executives, representatives or managers. The failure to maintain reasonable preventive measures shall cause the legal entity to be subject to criminal liability and therefore the following sanctions:

  • Fines from UTM 400 (an indexed unit of account) to UTM 300,000;
  • Partial or total loss of benefits or absolute prohibition of receiving them for a specified period;
  • Temporary or permanent prohibition to execute contracts with the State of Chile; and
  • Dissolution of the legal entity.

This bill was approved by the Senate and now has moved to the second constitutional procedure. It is likely to be approved in 2021.

Cybersecurity Act 2018: Provisions relating to the licensing of cybersecurity service providers are not yet in effect. The Cyber Security Agency of Singapore has stated that the implementation of the licensing framework will be communicated at a later date.

3. Application 

In accordance with the DCL, the obligations regarding Digital Security apply to the following:

  • Public entities;
  • Providers of digital services from: 
    • Financial sector;
    • Basic services (electricity, water and gas);
    • Health; and 
    • Passenger transport,
  • Internet service providers;
  • Critical service providers; and
  • Educational providers.

The obligations detailed in the DGL only apply to public entities.

N/A

  • Cybersecurity Act 2018: The Cybersecurity Act 2018 requires and authorises the taking of measures to prevent, manage and respond to cybersecurity threats and incidents; regulates owners of critical information infrastructures (CIIs); establishes the framework for the sharing of cybersecurity information; and regulates cybersecurity service providers. It also provides the regulator with the power to investigate cybersecurity threats or incidents in order to determine their impact, prevent further harm and future incidents. These investigative powers can be delegated to authorised persons, and can be exercised in respect of any computer or computer system in Singapore; not only CIIs. The level of intrusiveness of such powers that can be exercised will depend on the severity of the situation.
  • CMA: The CMA makes provision for securing computer material against unauthorised access or modification, and to require or authorise the taking of measures to ensure cybersecurity. In particular, the CMA criminalises cybercrime such as ecommerce scams and hacking, and also makes it illegal for: (a) any person to provide or receive personal information which he suspects was obtained through unauthorised means; and (b) any person to deal with items designed for, adapted to and used to commit computer crimes, including hardware and software (e.g. computer programmes, passwords or access codes).
  • MAS Rules: The MAS Rules, amongst other things, require regulated entities to: (a) conduct system and penetration testing; (b) continuously monitor and detect network and other types of cyber intrusions; and (c) require the board and senior management of the regulated entities to effectively implement that entity’s cyber resilience programme.

5. Key obligations 

DCL

The obligations related to Digital Security are the following: 

  • Report every data breach to the National Centre for Digital Security;
  • Deploy physical, technical, organisational and legal security measures to guarantee the confidentiality of messages, content and information transmitted through its communications services;
  • Manage digital security risks in the organisation in order to establish controls to protect the confidentiality, integrity and availability of information;
  • Set up mechanisms to verify the identity of persons accessing a digital service in accordance with the risk level involved and current regulations on personal data protection;
  • In the event of a digital security incident that has affected personal data, the public entity must notify the Data Protection Authority (DPA);
  • Keep a secure, scaleable and interoperable infrastructure.  
DGL

The public entities must comply with the following obligations: 

  • Report every data breach to the National Centre for Digital Security;
  • Implement an Information Security Management System, which requires that the public entity develop a set of cybersecurity policies, guidelines, procedures and resources to protect its information assets against information security and digital security risks and incidents;
  • Adopt measures for the management of digital security risks and incidents affecting the entity's assets;
  • Spread early warnings, alerts and information about digital security risks and incidents in their entity;
  • Ensure effective, efficient and secure research and cooperation with the National Centre for Digital Security;
  • Provide the necessary resources and measures to ensure the effective management of digital security incidents;
  • Require its software development suppliers to comply with standards, technical rules and security best practices;
  • In the event of a digital security incident that has affected personal data, the public entity must notify the Data Protection Authority (DPA) within 48 hours of becoming aware of the security breach. 

N/A

Cybersecurity Act 2018:
  • Owners of critical information infrastructure must: (a) comply with codes and directions; (b) conduct audits and risk assessments; (c) report cybersecurity incidents; and (d) participate in cybersecurity exercises; and
  • Certain cybersecurity service providers will need to be licensed.
CMA:
  • The following activities are prohibited: (a) unauthorised access or modification of computer material; (b) unauthorised use or intercept of computer services; (c) obstructing the use of computers; (d) unauthorised disclosure of computer access codes; (e) providing, receiving or supplying personal information which the person knows or suspects was obtained through unauthorised means; and (f) dealing with items designed for, adapted to and used to commit computer crimes. 
MAS Rules:
  • Establish methodologies for system testing, conduct penetration testing and source code review, and enable recovery measures and user access controls;
  • Board and senior management of regulated entities are to: (a) ensure appropriate accountability structure and organisational risk culture is in place, and (b) be trained in technology risk and cybersecurity;
  • Notify the MAS of breaches of security and confidentiality of financial institutions’ customer information (MAS Notices and Guidelines on Technology Risk Management and the MAS Guidelines on Outsourcing); and
  • Implement cybersecurity measures to protect IT systems, and prevent and mitigate against cyberattacks (MAS Notices on Cyber Hygiene).   

6. Sanctions & non-compliance 

The DCL regulation is expected to detail infringements and penalties for non-compliance with Digital Security provisions.

According with the obligations detailed in the DGL, in the event of non-compliance, the person in charge of executing the obligation may receive a (i) verbal or written warning, (ii) suspension without pay for up to 12 months, or (iii) dismissal.

N/A

Administrative sanctions:

Cybersecurity Act 2018: 

  • Fines not exceeding SGD 10,000 for each contravention or non-compliance which is not an offence, but not exceeding SGD 50,000 in aggregate.
Criminal sanctions:

Cybersecurity Act 2018:

  • Varies depending on the specific offence, although in general a criminal fine not exceeding SGD 100,000 or imprisonment for a term not exceeding two to ten years or both.

CMA:

  • A criminal fine not exceeding SGD 50,000 or imprisonment for a term not exceeding ten years or both; and
  • In respect of protected computers, a criminal fine not exceeding SGD 100,000 or imprisonment for a term not exceeding 20 years or both.
Others: 

CMA: 

  • Compensation for damage caused to computer, programme or data. 

MAS Rules:

  • Varies depending on the type of regulatory instrument that set out the specific rules (e.g. directives, guidelines, notices or circulars). For example, the contravention of guidelines is not a criminal offence and does not attract civil penalties but may have an impact on the regulator's overall risk assessment of that entity and renewal of licences issued by the regulator. Circulars, on the other hand, are documents sent for the relevant entities’ information have no legal effect. Notices primarily impose legally binding requirements on a specified class of financial institutions or persons. 

7. Is there a national computer emergency response team (CERT) or computer security incident response team (CSIRT)? 

The DCL provides that the National Centre for Digital Security is responsible for identifying, protecting, detecting, responding to, retrieving and collecting information on digital security incidents. 

Likewise, the DCL and the DGL incorporate the National Digital Security Incident Response Team responsible for: (i) managing the response and/or recovery to digital security incidents in the country and (ii) coordinating and articulating actions with other teams of a similar nature at the national and international level to deal with digital security incidents. 

The National Cybersecurity Centre (which is part of GCHQ) does not regulate the NIS Regulations but has a role in providing technical support and guidance by the following:

  • a Single Point of Contact (SPOC) – for engagement with EU partners, coordinating requests and submitting annual incident statistics;
  • a Computer Security Incident Response Team (CSIRT) to provide advice and support where reported incidents are identified or suspected of having a cybersecurity aspect;
  • being a Technical Authority on Cyber Security – to support OESs and CAs with advice and guidance, and to act as a source of technical expertise. For example, it provides:
    • a set of 14 NIS Security Principles for securing essential services;
    • a collection of supporting guidance for each principle;
    • a Cyber Assessment Framework (CAF) incorporating indicators of good practice; and implementation of guidance and support to CAs.

Yes, the Singapore Computer Emergency Response Team (SingCERT) responds to cybersecurity incidents for its Singapore constituents. It was set up to facilitate the detection, resolution and prevention of cybersecurity related incidents on the Internet.

8. National cybersecurity incident management structure

There is not a National cybersecurity incident management structure yet. 

Yes, see above.

According to Singapore’s Cybersecurity Strategy, the National Cyber Security Centre (part of the CSA) will coordinate with sector regulators to provide a national level response and facilitate quick alerts to cross-sector threats.

9. Other cybersecurity initiatives 

  • On 1 February 2019, Peru joined the Budapest Agreement known as the Budapest Convention, which is the first international treaty to address computer and internet crime.
  • Through the publication of Supreme Decree No. 050-2018-PCM, which defines the term ‘digital security’ as the state of confidence in the digital environment resulting from the management and implementation of proactive and reactive measures against risks that affect the security of people.

No.

Singapore’s Cybersecurity Strategy sets out Singapore’s vision, goals and priorities for cybersecurity. It engenders coordinated action and facilitates international partnerships for a resilient and trusted cyber environment - see more here.

Portrait of Cecilia Kahn
Cecilia Kahn
Associate
Lima
Ana Lucia Taboada
Maria Alejandra Ortiz
Portrait of Diego Rodríguez
Diego Rodríguez, LL.M.
Partner
Santiago
Sheena Jacob