Profiling and Data Privacy

Under the Data Privacy Act Implementing Rules and Regulation, Profiling refers to any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyze or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behavior, location or movements.

In short, profiling is a means of inquiring into the business of another person; what they do, what they like, how they work, etc.

As a data subject we have data privacy rights. When it comes to profiling, two rights are relevant with respect to data privacy: the right to be informed and the right to object.

We have the right to be informed about the purpose of the the information we give, or being asked of us to give, and it must be disclosed to us if it will be used for marketing or profiling purposes.

When talking about data, processing includes all activities that may be done to the data, and includes the collection thereof until the end of the life cycle of data which is deletion or destruction.

In relation to this, we also have the right to object to the processing of our data. When the data subject objects, processing must immediately stopped. There are only three instances where it may be processed despite objection:

  1. The personal data is needed pursuant to a subpoena;
  2. The collection and processing are for obvious purposes, including, when it is necessary for the performance of or in relation to a contract or service to which the data subject is a party, or when necessary or desirable in the context of an employer-employee relationship between the collector and the data subject; or
  3. The information is being collected and processed as a result of a legal obligation.

Legal Obligation, Duty and Liability

Now, let us give a scenario where there is a legal obligation to process and information and the data subject refused. The refusal would not be upheld. However, the legal obligation must still be carried out with justice, giving everyone what are due to them and observing honesty and good faith. If a legal obligation or a duty was not done in good faith, liability can still arise, under the Abuse of Right Doctrine.

Key Take Aways
  • You may validly object to collection of information for profiling, unless the collection is pursuant to a legal obligation; there is a subpoena; or the purpose of processing for an obvious reason.
  • If the collection of your information is pursuant to a legal obligation or duty, this must be done in good faith and carried out with justice. Meaning to say, your data and information should not be collected in a harassing manner.
  • In all cases, if your information is collected, you have the right to know what is going to be used for.

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