The Electronic Data Protection
Act, 2005
An
Act to provide for protection to electronic data with regard to the processing
of electronic data in Pakistan
Whereas
it is expedient to provide for the processing of electronic data while
respecting the rights, freedom and dignity of natural and legal persons, with
special regard to their right to privacy, secrecy and personal identity and for
matters connected therewith and ancillary thereto;
Now therefore it is enacted as
follows:---
CHAPTER I
PRELIMINARY
1. Short title, extent and
commencement.- (1) This Act may be called the Electronic Data Protection
Act 2005.
(2) It extends to the whole of Pakistan
and shall apply to the processing of electronic data which is collected or
takes place within Pakistan
(3)
It shall come into force at once.
2.
Definitions.- In this Act, unless there is anything repugnant in the
subject or context,---
(a) “blocking”, means the storage of
electronic data while any other data processing operation is temporarily
suspended;
(b) “corporate data”, means any
information relating to or owned by any person including financial, legal and
business processes;
(c) “data controller”, means the
individual or person, who determines the purposes and means of the processing
of electronic data, including security issues;
(d) “data filing system”, means any
set of data structured according to several specific criteria suitable to ease
their processing, composed of one or more units, in one or more physical
locations;
(e) “data operator”, means an
individual employed by data processor for the processing of electronic data;
(f) “data processor”, means the
individual or person, who processes electronic data on behalf of a data controller;
(g) “data subject”, means the
individual or person to whom the electronic data are related;
(h) “disclosure”, means the act of
making electronic data known to one or more specified individual or person,
excluding the data subject himself, by any means;
(i) “dissemination”, means the act
of making electronic data known to unspecified individuals or persons, by any
means;
(j) “electronic data” means any
information which is being processed by means of any information system, is
recorded with the intention that it should be processed by means of such
information system, or is recorded as part of a relevant data filing system or
with the intention that it should form part of a relevant data filing system
and includes personal, corporate, foreign and local data;
Explanation.—The
words “information” and “information system” used in sub-clause (k) shall have
the same meaning as defined in the Electronic Transaction Ordinance 2002 (LI of
2002);
(k) “Federal government” means the federal government of Pakistan
(l) “Foreign data” means both personal and corporate data
collected outside Pakistan
and sent to Pakistan
(m) “Individual” means natural person;
(n) “Local data” means both personal and corporate data
collected within Pakistan
for processing within or outside Pakistan
(o) “person” includes an authority, trust, Waqf,
association, statutory body, firm, company including joint venture or
consortium, or any other entity whether registered or not;
(p) “Personal data”, means any information relating to an
individual, identified or identifiable, directly or indirectly by reference to
any other information;
(q) “processing”, means any operation or set of operations,
whether or not performed by an information system, which involves collection,
recording, organization, storage, adaptation or alteration, retrieval, use,
alignment or combination, blocking, disclosure by transmission, dissemination,
erasure or destruction of the data;
(r) “prescribed” means prescribed by rules made under this
Act;
(s) “Rules” means rules made under this Act; and
(t) “sensitive data” means data revealing racial or ethnic
origin, religious, philosophical or other beliefs, political opinions,
membership in political parties, trade unions, organizations and associations
with a religious, philosophical, political or trade-union, or provide
information as to the health or sexual life of an individual and financial, or
proprietary confidential corporate data.
3.
Manual and personal data.- (1) The processing of personal or corporate
data which are not performed by any information system or other automated means
shall not be subject to the provisions of this Act unless the manual data is
collected for the purpose of converting it into electronic data.
(2) The processing of personal data by an individual in the
course of a purely personal activity or household and family purposes shall not
be subject to the provisions of this Act, provided that the personal data are
not intended to be systematically disclosed or to be disseminated.
4.
Government activity and exemptions.- (1) This Act does not apply to the
processing of personal or corporate data carried out by federal, provincial or
local government.
(2) The federal government, in respect of local data only,
by notification in the official gazette, may exempt any public or private
sector, entity or business from the operation of this Act.
CHAPTER II
PROCESSING OF FOREIGN AND LOCAL DATA
5. Data processor and data
operators.- (1) The data processor shall perform the data processing in the
prescribed manner and according to the instructions received from the data
controller unless it contravenes any law.
(2) Data operators shall act on the foreign or local data,
as the case may be, to which they have access only according to the
instructions of the data processor.
6. Processing.- Processing of
foreign or local data, as the case may be, shall be:---
(a) done fairly and lawfully; and
(b) stored for specified, explicit
and lawful purposes.
7. Collection of local data.-
Local data that are subject to data processing shall be:---
(a)
collected with due diligence, fairly and lawfully;
(b)
collected and stored for specified, explicit and lawful purposes;
(c)
adequate, relevant and not excessive in relation to the purposes for which it
is collected or processed; and
(d)
Processed in accordance with the rights of the data subject and, when
necessary, kept up to date.
8. Information to data subject.-
(1) Data subject, any other individual or person from whom the local data is
collected shall be given, prior to the collection and in writing, the following
information:---
(a)
the purposes and means of the processing;
(b)
whether replies to the questions are obligatory or voluntary;
(c)
the possible consequences of failure to reply;
(d)
the recipients or categories of recipients to whom data may be disclosed, and
the limit of data dissemination;
(e)
the existence of his rights; and
(f)
the name or trade name, and the address of the data controller and, if
designated, of the data processor.
(2) Some or all of the information described in Sub-section
1 may be omitted when it is already known to the person from whom the data is
collected.
(3) Where the data have not been obtained from the data
subject, the information described in Sub-section 1 shall be provided to the
data subject at the time of undertaking the recording of the personal data or,
if a disclosure is intended, no later than the time when the data is first
disclosed.
CHAPTER III
DATA SUBJECT'S RIGHTS
9.
Consent.- It would be the sole responsibility of the data controller to
obtain the consent of the data subject, if required, whose electronic data
shall be processed within Pakistan
10.
Rights of foreign Data Subjects.- Data subjects shall have all their
rights, if any provided under the laws of the country or territory where the
foreign data has been collected or data subject resides, only against data
controller including confirmation as to existence of, access to, updating or
rectification of their foreign data and objection to any or all operations
involving the processing of foreign data and its intended purpose and will not
deal directly with the data processor within Pakistan unless otherwise agreed
between the data controller and data processor.
CHAPTER IV
ELECTRONIC DATA SECURITY
11.
Electronic data security.- (1) Electronic data that is subject to data
processing shall be kept under custody, controlled or processed in such a way
as to minimize the risks of its destruction or loss, even accidental,
unauthorized access, unlawful processing or processing for purposes other than
those for which the electronic data were collected, by means of appropriate
precautionary security measures.
(2) The minimal precautionary security measures shall be as
prescribed.
12.
End of data processing.- (1) Before ending the processing of electronic
data, for any reason, the data processor shall notify the data controller of
its fate.
(2) The electronic data can be:---
(a)
destroyed; or
(b)
returned to data controller.
CHAPTER V
DISCLOSURE AND DISSEMINATION
13.
Data operators.- The act of making electronic data known to data
operators appointed by the data processor, in writing, to perform the
operations related to the processing, and acting directly on his behalf, shall
not be considered disclosure and dissemination subject to such limitation as
may be agreed upon between data controller and data processor.
14.
Data disclosure.- The disclosure and dissemination of personal or
corporate data shall be permitted:---
(a) by the data processor, when the data controller has
explicitly given his consent or as provided in the contract with data
controller;
(b) by data controller or data processor,---
(i) when it is performed under an obligation by national,
provincial or local laws;
(ii) when necessary for the establishment, exercise or
defence of legal claims in Court;
(iii)when requested by any relevant government authority for
purposes of national security or prevention, investigation, detection and
prosecution of criminal activities; and
(iv) as may be prescribed.
15.
Sensitive data.- (1) The processing of Sensitive Data shall be conducted
in such a way as to minimize the risks of unauthorized access or use, by means
of appropriate precautionary security measures.
(2) The minimal precautionary security measures for the
sensitive data shall be as prescribed.
16.
Transfer of local data abroad.- Transfer of local data to any territory
outside Pakistan
CHAPTER VI
FEDERAL GOVERNMENT
17.
Powers and functions of federal government.- (1) The federal government
shall have the following powers and functions to,---
(a) prepare and encourage the drawing up of suitable codes
of conduct and ethics by certain categories;
(b) verify the compliance of such codes with applicable
laws;
(c) seek views of data controllers and data processors on
any matter related to electronic data;
(d) contribute to the publicity and enforcement of such
codes;
(e) interact and cooperate with international and regional
bodies performing similar functions; and
(f) set up or accredit bodies to audit the security measures
of the data processors.
(2) All public and regulatory authorities especially in the
banking, insurance, telecommunication, legal and health sector shall assist the
federal government in the exercise and performance of its powers and functions.
CHAPTER VII
COMPLAINT AND OFFENCES
18.
Complaint.- (1) Any data controller may lodge a complaint in a
prescribed manner to the Sessions Judge [may be changed with ICT tribunal,
if created before passing of this law] having territorial jurisdiction, if
he does not feel satisfied with any action, contractual or otherwise, of his
data processor.
(2) In case of local data any data subject or person having
interest in the electronic data may lodge a complaint against any data
controller in a prescribed manner to the Sessions Judge, having territorial
jurisdiction, for enforcement of his rights or interest under this Act or any
other law or contract.
(3) The Sessions Judge, if feels necessary, may direct any
person or individual to investigate into the complaint lodge before him and
report back to the court. To perform his functions, the person or individual so
directed by the Sessions Judge, may require any information and documents from
any data controller, data processor, data operator, data subject or any third
person and if further authorized, may require access to data filing systems and
where the processing is being carried on.
(4) During the course of the investigation of the complaint
mentioned in sub-sections (1) and (2), the complainant, data controller and
data processor shall have the right to be heard.
(5) After collecting all the necessary evidence the Sessions
Judge shall, if the complaint is found to be correct, order the data processor
or data controller to refrain from his unlawful or undesirable behaviour,
impose fine not exceeding one million rupees or order appropriate measures to
protect the electronic data, the rights and interest of the complainant and
ensure compliance of the applicable provisions of this Act, rules and the
contract.
(6) During the pendency of the investigation the Sessions
Judge may temporarily order the blocking of some or all of the electronic data,
or impose a ban on any or all the operations of processing.
(7) The Sessions Judge may request, if needed, assistance
from any public and law enforcement authorities.
(8) Any final order of the Sessions Judge may be appealed
against by any aggrieved individual or person as First Appeal against Order
before the High Court having territorial jurisdiction, within thirty days from
the communication of the said order.
19.
Unlawful processing of electronic data.- Anybody who, acting for his own
or anybody else's benefit, processes electronic data in violation of any of the
provisions of this Act or contract with the Data Controller or Data Processor,
as the case may be, shall be punished with imprisonment for a term not
exceeding three years or fine not exceeding three million rupees or both.
20.
Unlawful dissemination and disclosure.- Anybody who, acting for his own
or anybody else's benefit, disseminate or disclose electronic data in violation
of any of the provisions of this Act or contract with the Data Controller or
Data Processor, as the case may be, shall be punished with imprisonment for a
term not exceeding three years or fine or both.
21.
Sensitive Data.- In case the offence committed under section 19 and 20
relates to Sensitive Data the maximum term of punishment shall be five years.
22.
Failure to adopt appropriate data security measures.- Anybody who fails
to adopt the security measures that are necessary to ensure data security, when
he is required to do so, in violation of the provisions laid down in the rules,
if binding or contract between the data controller and data processor, shall be
punished with imprisonment for a term not exceeding three years or fine or
both.
23.
Failure to comply with orders.- Anybody who fails to comply with the
orders of the Sessions Judge when he is required to do so, shall be punished
with imprisonment with imprisonment for a term not exceeding three months or
fine or both.
24.
Exception.- Notwithstanding anything contained in this chapter, Act or
any contract between the parties, shall constitute an offence if any data operator,
employee of data controller or data processor acts on reasonable ground and in
good faith to inform the Sessions Judge of any perceived violations of the Act,
rules and contract between the data controller and data processor. On the
request of the informer the Sessions Judge shall maintain secrecy about his
identity in any or all circumstances.
25. Corporate liability.- A person shall be held liable
for a criminal offence committed on his instructions or for his benefit or lack
of required supervision by any individual, acting either individually or as
part of an organ of the person, who has a leading position within it, based on
a power of representation of the person; an authority to take decisions on
behalf of the person; or an authority to exercise control within it. The person
shall be punished with fine not exceeding ten million rupees,---
Provided
that such punishment shall not absolve the criminal liability of the
individual, who has committed the offence.
26.
Offences to be bail-able, compoundable and non-cognizable.- (1) All
offences under this Ordinance shall be bail-able, compoundable and
non-cognizable.
(2) The prosecution of the offence under this Act shall only
be initiated with the prior of the authorized officer of the federal government.
27.
Prosecution and trial of offences.—No Court
inferior to the Court of Sessions shall try any offence under this Act.
CHAPTER VIII
TEMPORARY AND MISC. PROVISIONS
28.
Temporary provisions.- (1) All data processors shall adopt necessary
security measures within six months from the day in which the rules, if
binding, on the subject come into force. In the meantime, electronic data
should be kept under custody in such a way as to prevent any increase of the
risks to the electronic data.
(2) In case of local data the data controller shall comply
with the principles laid down in sections 7 and 8 of this Act within a period
of one year.
29.
Other Laws.- For the purposes of Electronic Crimes Act 2005, any
electronic or information system containing personal or corporate data shall be
considered as sensitive electronic system.
30.
Power to make rules.- The Federal Government may, by notification in the
official Gazette, make rules to carry out the purposes of this Act.
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