Jurisdiction - Singapore
Reports and Analysis
Singapore – New Regulations On Appeals Under The Personal Data Protection Act 2012.

29 January, 2015

 

Legal News & Analysis – Asia Pacific – Singapore   TMT

 

Background And Overview

 

On 23 January 2015, the Personal Data Protection (Amendment of Seventh Schedule) Order 2015 (“Amendment Order”) and the Personal Data Protection (Appeal) Regulations 2015 (“Appeal Regulations”) came into effect.

 

Section 34(1) of the Personal Data Protection Act 2012 (No. 26 of 2012) (“PDPA”) provides for the right of appeal by any organisation or any individual aggrieved by certain appealable directions or decisions by the Personal Data Protection Commission (“PDPC”). These appealable directions/decisions (“Appealable Decisions”) are:

 

(a) any direction made by the PDPC under section 27(2) of the PDPA (ie a direction to an individual complainant and/or organisation to resolve the complaint of the individual in the way directed by the PDPC, such as by means of mediation);

 

(b) any direction or decision made by the PDPC under section 28(2) of the PDPA (ie a direction or decision following the PDPC’s review of a complaint in relation to requests for access or correction of an individual’s personal data);

 

(c) any direction made by the PDPC under section 29(1) or 29(2) of the PDPA (ie a direction to an organisation to ensure compliance with Parts III to VI of the PDPA relating to the collection, use, disclosure, access, correction and care of personal data); and

 

(d) any decision made on reconsideration by the PDPC under section 31(4)(b) of the PDPA.

 

An aggrieved organisation or individual (as the case may be) may, within 28 days after the issue of the direction or decision concerned, appeal to the Chairman of the Data Protection Appeal Panel (“Appeal Panel”) against that direction or decision. The Chairman of the Appeal Panel may nominate a Data Protection Appeal Committee (“Appeal Committee”) for the purpose of hearing any appeal under Section 34 of the PDPA.

 

The Seventh Schedule to the PDPA, which provides for the constitution and proceedings of the Appeal Panel and Appeal Committees, has been amended by the Amendment Order.

 

The Appeal Regulations introduce new detailed procedures for appeals made under the PDPA.

 

A non-exhaustive summary of the key provisions under the Amendment Order and the Appeal Regulations is set out below.

 

Appeal Committees

 

The Amendment Order provides that, where an appeal under section 34 of the PDPA is made, the Chairman of the Appeal Panel will nominate three or more members of the Appeal Panel (which may include himself) to constitute an Appeal Committee to hear the appeal.

 

Matters coming before an Appeal Committee will be decided by a majority of votes of thosemembers present. The presiding member of an Appeal Committee has a second or casting vote.

 

The presiding member of an Appeal Committee will either be the Chairman of the Appeal Panel (if he nominates himself to be a member of the Appeal Committee) or such member of the Appeal Committee whom the Chairman of the Appeal Panel appoints as the presiding member of that Appeal Committee. Pursuant to the Amendment Order, it is also clarified that the validity of an act of the Chairman of the Appeal Panel or of the presiding member of an Appeal Committee will not be affected solely by reason of any vacancy in, or defect in, the constitution of the Appeal Committee, or defect in appointment of the Chairman of the Appeal Panel or any member of an Appeal Committee.

 

Procedures For Appeals

 

The Appeal Regulations set out the detailed procedures for appeals made under section 34(1) of the PDPA, including in relation to:

 

(a) the manner in which a person (the “appellant”) may appeal against an Appealable Decision, including the form and content of a Notice of Appeal;

 

(b) the response by the PDPC and corespondent(s) concerned in the appeal (“Response”), following service of the appellant’s Notice of Appeal;

 

(c) the reply by the appellant to such response by the PDPC and corespondent(s) (“Reply”) concerned in the appeal; and

 

(d) the hearing and case management of an appeal by an Appeal Committee.

 

These are discussed in more detail below.

 

Bringing An Appeal

 

An organisation or individual who wishes to appeal against an Appealable Decision must first prepare a Notice of Appeal. The Notice of Appeal must set out the following information:

 

(a) the name and address of the appellant, and an address in Singapore for service of documents;

 

(b) the grounds of the appeal and the arguments of fact or law supporting those grounds; and

 

(c) the facts and the issues of the appeal, including the circumstances under which the appeal arises.

 

The Notice of Appeal must be signed and dated by the appellant himself/herself (in the case of an individual) or by a duly authorised officer of the organisation (in the case of where the appellant is an organisation).

 

The Notice of Appeal must be filed with the Secretary of the Appeal Panel within the stipulated timeframe (ie within 28 days after the issue of the direction or decision concerned by the PDPC), together with the following documents:

 

(a) a copy of the Appealable Decision being appealed against;

 

(b) any documents supporting the appellant’s grounds of appeal; and

 

(c) any documents supporting the appellant’s arguments of fact or law.

 

A filing fee is also payable. The filing fee is SGD 600, except that for an appeal relating to a direction or decision made by the PDPC under section 28(2) of the PDPA (ie a direction or decision following the PDPC’s review of a complaint in relation to requests for access or correction of an individual’s personal data), the filing fee is SGD 50.

 

A copy of the Notice of Appeal must be served by the appellant, by personal service, on every other party to the appeal. Thereafter, the appellant must file a Notice of Service with the Secretary of the Appeal Panel confirming the same.

 

Suspension Of The Effect Of An Appealable Decision

 

Once an appeal against an Appealable Decision has been made, the Appeal Committee may suspend the effect of the Appealable Decision which is being appealed against (except theimposition of a financial penalty) (regulation 17 of the Appeal Regulations). Such suspension may be in relation to the whole of the Appealable Decision or only in relation to part of it.

 

Generally, the period of such suspension would be the duration of the appeal, unless the Appealable Decision is remitted to the PDPC under section 34(4)(a) of the PDPA, in which case, the suspension will be effective until the PDPC makes its direction or decision on the matter.

 

Response By The PDPC And Corespondent(s)

 

Within 14 days after being served with a copy of the Notice of Appeal, the PDPC must file its Response with the Secretary of the Appeal Panel. Any organisation or complainant concerned in the appeal that wishes to respond to the appeal must also file its Response within 14 days after being served with a copy of the Notice of Appeal.

 

The Response must state the name of the party filing the Response and an address in Singapore for service of documents. It must also state concisely the arguments of fact or law which the party will rely on in responding to each ground of appeal. Any documents supporting such arguments of fact or law must also be filed with the Response.

 

A copy of the Response, including the supporting documents, must be personally served on every other party to the appeal. After such service has been effected, the PDPC and the co-respondent(s) (if any) must file a Notice of Service with the Secretary of the Appeal Panel confirming the same.

 

Reply By The Appellant

 

Regulation 8 of the Appeal Regulations further provides the appellant with a right of reply to the Response(s) filed.

 

If the appellant wishes to reply, the appellant must file such Reply with the Appeal Committee, within 14 days after being served with a copy of the Response by the PDPC and the Response(s) by a co-respondent (if any).

 

The Reply that is filed must state concisely the arguments of fact or law which the appellant will rely on in replying to the Response, and must also be accompanied with documents supporting such arguments of fact or law.

 

A copy of the Reply, including the supporting documents, must be personally served on every other party to the appeal. The appellant must, thereafter, file a Notice of Service with the Secretary of the Appeal Panel confirming the same.

 

Amendment Of A Notice Of Appeal, Response Or Reply

 

A Notice of Appeal, Response or Reply that has been filed may only be amended by the party which filed such document, if the amendment is permitted by the Appeal Committee. The party requesting such amendment must apply to the Appeal Committee to make the amendment. The Appeal Committee may permit the amendment on such terms and in such manner as it thinks fit, where it is satisfied that it is just to permit the amendment.

 

Notably, for an amendment of the Notice of Appeal to add a new ground of appeal, the Appeal Committee will only permit such amendment if it is satisfied that the following three conditions under regulation 26(3) of the Appeal Regulations are met:

 

(a) such ground is based on a matter of fact or law which only came to light after the Notice of Appeal was lodged;

 

(b) it was not practicable to include such ground in the Notice of Appeal at the time the Notice of Appeal was lodged; and

(c) there are exceptional circumstances to do so.

 

Hearing And Case Management Of Appeals By The Appeal Committee Powers Of An Appeal Committee

 

With regard to the hearing of an appeal, an Appeal Committee has the same powers, rights and privileges as those vested in a District Court on the hearing of an action (paragraph 4(2) of the Seventh Schedule to the PDPA). These include the powers to enforce the attendance of witnessesand the examination of witnesses on oath, powers to compel production of documents, and powers to award such costs or expenses as may be prescribed under section 65 of the PDPA.

 

Confidentiality Of Appeal Hearing

 

Generally, an appeal hearing will not be held in public, unless the Appeal Committee is satisfied that it is in the public interest to do so. Even if a hearing is held in public, the Appeal Committee may still direct any evidence to be heard in private or recorded without being made available to the public.

 

The Appeal Committee may also give directions to protect the confidentiality of any information or document relating to any appeal proceedings. A person who publishes or discloses any information or document in contravention of such direction by the Appeal Committee would be guilty of an offence and may be liable on conviction to a fine of up to SGD 2k, imprisonment for a term of up to six months, or both.

 

Consolidation Of Appeals

 

Under regulation 28(1) of the Appeal Regulations, the relevant Appeal Committee or the Chairman of the Appeal Panel may, on its own initiative, direct that two or more pending appeals involving the same organisation (as the appellant or as the organisation concerned in the appeals) or any same or similar issues raised in the appeals be consolidated or heard together. Any party to such appeals may also request for such consolidation of the appeals.

 

In a case where the appeals or issues have been consolidated, the Appeal Committee hearing the consolidated appeals or issues may issue a combined direction or decision under section 34(4) of the PDPA for all or any of the consolidated appeals or issues.

 

Hearing And Determination Of Appeals

 

An appeal may be summarily determined by the Appeal Committee, without requiring the attendance of the parties at a hearing, after it has considered the documents and evidence submitted by the parties (regulation 14(f)(i) of the Appeal Regulations).

 

Where the Appeal Committee chooses to conduct a hearing (which involves attendance of the parties at such hearing), the Appeal Committee will have control over the evidence at the hearing of the appeal and it need not comply with the provisions of the Evidence Act (Cap. 97) or any other written law relating to evidence. However, an appellant cannot on appeal tender any evidence that the PDPC did not have at the time when the PDPC made the Appealable Decision, unless the Appeal Committee is satisfied that:

 

(a) the evidence could not with reasonable diligence have been obtained and provided to the PDPC at that time;

 

(b) the evidence, if given, would have had an important influence on the result of the case though it need not be decisive; and

 

(c) the evidence is credible.

 

In determining an appeal, the Appeal Committee may confirm, vary or set aside the direction or decision which is the subject of the appeal (section 34(4) of the PDPA). This may include:

 

(a) remitting the matter to the PDPC;

 

(b) imposing or revoking, or varying the amount of, a financial penalty;

 

(c) giving such direction, or taking such other step, as the PDPC could itself have given or taken; or

 

(d) making any other direction or decision which the PDPC could itself have made.

 

Official Record Of Hearings

 

Regulation 18 of the Appeal Regulations provides that an official record is to be made of every hearing, either in the form of an audio recording or by way of notes of hearing recorded in such manner as the Chairman of the Appeal Panel may determine. This official record of hearing is to be kept for a period of five years.

 

Any party may apply for a copy or a transcript of the official record of hearing, by paying a fee (which is to be determined by the Chairman of the Appeal Panel) and providing the party’s reasons for such application.

 

Summary Dismissal Of Appeal

 

It may be noted that, under regulation 5 of the Appeal Regulations, an Appeal Committee may summarily dismiss an appeal under any of the following circumstances:

 

(a) where the Appeal Committee considers that the Notice of Appeal discloses no valid ground of appeal;

 

(b) where the Appeal Committee considers that the appellant is not a person entitled to appeal under the PDPA;

 

(c) where the Appeal Committee is satisfied that the appellant has habitually and persistently, and without reasonable ground, made either vexatious appeals to the Appeal Committee, or vexatious applications in the appeal proceedings before the Appeal Committee; or

 

(d) where the appellant has, without reasonable excuse, failed to comply with any timeframe stipulated under the PDPA or the Appeal Regulations for the submission of any document, application or information in the appeal proceedings, or any direction of the Appeal Committee.

 

Publication Of Appeal Decisions

 

Any direction or decision in an appeal, or any other information relating to an appeal, may be published by the Chairman of the Appeal Panel (regulation 29 of the Appeal Regulations).

 

Concluding Remarks

 

The Appeal Regulations provides for matters relating to the process for commencing appeals as well as the conduct of appeals by an Appeal Commission, and should be read together with the relevant provisions of the PDPA relating to appeals.

 

References

 

Please click on the following links to access the documents.

 

1. Personal Data Protection Act 2012

 

2. Personal Data Protection (Appeal) Regulations 2015

 

Drew & Napier

 

For further information, please contact:

 

Chong Kin Lim, Director, Drew & Napier

chongkin.lim@drewnapier.com

 

Charmian Aw, Director, Drew & Napier

charmian.aw@drewnapier.com

 

Drew & Napier TMT Practice Profile in Singapore

 

Homegrown TMT Firms in Singapore

 

 

Comments are closed.