SOFT LAW
OCDE – Guidelines governing the protection of privacy and transborder flows of personal data (2013)
PART ONE. GENERAL
Definitions
For the purposes of these Guidelines:
a) “Data controller” means a party who, according to national law, is competent to decide about the contents and use of personal data regardless of whether or not such data are collected, stored, processed or disseminated by that party or by an agent on its behalf.
b) “Personal data” means any information relating to an identified or identifiable individual (data subject).
c) “Laws protecting privacy” means national laws or regulations, the enforcement of which has the effect of protecting personal data consistent with these Guidelines.
d) “Privacy enforcement authority” means any public body, as determined by each Member country, that is responsible for enforcing laws protecting privacy, and that has powers to conduct investigations or pursue enforcement proceedings.
e) “Transborder flows of personal data” means movements of personal data across national borders.
Scope of Guidelines
2. These Guidelines apply to personal data, whether in the public or private sectors, which, because of the manner in which they are processed, or because of their nature or the context in which they are used, pose a risk to privacy and individual liberties.
3. The principles in these Guidelines are complementary and should be read as a whole. They should not be interpreted:
a) as preventing the application of different protective measures to different categories of personal data, depending upon their nature and the context in which they are collected, stored, processed or disseminated; or
b) in a manner which unduly limits the freedom of expression.
4. Exceptions to these Guidelines, including those relating to national sovereignty, national security and public policy (“ordre public”), should be:
1. a) as few as possible, and 2. b) made known to the public.
5. In the particular case of federal countries the observance of these Guidelines may be affected by the division of powers in the federation.
6. These Guidelines should be regarded as minimum standards which can be supplemented by additional measures for the protection of privacy and individual liberties, which may impact transborder flows of personal data.
PART TWO. BASIC PRINCIPLES OF NATIONAL APPLICATION
Collection Limitation Principle
7. There should be limits to the collection of personal data and any such data should be obtained by lawful and fair means and, where appropriate, with the knowledge or consent of the data subject.
Data Quality Principle
8. Personal data should be relevant to the purposes for which they are to be used, and, to the extent necessary for those purposes, should be accurate, complete and kept up-to-date.
Purpose Specification Principle
9. The purposes for which personal data are collected should be specified not later than at the time of data collection and the subsequent use limited to the fulfilment of those purposes or such others as are not incompatible with those purposes and as are specified on each occasion of change of purpose.
Use Limitation Principle
10. Personal data should not be disclosed, made available or otherwise used for purposes other than those specified in accordance with Paragraph 9 except:
a) with the consent of the data subject; or
b) by the authority of law.
Security Safeguards Principle
11. Personal data should be protected by reasonable security safeguards against such risks as loss or unauthorised access, destruction, use, modification or disclosure of data.
Openness Principle
12. There should be a general policy of openness about developments, practices and policies with respect to personal data. Means should be readily available of establishing the existence and nature of personal data, and the main purposes of their use, as well as the identity and usual residence of the data controller.
Individual Participation Principle 13. Individuals should have the right:
a) to obtain from a data controller, or otherwise, confirmation of whether or not the data controller has data relating to them;
b) to have communicated to them, data relating to them
ii. within a reasonable time;
iii. at a charge, if any, that is not excessive;
iv. in a reasonable manner; and
v. in a form that is readily intelligible to them;
c) to be given reasons if a request made under subparagraphs (a) and (b) is denied, and to be able to challenge such denial; and
d) to challenge data relating to them and, if the challenge is successful to have the data erased, rectified, completed or amended.
Accountability Principle
14. A data controller should be accountable for complying with measures which give effect to the principles stated above.
PART THREE. IMPLEMENTING ACCOUNTABILITY
15. A data controller should:
a) Have in place a privacy management programme that:
i. gives effect to these Guidelines for all personal data under its control; ii. is tailored to the structure, scale, volume and sensitivity of its operations; iii. provides for appropriate safeguards based on privacy risk assessment;
iv. is integrated into its governance structure and establishes internal oversight mechanisms;
v. includes plans for responding to inquiries and incidents; vi. is updated in light of ongoing monitoring and periodic assessment;
b) Be prepared to demonstrate its privacy management programme as appropriate, in particular at the request of a competent privacy enforcement authority or another entity responsible for promoting adherence to a code of conduct or similar arrangement giving binding effect to these Guidelines; and
c) Provide notice, as appropriate, to privacy enforcement authorities or other relevant authorities where there has been a significant security breach affecting personal data. Where the breach is likely to adversely affect data subjects, a data controller should notify affected data subjects.
PART FOUR. BASIC PRINCIPLES OF INTERNATIONAL APPLICATION: FREE
FLOW AND LEGITIMATE RESTRICTIONS
16. A data controller remains accountable for personal data under its control without regard to the location of the data.
17. A Member country should refrain from restricting transborder flows of personal data between itself and another country where (a) the other country substantially observes these Guidelines or (b) sufficient safeguards exist, including effective enforcement mechanisms and appropriate measures put in place by the data controller, to ensure a continuing level of protection consistent with these Guidelines.
18. Any restrictions to transborder flows of personal data should be proportionate to the risks presented, taking into account the sensitivity of the data, and the purpose and context of the processing.
PART FIVE. NATIONAL IMPLEMENTATION
19. In implementing these Guidelines, Member countries should:
a) develop national privacy strategies that reflect a co-ordinated approach across governmental bodies;
b) adopt laws protecting privacy;
c) establish and maintain privacy enforcement authorities with the governance, resources and technical expertise necessary to exercise their powers effectively and to make decisions on an objective, impartial and consistent basis;
d) encourage and support self-regulation, whether in the form of codes of conduct or otherwise;
e) provide for reasonable means for individuals to exercise their rights;
f) provide for adequate sanctions and remedies in case of failures to comply with laws protecting privacy;
g) consider the adoption of complementary measures, including education and awareness raising, skills development, and the promotion of technical measures which help to protect privacy;
h) consider the role of actors other than data controllers, in a manner appropriate to their individual role; and
i) ensure that there is no unfair discrimination against data subjects.
PART SIX. INTERNATIONAL CO-OPERATION AND INTEROPERABILITY
20. Member countries should take appropriate measures to facilitate cross- border privacy law enforcement co-operation, in particular by enhancing information sharing among privacy enforcement authorities.
21. Member countries should encourage and support the development of international arrangements that promote interoperability among privacy frameworks that give practical effect to these Guidelines.
22. Member countries should encourage the development of internationally comparable metrics to inform the policy making process related to privacy and transborder flows of personal data.
23. Member countries should make public the details of their observance of these Guidelines.
