DATA PROTECTION OFFICERS

There is no requirement under the DPL or the DPR, for organisations to appoint a data protection officer, though note the general obligation of a Data Controller to implement appropriate technical and organisational measures to protect Personal Data, as further detailed below (see Security section below).

In addition, where Processing of Personal Data or Sensitive Personal Data is carried out on a Data Controller's behalf, the Data Controller must choose a "Data Processor" providing sufficient guarantees in respect of the technical security measures and organisational measures governing the Processing to be carried out, and must ensure compliance with those measures (Article 16(3)).

COLLECTION AND PROCESSING

Data Controllers may collect and process Personal Data when any of the following conditions are met:

  • the Data Subject has given his/her written consent to the Processing of that Personal Data (Article 9(1)(a));
  • Processing is necessary for the performance of a contract to which the Data Subject is party or in order to take steps at the request of the Data Subject prior to entering into a contract (Article 9(1)(b));
  • Processing is necessary for compliance with any legal obligation to which the Data Controller is subject (Article 9(1)(c));
  • Processing is necessary in order to protect the vital interests of the Data Subject (Article 10.1(c));
  • Processing is necessary for the performance of a task carried out in the interests of the DIFC, the Dubai Financial Services Authority, the DIFC Court or in the exercise of the DPC's functions or powers vested in the Data Controller or in a third party to whom the Personal Data are disclosed (Article 9(1)(d)); or
  • Processing is necessary for the purposes of the legitimate interests pursued by the Data Controller or by the third party or parties to whom the Personal Data is disclosed, except where such interests are overridden by compelling legitimate interests of the Data Subject relating to the Data Subject's particular situation (Article 9(1)(e)).

TRANSFER

Data Controllers may transfer Personal Data out of the DIFC if the Personal Data is being transferred to a Recipient in a jurisdiction that has laws that ensure an adequate level of protection for that Personal Data (Article 11(1)(a)). An adequate level of protection is when the level of protection in that jurisdiction is acceptable pursuant to the DPR or any other jurisdiction approved by the DPC (Article 11(2)).

In the absence of an adequate level of protection, Data Controllers may transfer Personal Data out of the DIFC if the:

  • DPC or his/her delegate has granted a permit or written authorisation for the transfer or the set of transfers and the Data Controller applies adequate safeguards with respect to the protection of this Personal Data (Article 12(1)(a)). Article 5.1 of the DPR then sets out the requirements for applying for such a permit (including a description of the proposed transfer of Personal Data for which the permit is being sought and including a description of the nature of the Personal Data involved);
  • Data Subject has given his/her written consent to the proposed transfer (Article 12(1)(b));
  • transfer is necessary for the performance of a contract between the Data Subject and the Data Controller or the implementation of pre-contractual measures taken in response to the Data Subject's request (Article 12(1)(c));
  • transfer is necessary for the conclusion or performance of a contract concluded in the interest of the Data Subject between the Data Controller and a third party (Article 12.1(d));
  • transfer is necessary or legally required on grounds important in the interests of the DIFC, or for the establishment, exercise or defence of legal claims (Article 12.1(e));
  • transfer is necessary in order to protect the vital interests of the Data Subject (Article 12.1(f));
  • transfer is made from a register which according to laws or regulations is intended to provide information to the public and which is open to consultation either by the public in general or by any person who can demonstrate legitimate interest, to the extent that the conditions laid down in law for consultation are fulfilled in the particular case (Article 12(1)(g));
  • transfer is necessary for compliance with any legal obligation to which the Data Controller is subject or the transfer is made at the request of a regulator, police or other government agency (Article 12(1)(h));
  • transfer is necessary to uphold the legitimate interests of the Data Controller recognised in the international financial markets, provided that such is pursued in accordance with international financial standards and except where such interests are overridden by legitimate interests of the Data Subject relating to the Data Subject's particular situation (Article 12(1)(i)); or
  • transfer is necessary to comply with any regulatory requirements, auditing, accounting, antimoney laundering or counter terrorist financing obligations or the prevention or detection of any crime that applies to a Data Controller (Article 12(1)(j)).

Authorities who may receive Personal Data in the context of a particular inquiry are not regarded as Recipients under the DPL or the DPRs (as per the definition of Recipient in the DPL).

SECURITY

Data Controllers must implement appropriate technical and organisational measures to protect Personal Data against wilful, negligent, accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access and against all other unlawful forms of Processing, in particular where Sensitive Personal Data is being Processed or where the Personal Data is being transferred out of the DIFC (Article 16(1)). When applying for a permit to Process Sensitive Personal Data, or Transfer Personal Data out of the DIFC, Data Controllers must include detail regarding the safeguards employed to ensure the security of such Sensitive Personal Data/Personal Data (respectively, Articles 2.1.1(i) and 5.1.1(i) of the DPR).

The measures implemented ought to ensure a level of security appropriate to the risks represented by the Processing and the nature of the Personal Data to be protected (Article 16(2)).

BREACH NOTIFICATION

In the event of a breach (being an unauthorised intrusion, either physical, electronic or otherwise, to any Personal Data database, as defined by the DPL) Data Controllers (or Data Processors carrying out a Data Controller's function at the time of the breach), must inform the DPC of the incident as soon as reasonably practicable (Article 16(4)).

ENFORCEMENT

In the DIFC, the DPC oversees the enforcement of the DPL (Article 26).

The DPC needs to conduct all reasonable and necessary inspections and investigations before notifying a Data Controller that it has breached or is breaching the DPL or any regulations (Article 32). If the DPC is satisfied with the evidence of the breach, the DPC may issue a direction to the Data Controller requiring it to do either or both of the following:

  • do or refrain from doing any act or thing within such time as may be specified in the direction (Article 33(1)); or
  • refrain from Processing any Personal Data specified in the direction or to refrain from Processing Personal Data for a purpose or in a manner specified in the direction (Article 33(2)).

A Data Controller may ask the DPC to review the direction within fourteen days of receiving a direction and the DPC may receive further submissions and amend or discontinue the direction (Article 33(6)).

A Data Controller that fails to comply with a direction of the DPC may be subject to fines and liable for payment of compensation (Article 33(4)).

The DIFC Court may make any orders that it thinks just and appropriate in the circumstances, including remedies for damages, penalties or compensation (Article 37(2)).

ELECTRONIC MARKETING

As soon as possible upon beginning to collect Personal Data, the DPL requires Data Controllers to provide Data Subjects who they have collected Personal Data from, with, amongst other things, any further information to the extent necessary (having regard to the specific circumstances in which the Personal Data is collected). This includes information on whether the Personal Data will be used for direct marketing purposes (Article 13).

If the Personal Data has not been obtained from the Data Subject, the Data Controller or their representative must at the time of undertaking the Processing – or if it is envisaged that the Personal Data will be disclosed to a Third Party, no later than when the Personal Data is first Processed or disclosed – provide the Data Subject with, amongst other things, information regarding whether the Personal Data will be used for direct marketing purposes (Article 14).

Before Personal Data is disclosed for the first time to third parties or used on a Data Subject's behalf for the purposes of direct marketing, Data Subjects also have the right to be informed and to be expressly offered the right to object to such disclosures or uses (Article 18).

Additionally, the DPL requires a Data Controller to record various types of information regarding its Personal Data Processing operations (Article 19(4)). This must include an explanation of the purpose for the Personal Data Processing (Article 6.1.1(b) of the DPR). The DPR suggests that one of these purposes may be for advertising, marketing and public relations for the Data Controller itself or for others. (Article 6.2.1).

ONLINE PRIVACY (INCLUDING COOKIES AND LOCATION DATA)

The DPL or DPR do not contain specific provisions relating to online privacy, however, the broad provisions detailed above are likely to apply.

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