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ABLI L eg al C onvergen ce S er ies REGULATION OF CROSS-BORDER TRANSFERS OF PERSONAL DATA IN ASIA SAL-ABLI Legal Convergence Series.indd 1 5/10/2018 3:12:11 PM REGULATION OF CROSS-BORDER TRANSFERS OF PERSONAL DATA IN ASIA ABLI Legal Convergence Series REGULATION OF CROSS-BORDER TRANSFERS OF PERSONAL DATA IN ASIA Project Lead and Editor Dr Clarisse Girot 2018 About the Asian Business Law Institute The Asian Business Law Institute (“ABLI”) is an Institute based in Singapore that initiates, conducts and facilitates research and produces authoritative texts with a view to providing practical guidance in the field of Asian legal development and promoting the convergence of Asian business laws. DISCLAIMER Views expressed by the reporters are not necessarily those of the Editor, the Asian Business Law Institute (“ABLI”), Academy Publishing nor the Singapore Academy of Law (“SAL”). Whilst every effort has been made to ensure that the information contained in this work is correct, the reporters, Editor, ABLI, Academy Publishing and SAL disclaim all liability and responsibility for any error or omission in this publication, and in respect of anything, or the consequences of anything, done or omitted to be done by any person in reliance, whether wholly or partially, upon the whole or any part of the contents of this publication. COPYRIGHT © 2018 Reporters. Published by the Asian Business Law Institute under exclusive licence. All rights reserved. No part of this publication may be reproduced, stored in any retrieval system, or transmitted, in any form or by any means, whether electronic or mechanical, including photocopying and recording, without the permission of the copyright holder. All enquiries seeking such permission should be addressed to: The Secretariat Asian Business Law Institute 1 Supreme Court Lane Level 6 Singapore 178879 Tel No: (+65) 6332 4388 E-mail: FOREWORD When I spoke at the launch of the Asian Business Law Institute some two years ago, I said that differences in the legal regimes of the countries in the region posed an impediment to the growth of business. This can clearly be seen in the area of data protection and privacy. Even a cursory glance at the reports in this compendium will reveal that the legal landscape is a patchwork of variegated – and at times conflicting – regulations and stipulations. The challenges that this poses have proven to be a significant hindrance to the development of digital trade and cross-border business operations in Asia. It is for this reason that the subject of data privacy has been on the agenda of the Institute since its inception. When the Board of Governors of the Institute discussed the project in July 2017, it was decided that the Institute would focus on the regulation of international data transfers, as this has a direct and immediate impact on cross-border business in all of the Asian jurisdictions represented on the Board of the Institute, and in Asia more generally. Over the past years, the Organisation for Economic Co-operation and Development, the Asia-Pacific Economic Cooperation nations, and the Association of Southeast Asian Nations, among others, have all adopted statements of principle, frameworks or systems recalling the importance of cross-border flows, data protection and privacy. While such supra- national initiatives are useful for the purpose of convergence, they need to be complemented by the hard and prosaic work of sifting through the thicket of national laws and regulations to identify points of commonality and areas where reform is required. From the outset, therefore, the Institute conceived of its Data Privacy Project as proceeding in two stages: first, it would research and study the state of the existing law; second, it would set out to make recommendations to promote greater convergence of national laws and regulations, with the twin goals of upholding privacy and data protection rights and facilitating cross-border trade in the region. iii Foreword The publication of this compendium of jurisdictional reports – the second in the ABLI Legal Convergence Series – marks the conclusion of the first, descriptive, phase of the project. The reports in this volume have been written by some of the foremost experts on the subject of data privacy in their respective jurisdictions, and they are a truly impressive and unique piece of legal scholarship. Taken together, they offer a comprehensive survey of the regulatory landscape as it relates to cross- border data flows and data localisation obligations in 14 Asian jurisdictions and I have no doubt that they will prove to be valuable resource, not only to practitioners but also to regulators and policymakers both in Asia and beyond, many of whom, I am given to understand, have already expressed an intention to make use of the compendium. I commend this work to anyone with an interest in legal convergence in this area of the law, including governments which are working on drafting or reviewing their own data privacy legislations. This publication of this compendium also raises the curtain on the second, prescriptive, phase of the project where the Institute will work towards the development of concrete proposals for the introduction of common rules and standards on cross-border data transfers. In this context, it is interesting to note that the reports reveal not only gaps, but also considerable similarities in the legal systems. This is encouraging, for it suggests that there is scope for greater convergence in this complex and fast-evolving area of the law. The wider objective of the Data Privacy Project is to promote a shared legal ecosystem for international data transfers in Asia that would also be interoperable with those already extant in other regions, such as Europe. There is no question that this is an ambitious goal, but I draw confidence from the fact that it is a shared enterprise. In this context, I would make special mention of the Data Privacy Forum which was organised by the Institute in Singapore on 7 February 2018 and was attended by 90 high- level representatives from governments, data protection agencies, supra- national organisations, industry, academia, and the legal community from 19 different jurisdictions. During the Forum, the participants engaged in a fruitful and productive discussion on how a framework for the sharing and transfer information across international borders might be developed in Asia. The breadth and depth of the support which the Institute has enjoyed thus far, together with the quality of this iv Foreword publication, gives me every confidence that its ambition is backed by the necessary wherewithal to make it a reality. This project is the work of many hands. Gratitude is due, first and foremost, to the jurisdictional reporters who have so generously agreed to give up their time to lend their considerable expertise to this project. Thanks must go also to the data protection and privacy commissioners and governments who have provided invaluable support and whose participation has greatly increased the stature of the project. Finally, special thanks are due to Dr Clarisse Girot, the project leader, and her team at the Institute and the Singapore Academy of Law for so skilfully co-ordinating the efforts of the jurisdictional reporters and for editing the various chapters. This compendium would not have been possible without the tremendous effort they have put in. I congratulate the Institute on what has been achieved thus far and I look forward with eager expectation at what is to come. Sundaresh Menon Chief Justice Supreme Court of Singapore 24 April 2018 v CONTENTS Page Foreword i Introduction 1 Project Lead and Editor: Clarisse Girot Jurisdictional Reports Australia 17 Reporter: Peter G Leonard China 62 Reporter: Kemeng Cai Hong Kong SAR (China) 95 Reporter: Mark Parsons India 17 Reporters: Amber Sinha and Elonnai Hickok Indonesia 142 Reporters: Justisiari P Kusumah and Danny Kobrata Japan 165 Reporter: Kaori Ishii Macau SAR (China) 188 Reporter: Graça Saraiva Malaysia 215 Reporter: Abu Bakar Bin Munir New Zealand 247 Reporter: Katrine Evans Philipines 278 Reporter: J J Disini Singapore 315 Reporter: Ken Chia South Korea 343 Reporter: Kwang Bae Park vii Contents Page Thailand 383 Reporter: David Duncan Vietnam 394 Reporter: Waewpen Piemwichai viii

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