Personal Data Protection Act 2012 Proposed Advisory Guidelines for the Real Estate Agency Sector On 23 January 2014, the Personal Data Protection Commission ( PDPC ) issued two sets of proposed advisory guidelines to clarify the implementation of the Personal Data Protection Act ( PDPA ) in the Real Estate Agency Sector and Telecommunication Sector respectively. These proposed advisory guidelines aim to address the unique circumstances faced by the Real Estate Agency Sector and Telecommunication Sector and complement three earlier sets of advisory guidelines published by the PDPC in 2013. This update covers the Proposed Advisory Guidelines for the Real Estate Agency Sector ( Proposed Guidelines ), which was developed in consultation with the Council for Estate Agencies ( CEA ). Specifically, this update provides a brief overview of the clarifications proposed by the PDPC in relation to Real Estate Agents Data Protection ( DP ) and Do Not Call Registry ( DNC ) obligations under the PDPA. DP Provisions Personal Data The DP provisions and obligations only apply to personal data, which has been defined under the PDPA to generally mean information that can identify an individual either in itself or in combination with other information that an organisation has or is likely to have. The Proposed Guidelines have further clarified the scope of personal data by providing illustrative examples of information which would fall within or out of the definition in the context of the real estate sector. In particular, the Proposed Guidelines have clarified the following: Identification of an Individual: Personal data generally refers to information that can identify an individual. The identification can either be direct or in combination with other information that an organisation has or is likely to have. For example, 1 Rajah & Tann LLP
the Proposed Guidelines clarified that while names, photographs and addresses are most likely personal data, generic terms such as The Resident are not. Anonymised Personal Data: The Proposed Guidelines affirmed that anonymised data is not personal data if such data can no longer identify an individual in itself or in combination with other information that the organisation has or is likely to have. However, the Proposed Guidelines also cautioned organisations on the risks of factors beyond its control which may pose a challenge in keeping data anonymised. For example, anonymised data, which if combined with publicly available information, could lead to the identification of an individual. Illustrative Examples on the Application of DP Provisions The Proposed Guidelines also set out some illustrative examples on the application of some aspects of the DP Provisions in the Real Estate Agency Sector. For example, in relation to real estate salespersons personal data, the Proposed Guidelines clarified, by way of an example, that a real estate agent must obtain its salespersons consent before it can publish their names and photographs on websites to publicise their achievements (e.g. as part of a Top 100 salespersons list). However, where the real estate agent provides a potential buyer with the contact details of its salesperson, the PDPC clarified that the real estate agent need not seek its salesperson s consent to disclose such personal information in such context as such personal information would be considered business contact information (to which the PDPA obligations do not apply). In relation to personal data of clients, the PDPC has clarified, by way of examples, that certain information disclosed by salespersons may be considered personal data. For example, a salesperson telling a potential buyer that a seller and her husband have two children who goes to school in the area of the apartment and they are selling the apartment because they are relocating to country XYZ, would be viewed by the PDPC as disclosure of personal information of the seller by the salesperson. The seller s consent would be required in this context prior to such disclosure. However, if the salesperson is only revealing information such as the afternoon sun does not reach the bedroom, then the PDPC would not view this as disclosure of personal information of the seller. Therefore, real estate agents and its salespersons should, in the course of their practice, be mindful of the types of information revealed and whether consent would be required from the individuals concerned. 2 Rajah & Tann LLP
Obligations of Salespersons under the PDPA The Proposed Guidelines also provided clarifications for salespersons for real estate agents. Where the salespersons are the employees of real estate agents, these salespersons will fall within the exclusion from the DP Provisions for employees acting in the course of their employment. However, salespersons that are not employees will not qualify for the above exclusion and may instead be treated by the PDPC as separate organisations and be required to comply with the DP provisions. In addition, the Proposed Guidelines appear to suggest that the PDPC may consider salespersons who are not employees to be data intermediaries if the salespersons process personal data on behalf of and for the purposes of the real estate agent and this relationship with the real estate agent is based on a contract evidenced or made in writing. Note that data intermediaries will only be subject to the Protection Obligation and the Retention Limitation Obligation of the DP provisions under the PDPA. DNC Provisions Specified Message The DNC provisions and obligations apply only to a specified message, which has been defined under the PDPA to mean generally a message where the purpose, or one of the purposes, of the message, is to advertise or promote goods or services. The Proposed Guidelines have further clarified the scope of specified message by providing illustrative examples of messages which would fall within or out of the definition within the Real Estate Sector context. In particular, the Proposed Guidelines have clarified the following: Servicing Calls: Where the sending of text messages, faxes or the making of calls are for the purpose or in the course of providing a service that the holder of the telephone number has engaged the salesperson with the real estate agent for, such communications will not be specified messages. Examples provided by the Proposed Guidelines include: o the conveying of an offer from a potential buyer by the salesperson of the real estate agent engaged to sell a property; 3 Rajah & Tann LLP
o the responding to a request by a potential buyer to call back and find out the decision of a purchase of property; and o the calling of a buyer to confirm details of the property transaction concerned. Salesperson to Estate Agent Communications: Where a salesperson calls another real estate agent in the course of business, such as to market property under their charge, such communications fall under the business-to-business marketing calls exclusion and are not specified message. Cold Calls: Where the salespersons of real estate agents make unsolicited calls or send unsolicited text messages or faxes for marketing purposes, these communications will be regarded as specified messages. Examples provided by the Proposed Guidelines include: o purchasing a database of telephone numbers and calling the telephone numbers listed to market property; o calling a buyer of one property to market other properties under the charge of the salesperson; o calling telephone numbers collected from showrooms to enquire about interest in the property concerned when a request for a follow up communication was not made; and o calling telephone numbers collected from showrooms to market other properties under the charge of the real estate agent or the salesperson. Clear and Unambiguous Consent Under the DNC provisions, an organisation will not be required to check the DNC registry before sending out a specified message if it has obtained the clear and unambiguous consent of the user of the Singapore telephone number to do so in written or other accessible form. The Proposed Guidelines have clarified what the PDPC considers to be clear and unambiguous consent in evidential form by providing illustrative examples which would fall within or out of the requirements in the context of the real estate sector. In particular, the Proposed Guidelines have provided the following four scenarios that, on their own, are unlikely to constitute clear and unambiguous consent in evidential form: 4 Rajah & Tann LLP
Declaration by Third Party: Where telephone numbers have been obtained from third parties, the representations by third parties that consent was obtained from subscribers of the telephone numbers to receive marketing calls is insufficient. These will apply to situations where salespersons of real estate agents bought telephone databases from third parties. Publicly Available Information: The public availability of a telephone number is also insufficient to indicate that consent has been obtained from the holder of the telephone number to receive marketing calls. These will apply to telephone numbers listed in public phonebooks and social network profiles. Failure to Opt Out: The presence of signs or notices at a showroom that informs an individual that he may be contacted for marketing or promotion will also not be enough to constitute clear and unambiguous consent in evidential form even when the individual failed to opt out. Prior Business Relationship: That the organisation has formerly transacted with the holder of a telephone number will also be insufficient to impute clear and unambiguous consent in evidential form on the part of the holder of the telephone number to receiving marketing calls. The Proposed Guidelines have also indicated that the following are likely to constitute clear and unambiguous consent in evidential form, if evidence is retained to demonstrate that the individual has indeed provided such consent: Opting in: Where individuals were instructed to tick here if you wish to be contacted by phone or SMS for this development and other new launches by ABC Development Pte Ltd and the individuals have clearly ticked the boxes. Email confirmation: Where an individual replies clearly and positively (e.g. Yes ) to an email query on whether he would like to receive further information about other properties on the market. Ongoing Relationship Exemption An organisation will also not be required to check against the DNC registry before the sending of specified text or fax messages, if it can rely on the ongoing relationship exemption. Generally, to qualify for the exemption, the organisation must be in an ongoing relationship with the recipient and the specified message must relate to the subject of the ongoing relationship. Note that this exemption does not apply to voice calls. 5 Rajah & Tann LLP
The Proposed Guidelines clarified that one-off interactions or transactions are in themselves insufficient to constitute an ongoing relationship. As examples, the Proposed Guidelines provided that specific enquiries about a property, the signing of an option to purchase a property and the sale of a property are all one-off interactions or transactions which do not form an ongoing relationship. However, the Proposed Guidelines provided that when an individual signed up for regular email updates for specific types of properties, the sending of text or fax messages containing updates on the specific types of properties that the individual indicated interests in will fall under the ongoing relationship exemption. Inter-relation between DP and DNC Provisions Finally, the Proposed Guidelines provided clarifications on how the DP and DNC provisions will operate in relation to each other, including in this transition period where the DNC provisions are in force while the DP provisions are due to only come into force on 2 July 2014. When both the DP and DNC provisions are in force, real estate agents will need to comply with both sets of provisions. However, in the interim period where the DNC provisions are in force but not the DP provisions, real estate agents are to comply with the DNC provisions. Using the example of personal data collected before 2 July 2014 but after the DNC provisions came into force, the Proposed Guidelines clarified that while a real estate agent may continue using the personal data collected for the reasonable purpose of informing clients about new launches without the clients consent, it must still comply with the DNC provision if it wishes to send marketing text or fax messages, or place voice calls for marketing purposes to the clients. Conclusion The Proposed Advisory Guidelines for Real Estate Agency Sector provides further insight into how the PDPC is likely to interpret, apply and enforce the PDPA for activities undertaken by real estate agents. While this is the first time that the PDPC has issued specific sectoral Proposed Advisory Guidelines, it is likely that in time to come, the PDPC will issue other sectoral Proposed Advisory Guidelines. The final version will be promulgated after the consultation is over. The consultation period for these Proposed Advisory Guidelines closes at 5pm on 13. 6 Rajah & Tann LLP
A copy of the Proposed Advisory Guidelines for Real Estate Agency Sector can be accessed at http://www.pdpc.gov.sg/personal-data-protection-act/public-consultations. Contacts Rajesh Sreenivasan D (65) 6232 0751 F (65) 6428 2204 rajesh@rajahtann.com Steve Tan D (65) 6232 0786 F (65) 6428 2216 steve.tan@rajahtann.com Lionel Tan D (65) 6232 0752 F (65) 6428 2119 lionel.tan@rajahtann.com Benjamin Cheong D (65) 6232 0738 F (65) 6428 2233 benjamin.cheong@rajahtann.com Please feel free to also contact the Knowledge and Risk Management Group at eoasis@rajahtann.com Rajah & Tann LLP is the largest law firm in Singapore and Southeast Asia, with regional offices in China, Lao PDR, Vietnam and Thailand, as well as associate and affiliate offices in Malaysia, Indonesia, Cambodia and the Middle East. Our Asian network also includes regional desks focused on Japan and South Asia. As the Singapore member firm of the Lex Mundi Network, we are able to offer access to excellent legal expertise in more than 100 countries. Rajah & Tann LLP is firmly committed to the provision of high quality legal services. It places strong emphasis on promptness, accessibility and reliability in dealing with clients. At the same time, the firm strives towards a practical yet creative approach in dealing with business and commercial problems. The contents of this Update are owned by Rajah & Tann LLP and subject to copyright protection under the laws of Singapore and, through international treaties, other countries. No part of this Update may be reproduced, licensed, sold, published, transmitted, modified, adapted, publicly displayed, broadcast (including storage in any medium by electronic means whether or not transiently for any purpose save as permitted herein) without the prior written permission of Rajah & Tann LLP. Please note also that whilst the information in this Update is correct to the best of our knowledge and belief at the time of writing, it is only intended to provide a general guide to the subject matter and should not be treated as a substitute for specific professional advice for any particular course of action as such information may not suit your specific business and operational requirements. It is to your advantage to seek legal advice for your specific situation. In this regard, you may call the lawyer you normally deal with in Rajah & Tann LLP or e-mail the Knowledge & Risk Management Group at eoasis@rajahtann.com. 7 Rajah & Tann LLP