A prominent trading hub, a pioneer in regulatory and legal reforms, and a gem amongst the GCC States. In tandem with Bahrain’s 50th national day celebrations, we are excited to introduce the latest edition of Law Update, where we explore the significant development that the Kingdom of Bahrain has achieved as a nation on the regional and international stage.
In this standout Bahrain Focus, our lawyers provide insights and expert commentary on pertinent legal updates within the country. From an interview with an industry leader discussing the Bahrain real estate market to an insightful overview around alternative working arrangements and its economic effect. In addition, you will find several general articles along with real-life judgments that provide context for the legal landscape across the entire region.Take a read of the edition
The Compliance and Data Protection (“CDP”) department within the Ministry of Transport and Communications (“MOTC”) regulates data protection matters in Qatar and oversees the operation of Law No. 13 of 2016 (the “Data Protection Law”).
The Data Protection Law imposes certain obligations on the data controllers, such as obtaining a permit to process sensitive personal data or notifying the individuals and the Competent Authority at the MOTC concerning any personal data breach. However, Data Protection Law does not provide further information on how such obligations should be exercised or how they may be defined in greater depth.
It was expected that Executive Regulations to the Data Protection Law would be issued to deal with the foregoing points. Instead, in November 2020, the CDP has taken a novel approach and issued guidelines to the Data Protection Law (“DP Guidelines”). In order to provide guidance to companies on what is required by the Data Protection Law when processing personal data as part of their business operations. In addition, the CDP issued separate guidelines for individuals whose personal data is being processed so as to clarify their rights under the Data Protection Law. The DP Guidelines address matters that were expected to be addressed by the Executive Regulations to the Data Protection Law.
The Data Protection Law applies to any processing of personal data whether processed electronically or through a combination of electronic and non-electronic means. However, it does not apply to personal data processed by individuals for their personal or family matters or to personal data being processed for the purpose of collecting official statistical data as regulated by the relevant laws.
The DP Guidelines attempt to address such matters as:-
(1) data privacy by design and default;
(2) data privacy impact assessment (“DPIA”);
(3) direct marketing;
(4) exemptions pursuant to the Data Protection Law;
(5) individuals’ complaints;
(6) individuals’ rights;
(7) personal data breach notifications;
(8) personal data management systems;
(9) principles of data privacy;
(10) privacy notices;
(11) recording processing activities;
(12) sensitive nature data processing; and
(13) social media.
Along with the DP Guidelines, the CDP has also issued the forms that companies are required to use to submit a DPIA, to make notifications concerning any data breach and for requesting a permit to process sensitive personal data.
The DP Guidelines imposed additional obligations that were not specifically addressed by the Data Protection Law. Some of such additional obligations are set out below:
The DP Guidelines state that the data controller and the data processor should have a written contract in place. Such obligation is based upon Article 11(8) of the Data Protection Law that provides: “The Controller shall: Verify Processors’ compliance with the instructions given thereto, adoption of appropriate precautions to protect Personal Data, and follow through on the same constantly.”
Furthermore, the DP Guidelines provide further information on what such a written contract should include. In particular it is expected that contracts should address the following matters:
The DP Guidelines seek to introduce a 72-hour deadline within which data controllers should notify the CDP and individuals of a personal data breach. It should be noted that such a deadline was not mentioned in the Data Protection Law.
Furthermore, the Data Protection Law provides that data controllers are only obliged to notify the CDP and data subjects in cases where a data breach may cause serious damage to data subject. The DP Guidelines have provided a few examples of circumstances whereby processing activities “may cause serious damage”. These include:
The Data Protection Law provides in Article 11(1) that: ”The Controller shall take the following procedures: . . . reviewing privacy protection measures before proceeding with new processing operations.” Furthermore, Article 13 states: “Each of the Controller and the Processor shall take precautions necessary to protect Personal Data . . . Such precautions shall be commensurate with the nature and importance of the Personal Data intended to be protected.”
Based on the above provisions, the DP Guidelines state that data controllers should carry put the DPIA before any new processing activity or before making significant changes to an existing activity. Moreover, the DPIA should be conducted before carrying out a processing activity that “may cause serious damage” to the individuals.
Article 16 of the Data Protection Law provides that “Personal Data of a special nature may only be processed after obtaining the permission from the Competent Department, as per the measures and controls determined by a decision issued by the Minister . . .”
The Data Protection Law did not provide any further details on how such a permit could be obtained. The same was expected to be regulated by the Executive Regulations to the said law. However, the DP Guidelines now address such matters and they provide that if a data controllers intend to process sensitive personal data, the data processor should:
As seen from the above, the DP Guidelines introduced new additional conditions for processing sensitive personal data. According to the DP Guidelines, data controllers should complete a DPIA, request a permit from the CDP and identify both permissible grounds and “additional conditions” for processing. The same must be documented in maintained records or processing activities.
The “additional conditions” mentioned in the preceding paragraph include:
In addition, the DP Guidelines define a process on how a permit it to be obtained. As such, data controllers should fill out the “Special Nature Processing Request Form” that must be submitted to the CDP. Along with the said form, data controllers will need to submit the relevant DPIA and any other additional information that the CDP may request. Currently, such documents are submitted by email. However, an online portal that would facilitate such submissions is expected to be launched soon.
It appears the DP Guidelines have been structured as an attempt to mirror the comprehensiveness of the General Data Protection Regulations (“GDPR”) in force in the European Union, even though the same are not reflected in the provisions of the Data Protection Law. From a strict legal viewpoint, it is arguable the DP Guidelines have no force in law, should be considered as recommendations only and, as such, may not necessarily require strict adherence. However, it will be interesting in the near future to see how the DP Guidelines will be sought to be enforced by the authorities and what the attitude of a Qatar court will be should a question of non-compliance or enforcement come before such a court.