South Korea: Active Enforcement Of Newly-Adopted One-Year Data Retention Limit In Korea

Last Updated: 19 January 2017
Article by Yulchon LLC
Most Read Contributor in South Korea, February 2017

On Thursday, Jan. 14, 2016 the Korea Communications Commission (KCC) issued corrective orders and imposed fines on eight (8) information and communications service providers, including telecommunications carriers and operators of online portal businesses, for failure to expire old user data. The fines totaled W110 million (about US$90,700).

The KCC's action was based on the amended Art. 16, para. (2) of the Presidential Enforcement Decree (the "Enforcement Decree") of the Act on Promotion of Information and Communications Network Utilization and Information Protection (the "Network Act"), which became effective Aug. 18, 2015. The amendment shortened the legally-permitted retention period for old personally-identifying data from three (3) years to one (1) year from the date a data subject ceases to have an active relationship with a data controller subject to the Network Act.

Establishment of Shortened One-Year Data Retention Limit

Enforcement Decree Art. 16 provides that the data retention period must be not longer than one (1) year, except in the following cases:

  • Where a longer retention period is required in order to comply with other Korean laws or regulations; or
  • Where the data subject has expressly agreed to a longer retention period.

The amended Enforcement Decree imposes certain new obligations on those data controllers who are information or communications service providers.

In the case of an information or communications service, where a data subject (i.e., a user or subscriber) has not used the service for a specified length of time —which defaults to one (1) year except if the data subject has agreed to a longer retention period —upon the expiration of the data retention period the service provider is required to immediately either destroy or archive the old data.

Archived data may not be used or furnished to third parties except as required for compliance with other legal obligations.

Information and communications service providers have an affirmative obligation to notify data subjects of the event of data destruction or archiving, specifying the items of data affected, no later than 30 days before the expiration of the data retention period. Notice may be by email, facsimile, telephone, postal mail, or similar methods.

Implications of KCC Enforcement Action

Based on the KCC's recent enforcement action, the following enforcement principles may be discerned:

One-Year Limit Applicable to All Data

According to Art. 2 of the Addendum to the Enforcement Decree, the one-year retention period limit shall also be applicable to data collected or received prior to the Aug. 18, 2015 effective date of the amended Enforcement Decree. This means that data controllers are probably unlawfully in possession of old data, unless they have already been purging their databases.

Strict View of One-Year Retention Limit

The KCC's enforcement action indicates that the regulator strictly applies the one-year retention period on a calendar-year basis. Some of the sanctioned service providers were in the habit of regularly purging old data, but did so on a quarterly or monthly basis, meaning that in the course of their data-destruction or archiving practices, some of the data scheduled for destruction or archiving could have been over the one-year limit by a few days. KCC guidance indicates that the agency will allow a grace period of up to five (5) business days, allowing a purge cycle of a working week, but longer periods are considered not responsive enough to the one-year retention limit.

Strict View of Active Status

The recent sanctions also illustrate that the KCC takes a strict view of whether or not a data record is an active record. In the recent cases, some service providers attempted to defend their retention of data on the basis that web analytics showed a recipient had responded to an interstitial advertisement in a mass email communication using the data. The KCC rejected this defense and held that the data subject must be an active user of the service, with activity being evidenced by affirmative actions such as logging into a user account, engaging in telephonic consultation or email correspondence, or such other acts that would leave a record of activity.

Exceptions for Legal Obligations

Data controllers must also be conscious of the interaction of other legal obligations which mandate longer retention periods for certain data. The amended Enforcement Decree takes notice of such obligations and affirmatively authorizes longer retention of data where necessary for legal compliance.

For example, in cases where electronic financial transactions take place, such as where payments are made online, the Electronic Financial Transactions Act requires that records of electronic financial transactions with a value greater than W10,000 (about US$8.25) shall be preserved for five (5) years after the transaction date.

Similarly, the Act on Consumer Protection in Electronic Commerce Transactions (the "E-Commerce Consumer Protection Act") requires that (a) consumer complaints and dispute resolution records, and (b) records of contracts, subscription cancellations, payments or delivery of goods or services shall be retained for periods of three (3) and five (5) years, respectively.

Future Directions

While the KCC's initial enforcement action was aimed at bulk handlers of personal information, with millions of data records under management, it is likely that future enforcement actions may sweep up smaller businesses that handle customer data.

In particular, any business that engages in online transactions should commence a comprehensive review of its data-management practices and its data-destruction or archiving workflow to make sure that activity status is confirmed and action is taken on an aggressive timetable. Because data subjects may expressly agree to a longer retention period, policies and user agreements should be reviewed and amended to reflect the current enforcement risk.

TMT News Alert 26 01

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.