Commentary to article 79. Violation of the legislation of the Republic of Kazakhstan on personal data and their protection  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Illegal collection and (or) processing of personal data, if these acts do not contain signs of a criminally punishable act, –

     entail a fine on individuals in the amount of ten, on officials, private notaries, private bailiffs, lawyers, small businesses or non–profit organizations – in the amount of twenty, on medium–sized businesses - in the amount of thirty, on large businesses - in the amount of seventy monthly calculation indices, with confiscation of items and (or) the instrument of an administrative offense or without it.

     2. The same acts committed by the owner, operator or a third party using their official position, if these actions do not entail criminal liability established by law. –

     A fine of fifty is imposed on individuals, seventy–five on officials, small businesses or non–profit organizations, one hundred on medium–sized businesses, and two hundred monthly calculation indices on large businesses, with or without confiscation of objects and (or) instruments of an administrative offense.

     3. Non-compliance by the owner, operator or a third party with measures to protect personal data, if this act does not contain signs of a criminally punishable act., –

     entails a fine for individuals in the amount of fifty, for officials, small business entities or non–profit organizations – in the amount of one hundred, for medium–sized businesses - in the amount of one hundred and fifty, for large businesses - in the amount of two hundred monthly calculation indices.

     4. The act provided for in the third part of this article, which entailed the loss, illegal collection and (or) processing of personal data, if these acts do not entail criminal liability established by law., –

     entails a fine for individuals in the amount of two hundred, for officials, small business entities or non–profit organizations – in the amount of five hundred, for medium–sized businesses - in the amount of seven hundred, for large businesses - in the amount of one thousand monthly calculation indices.

     Part 1. The International Covenant on Civil and Political Rights (December 16, 1966) states: "No one may be subjected to arbitrary or unlawful interference in his personal and family life, arbitrary or unlawful attacks on the inviolability of his home or the secrecy of his correspondence, or unlawful attacks on his honor and reputation" (art. 17).

     Article 18 of the Constitution of the Republic of Kazakhstan proclaims the right of everyone to privacy, personal and family secrets, protection of their honor and dignity. For the first time, the Criminal Code provided for liability for violation of privacy in Article 142.

     The direct object of this administrative offense is the social relations that develop in the process of collecting, processing and protecting personal data, established by the Law of the Republic of Kazakhstan dated May 21, 2013 "On Personal Data and their Protection".  

     This law defines that personal data is information related to a specific or identifiable personal data subject, recorded on electronic, paper and (or) other tangible media.

     Such information, for example, includes: last name, first name, patronymic (if any), date and place of birth, individual identification number, address of residence, identity document number, marital and social status, blood type, property, education, place of work and other personal information, identifying a person's identity.

     When qualifying acts according to the composition being commented, it is necessary to take into account the content of the terms "collection" and "processing of personal data", which mean the collection of personal data – actions aimed at obtaining personal data; processing of personal data – actions aimed at accumulation, storage, modification, addition, use, dissemination, depersonalization, blocking and destruction of personal data.

     In turn, the protection of personal data is understood as a set of measures, including legal, organizational and technical, carried out for the purposes established by law.

     The objective side of Part 1 of the commented act is expressed in the actions expressed in the illegal collection and (or) processing of personal data.

     In the disposition, the legislator establishes a double feature of the objective side: the first completed composition constitutes illegal collection of personal data, the second completed composition is illegal data processing. However, there is not always a connection between such actions. Personal data may be collected legally, or it may be processed illegally.

     The legislator draws attention to the distinction between this administrative offense and a criminally punishable act. In order for the collection and dissemination of information about a person's private life to be recognized as a criminally punishable act, consequences are required in the form of significant harm to the rights and legitimate interests of citizens, which, in accordance with paragraph 14) of Article 3 of the Criminal Code, can be expressed in the form of violations of constitutional human and civil rights and freedoms, and the legitimate interests of organizations, legally protected interests of society and the state; causing significant damage; causing a difficult life situation for the injured person; disrupting the normal operation of organizations or government agencies; disrupting important military events or a short-term decrease in the level of combat readiness and combat capability of military units and subunits; untimely detection or repulse of attacks by armed groups or individual armed persons, land, air or naval military equipment, allowing unhindered illegal passage of persons and vehicles across the State Border of the Republic of Kazakhstan, movement of contraband goods, connivance of actions damaging border facilities, technical means of border protection; other consequences indicating the materiality of the damage caused.

     The subjective side of the offense will be characterized by an intentional form of guilt.

     The subject of this offense is common, and the subjects in the commented article are individuals, private notaries, private bailiffs, lawyers, small and large businesses, and non-profit organizations.  

     Part 2 of the commented article, unlike the first part, defines as a qualifying circumstance a special subject of responsibility for the illegal collection and (or) processing of personal data. So the subjects are the owner, the operator or a third party.

     According to Article 1 of the Law of the Republic of Kazakhstan "On Personal Data and their Protection", the owner of personal data is a state body, an individual and (or) a legal entity exercising, in accordance with the laws of the Republic of Kazakhstan, the right to own, use and dispose of a database containing personal data. The operator is a government agency, an individual and (or) a legal entity that collects, processes and protects personal data. A third party is a person who is not a subject, owner, and/or operator, but is related to him (them) by circumstances or legal relationships related to the collection, processing, and protection of personal data.

     To establish guilt, an obligatory sign of the objective side is the use of official position.

     The subjective side is characterized by an intentional form of guilt.

     Part 3 of the commented article establishes administrative liability for non-compliance by the owner, operator or a third party with personal data protection measures provided for in the Rules for the Implementation of personal Data protection measures by the owner and operator, as well as by a third party, approved by Government Resolution No. 909 of September 3, 2013.

     In accordance with these rules, the obligations of the owner and/or operator, as well as a third party, to protect personal data arise from the moment personal data is collected and remain in effect until they are destroyed or depersonalized. Violation of the obligations under consideration should be understood as failure to take measures to protect personal data, ensuring the prevention of unauthorized access to personal data.; timely detection of unauthorized access to personal data, minimizing the adverse effects of unauthorized access to personal data.

     Thus, the objective side of part 3 of the commented article will be expressed in non-compliance with the above obligations by the owner and (or) operator, as well as by a third party. Forms of expression — actions, inaction.

     The legislator here also draws attention to the distinction from the criminally punishable act provided for in Article 147 of the Criminal Code, which we commented on above.

     The subjective side can be characterized by both intentional and careless forms of guilt (negligent attitude to the performance of duties).

     The subject of the offense is similar to the second part of the commented article.

     Part 4. A special feature of this rule is a constructive sign of the objective side in the form of loss or illegal collection and (or) processing of personal data. An important condition for the occurrence of administrative responsibility is the presence of a causal relationship with the failure of the owner, operator or a third party to take measures to protect personal data.

The offense provided for in paragraph 4 of Article 79 of the Administrative Code is material, i.e. the offense is completed from the moment the data is lost or illegally collected or processed. Thus, collection and processing in one case is an act (Part 1 of Article 79 of the Administrative Code), and in this case it is a consequence (part 4 of Article 79 of the Administrative Code).

     In accordance with Part 1 of Article 684 of the Administrative Code, cases of these offenses are considered by judges of specialized district and equivalent administrative courts.

Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:

     Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);

     Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;

     Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);  

     Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);

     Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;

     Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;

     Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;

     Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);

     Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);  

     Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;

     Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;

     Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);

     Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;

     Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;  

     Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);  

     Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;

     Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.  

     Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).

Date of amendment of the act:  01.01.2020 Date of adoption of the act:  01.01.2020 Place of acceptance:  100050000000 Authority that adopted the act: 103001000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  5 Status of the act:  new Sphere of legal relations:  029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act:  COMM / CODE Legal force:  1900 Language of the Act:  rus  

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