Data Protection in Saudi Arabia: Comparative Analysis

The Personal Data Protection Law (PDPL) is Saudi Arabia’s first comprehensive data protection law with the aim to protect individual privacy by regulating the collection, processing, disclosure, and retention of personal data. The PDPL provides a detailed framework including criteria for data processing, data subjects’ rights, entities’ obligations when processing personal data, data sovereignty and sanctions in case of  non-compliance.  

As per our analysis, the PDPL seems to be aligned with international standards in certain areas, but some articles are concerning and contain loopholes that could allow for violations of the right to privacy and data protection. The problem is not with the text of the law per se, the problem would be its applicability and implementation within Saudi Arabia, given the kingdom’s authoritarianism. 

The law was implemented by Royal Decree M/19 of 9/2/1443H on September 16, 2021, which approved resolution № 98 of 7/2/1443H proposed on 14 September 2021. It was published in the Official Gazette on September 24, 2021. The system will come into force after 180 days from the date of its publication in the Official Gazette (Article 43 of the law), on March 23, 2022. The Saudi Data and Artificial Intelligence Authority (SDAIA) will oversee the implementation of this law for the first two years. After two years, the National Data Management Office (NDMO) will oversee its  implementation. 

How does  the law compare with international standards? 

The PDPL includes most of the essential international standards in data protection such as: data subject rights, legal basis for data processing (non consent based and consent based), privacy policies requirements, obligations of notification in case of data breaches, necessity of impact assessments before processing personal data, specific provisions on health data, credit data, controllers’ obligations and due diligence, the establishment of a supervising authority and sanctions in cases of violations. The list goes on.  

Many features of the Saudi Personal Data Protection Law (PDPL) are aligned with the standards and principles contained in other international data protection laws such as the General Data Protection Regulation (GDPR) 2016/679, the regulation in EU law on data protection and privacy in the European Union and the European Economic Area. We will point out in the table below the differences between the Saudi PDPL and the European GDPR, taken as an international standard.The GDPR currently provides the most comprehensive protection for personal data and has an important influence on laws and regulations outside of the EU as upcoming legislations are using the GDPR as a “starting point” for their laws. 

It appears that a transition period of 18 month will be set before the PDPL if fully applicable to local entities and an even longer period for organizations based outside the Kingdom. Additional details and guidance should be issued in the period leading up to the PDPL going into effect.

This law is an important step forward in data protection and a start for KSA. 

Some of the articles and the exceptions related to security, the Kingdom’s reputation, the Kingdom’s diplomatic relations, confidential sources of information, exceptions related to the public authorities, etc. are concerning as they are vague and non-defined. These exceptions and loopholes, coupled with Saudi Arabia’s poor human rights record and surveillance practices testify of yet another attempt at controlling the digital space. 

Even if the law appears“good on paper”, its enforcement is the most concerning.

We believe that this law was passed in order to attract international businesses, especially in the new technologies field and to keep up with other Gulf countries, just like the UAE. 

(Click here to download the table in PDF format)

Article 2Scope of the law: the PDPL applies to all processing in the KSA and to all individuals living in the KSA (even if the processor is an entity present abroad). The PDPL includes deceased individuals’ personal data, unlike other international data protection laws
Article 3 This article states that the most “protective” legal regime for personal data applies (judiciary decision, other legal regime, international treaty that KSA is part of).
Articles 4-5Data Subject Rights: Data subjects will have the right to be informed of personal data processing and the legal basis for such processing, the right to access their personal data (including the right to obtain a free copy), the right to correct or update their personal data, and the right to request its destruction if it is no longer needed, subject to some exceptions. Data subjects can also file complaints with the regulatory authority about how the PDPL is being implemented.Data subjects have the right to withdraw their consent to personal data processing at any time.
Article 6Non-consent based processing: Regardless of the provisions related to withdrawal of consent, the PDPL makes it clear that data processing does not always necessitate the data subject’s consent. Consent is not required: if the processing would result in a clear benefit for the data subject and if contacting the data subject seems impossible or impracticalif the processing is required by law or a prior agreement to which the data subject is a party if the controller is a public entity and the processing is required for security or judicial purposes.(Controller: the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data)
Article 8 The Controller has to make sure that: Data processor chosen should be able to guarantee the application of laws and regulations Data processor follows orders and guidelines given by the controller when it comes to the protection of personal dataData processor is responsible towards the supervising authority and towards the data subject. 
Article 9The right of access to personal data could be restricted (in time) by the controller if: it’s necessary to protect the data subject’s personal data or any other individual from prejudiceIf the controller is a state entity (public entity) restricting the right of access for security purposes or to comply with a different framework or even for judicial purposes. The same restrictions apply in the GDPR in its article 23 but the GDPR provides more exceptions and provisions to limit the right of access to personal data. 
Article 10Data collection should be direct: from the data subjectIndirect collection of personal data is accepted in the law but in certain restricted cases only. Such collected data may be processed for a different purpose than the one for which it was collected. Article 10 lists the cases where this is lawful. 
Article 11The purpose of processing personal data must be related to the controller’s “business” and must not be contrary to other regulations. Data Collection must not be contrary to any regulations and free from fraud, misrepresentation or extortionThe data collection must be limited to the least possible. After the collected data is not necessary anymore, data collection should be stopped and the data already collected must be deleted. 
Article 12Controllers must, in the PDPL, implement a privacy policy and make it available to data subjects prior to collecting personal information from them. The PDPL specifies the minimum amount of information that must be included in a privacy policy, including when personal data is collected directly from the data subject.
Article 13This article cites the different information that should be given to a data subject prior to data processing: the legal framework, the legitimate ground for processing, the controller’s identity and address (except if the processing is for security reasons), identity of data processors, third parties who have access to data, the risks of the processing, the data subject’s rights, etc.
Article 14The Controller should ensure the data collected is accurate, complete, up to date and linked to the legitimate ground for processing. 
Article 15 This article cites the cases where the controller should communicate the collected personal data: Consent of the data subjectIf the data is part of the public domain If requested by an official authority for security purposes or to comply with a different framework or even for judicial purposes. If it’s necessary to protect public order, public health, one’s life or one’s health. If the data does not allow the identification of an individual. 
Article 16Exceptions (1), (2) and (5) from Article 15 do not apply in certain cases, most notably: If this communication would result in damage to the Kingdom’s reputation or interests or if it would constitute a danger to securityIf it would impact the Kingdom’s diplomatic relationsIf this communication would reveal the existence of a confidential source of information that should not be disclosed for public interest. Etc. 
Article 17Right to modify/alter/correct data and the deadlines to do so. 
Article 18 After the purpose of the processing is completed, the controller is required to erase personal data. In certain circumstances, it may be able to retain de-identified data or personal data required to be retained by law or in legal proceedings.In the GDPR, in its Article 5, the controller can retain data for a specific period of time and it is up to the controller to determine this period. In the GDPR, the controller may retain the personal data collected when the data still has an administrative interest for the organization or when it is a legal obligation. The data can even be archived. But, both of these steps require an evaluation. 
Article 19Due diligence of the controller when it comes to protecting personal data. 
Article 20 Data breaches: leakages or unauthorized access to personal data must be reported to the supervising authority immediately, and incidents that cause material harm to the data subject must be reported to the data subject.The provisions for notification of violations are stricter than those in many international laws, including the GDPR, with a requirement for “immediate” notification rather than within a specified period. Executive regulations supplementing the law should also be issued within this time frame. (This deadline may be extended for certain entities). (Articles 3334 of the GDPR) 
Article 21The controller must answer the requests of the data subject related to the data subject’s rights in a determined duration and through a medium determined by the decrees. 
Article 22 Impact assessments: Controllers must assess the impact of processing personal data and, if personal data is no longer required to achieve the intended purpose, the controller must stop collecting such data.
Article 23Specific provisions for health data: It is necessary to restrict the right of access to health data – including medical records – to the smallest possible number of employees or workers and only to the extent necessary to provide the necessary health services. It is also necessary to restrict the procedures and operations for processing health data to a minimum number of employees and workers for the provision of health services or health insurance programs.There is no mention of a specific certification for health data stocking just like the Hébergeur de Données de Santé certification in European Law.
Article 24 Specific provisions for credit data: Steps must be taken to verify the availability of the written consent of the owner of the personal data to collect such data or to change the purpose of its collection, disclosure or publication in accordance with the provisions of the system and the credit information system. The Controller has an obligation to inform the owner of the personal data when a request for disclosure of his or her credit data is received from any party. 
Articles 25-26 Personal data can be used for marketing purposes, but there are rules in place. This means that data controllers must not use the data subject’s personal communications, including postal and electronic addresses, to send promotional or awareness materials without first obtaining the data subject’s consent and providing the data subject with an opt-out mechanism.​​ Same principles apply in the GDPR. 
Article 27Data Processing without consent for research or statistics purposes is allowed if the data collected:If the data is de-identified What can identify the subject is deleted before communicating the data (excluding sensitive data)If this processing is governed by other laws/regulations or by an agreement where the data subject is party. The GDPR, on the other hand, allows processing without consent for “legitimate interests”. Research is not explicitly designated as its own lawful basis for processing, but it may qualify as a legitimate interest of the controller under Article 6(1)(f) in some cases. Thus, while the GDPR expressly permits re-purposing collected data for research purposes, it may also permit a controller to collect personal data for research purposes without requiring the data subject’s consent. 
Article 28 Is it not allowed to copy official documents that determine the data subject’s identity. It is allowed only to enforce a court decision or if a public authority demands it. 
Article 29Data sovereignty: Data controllers can not transfer personal data outside of Saudi Arabia, except: as necessary to comply with an agreement to which the Kingdom is a partyto further Saudi interestsfor other purposes to be set forth in executive regulations. It will also be necessary to ensure that the transfer or disclosure of the data to a party outside the Kingdom does not impact national security or Saudi interests The controller needs to obtain approval from the Saudi Authority for Personal Data and Artificial Intelligence.Furthermore, with respect to the disclosure of personal data, caveats are considered if disclosure may pose a security risk, damage the reputation of the Kingdom or impact Saudi Arabia’s relations with other countries.Data transfers outside the EU are regulated in the GDPR by articles 44 to 50. Chapter 5 of the GDPR specifies two conditions under which data transfers outside the EU/EEA are permitted: – Where the European Commission has determined that a third-country has adequate data protection laws. – In the absence of an adequate decision. It is up to the data controller and processor to reach an agreement that protects data subjects’ rights and remedies in the same way that the regulation does.This point could be questionable in an environment where data transfers could easily be justified by regulations like the American Cloud Act (“The CLOUD Act allows American law enforcement to compel U.S.-based technology companies via warrant or subpoena to provide requested data stored on servers regardless of whether the data is stored in the U.S. or on foreign soil, and attempts to resolve a long-running legal battle between ‘big tech’ and law enforcement.”), especially given the number of American companies handling cloud computing from KSA (AWS, Google). This is also a debate in the European Union. The Saudi Data Protection Law takes a stricter approach to data sovereignty
Article 30This article states that the supervising authority is the authority to supervise the implementation and application of this law. The controller and the supervising authority should work together to make sure the PDPL is being applied. The supervising authority can demand of the controller, documents and proof to verify compliance with the PDPL.The Controller should appoint a Data Protection Officer to supervise the compliance with the PDPL. 
Articles 31-32Controller registration:Entities that collect personal data and determine its purpose and method of processing (controllers) will be required to register on an electronic portal that will form a national record of controllers. There will be an annual registration fee that will be determined by executive regulations (which are to be issued in due course). Controllers will also have obligations when it comes to the accuracy, completeness and adequacy of personal data prior to processing, to keep a record of processing for a period to be prescribed by the Executive Regulation, and to ensure that staff receive adequate training on the PDPL and data protection principles.
Articles 32-33-34Supervising authority: The entity that will be responsible for monitoring/overseeing compliance with this law, sanctioning its violations and before which the persons concerned can make complaints to assert their rights. If an entity is processing data from outside of KSA, it should appoint a representative within KSA. The supervising authority should approve and license the representative. However, the implementing decree provides that: The requirement for entities located outside the Kingdom that process the personal data of Saudi residents to designate a representative in the Kingdom and comply with the PDPL will be delayed for up to five years from the effective date (to be determined by the SDAIA). Data subjects can file a complaint in front of the supervising authority related to the application of the law. 
Articles 35 to 40 Sanctions: The disclosure/publication of sensitive data in violation of the PDPL can result in up to two years in prison or a fine of up to SAR 3,000,000 (US$ 800,000). Violations of the data transfer provisions may result in up to a year in prison and a fine of up to SAR 1,000,000 (US$ 266,600). All other provisions of the PDPL are punishable by a warning notice or a fine of up to SAR 5,000,000 (US$ 1,333,000).For repeat offenses, any of the fines could be doubled, and the court could order confiscation of funds obtained as a result of breaking the law, as well as publication of the judgment in a newspaper or other media at the offender’s expense.Victims of the crimes may be eligible for restitution.
Article 41Any individual who took part in the data processing should respect the privacy related to this data even after the processing is over/their job is over. 
Article 42Application decrees will be published in a maximum of 180 days after the publication of the law. 
Article 43This law will be applicable 180 days after it’s published in the official gazette. 

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Marianne Rahme

Marianne is a legal researcher in digital law. She joined SMEX as Head of the Legal Unit in 2020. Her research primarily focuses on the intersectionality of law and technology. Marianne holds an LLB in public law from the Saint Joseph University of Beirut. She is currently pursuing a Master’s in Digital Law, e-Governments and Open Governments at the University of Paris 1.