Collection and processing in Serbia
The collection and further processing of personal data has to be legitimate and legally grounded, meaning pursuant to the data subject's consent or as specifically provided by law.
Under the DP Law (substantially the same as under the GDPR), there are a few instances where a data subject's personal data may be processed without the data subject’s consent, as follows:
- processing is necessary for the performance of a contract to which the data subject is a party or in order to take steps at the request of the data subject prior to entering into a contract;
- processing is necessary for compliance with a legal obligation to which the data controller is subject;
- processing is necessary to protect the vital interests of the data subject or of another natural person;
- processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the data controller; and
- processing is necessary for the purposes of the legitimate interest pursued by the data controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a minor (i.e. an individual under the age of 18) (“Specific Cases”).
Apart from the Specific Cases, prior informed consent from data subjects is generally required to collect and process personal data, meaning that any request for consent has to contain all the information on the particular processing which is explicitly prescribed by the DP Law (for example, the data subject must be notified of the purpose and legal grounds for the processing, information on other recipients of the data in cases when the data is disclosed to entities other than the data controller and information on the statutory rights of the data subjects in relation to the respective processing, etc.).
Although consent is necessary (when none of the Specific Cases is applicable), it does not automatically mean that any processing, to which a data subject has consented will be regarded by the DPA as compliant with the DP Law. There are also other conditions which must be met under the DP Law (e.g. the purpose must be legitimate and clearly determined and the type and scope of processed data must be proportionate to the respective purpose).
In addition to written consent, the DP Law explicitly introduces other forms of consent, such as online consent, oral consent or consent by other clear affirmative action provided that the controller is able to demonstrate that the data subject has indeed consented.
The conditions for obtaining consent have become much stricter under the DP Law than compared to the previous legislation. Similar to the GDPR, consent must be freely given, specific, informed and unambiguous. For example the request for consent — when presented in a written document — must be clearly distinguishable from all other matters, using clear and plain language (meaning catch-all clauses will not be valid). Further, consent will not be considered freely given if the performance of a contract is conditional on the consent to the processing of personal data that is not necessary for its performance.
In addition, one important novelty introduced by the DP Law (and similar to the GDPR), is that it does not apply only to the processing of data carried out by Serbian controllers and processors, but also to the processing of data by controllers and processors based outside of Serbia whose processing activities relate to the offering of goods or services (even if offered for free) or monitoring the behavior of Serbian data subjects within Serbia. As a result, a number of these controllers and processors will need to appoint representatives in Serbia for correspondence with the DPA and the data subjects on all issues related to processing.
