The regulation of personal data protection in the Czech Republic is based on Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (the ‘Data Protection Directive’). The main provisions are contained in the Act no. 101/2000 Coll., on the Protection of Personal Data, as amended (Act).
Definition of personal data
Personal data means any information relating to an identified or identifiable data subject. A data subject shall be considered identified or identifiable if it is possible to identify the data subject directly or indirectly in particular on the basis of a number, code or one or more factors specific to his/her physical, physiological, psychological, economic, cultural or social identity.
Definition of sensitive personal data
Sensitive data means personal data revealing nationality, racial or ethnic origin, political attitudes, trade union membership, religious and philosophical beliefs, conviction of a criminal act, health status and sexual life of the data subject, as well as any genetic or biometric data of the data subject.
Whoever intends to process personal data as a data controller (or change the already registered processing), shall be obliged to notify this fact in writing to the Office prior to commencing personal data processing (or change of data processing).
The notification must include at least the following information:
- identification details of the data controller (business name, seat and identification number, and name of persons who are statutory representatives of the data controller)
- purpose of processing
- categories of data subjects and of personal data
- sources of personal data
- description of the manner of personal data processing
- location or locations of personal data processing
- recipient or category of recipients of personal data
- anticipated personal data transfers to other countries, and
- description of measures adopted for ensuring the protection of personal data.
If the notification including all required information is accepted by the Office, personal data processing may be started by a data controller after the expiration of 30 days from the delivery of the notification to the Office. In such case the Office records the information stated in the notification in the register of data controllers.
There is no requirement to appoint a data protection officer stipulated by the Act.
The unequivocal (and revocable) consent of a data subject is required for the processing of personal data. Written consent is not required. However, it is recommended to obtain consent in writing, since the data controller must be able to prove the consent of a data subject during the whole period of the data processing.
Before the consent of the data subject is granted, the data subject must be clearly informed about all the aspects of processing of their personal data.
Personal data may be collected only for processing, or to be processed, if it is adequate, relevant and not excessive in relation to specific purposes for which the data is collected. Personal data may not be used for purposes which are incompatible with the reasons for which the data has been collected.
Personal data collected for different purposes may not be merged.
Personal data must be accurate and maintained up to date and it must accurately reflect the current situation of the data subject. Partially or wholly inaccurate data must be deleted or corrected.
The data controller or data processor must not disclose the personal data of the data subject to any third party without the consent of the data subject except where required or allowed to do so by law.
The personal data must be deleted once it ceases to be necessary or relevant for the purposes for which it was collected. However, where a specific law (eg the Archiving Act) sets an obligation on the data controller or data processor to keep personal data for a specific period of time, such data may not be deleted even if the data is no longer needed for the purpose for which it has been collected and processed. However, even during such additional period of time, the personal data must be kept in a way, which will not unlawfully invade privacy and they must be anonymised.
The controller of personal data must ensure to permit the data subjects to exercise their rights of access, explication or rectification without undue delay of imprecise personal data.
Special protection rules apply in the case of processing certain ‘sensitive data’ relating to political views, religious and philisophical beliefs, trade union membership (this data often appears on the payroll), racial origin, health (e.g. disability, time off work due to illness, maternity leave, etc.) and sex life. Special care is required when collecting and processing such data. Explicit informed consent is generally required for the collection, processing and transfer of such data unless some of statutory carve-outs (such as the fulfilment of controller's statutory obligations, processing during the provision of health services, etc.) apply.
The personal data protection rules also apply for the processing of birth numbers. Birth numbers (a 10 digit number sequence containing information about date of birth and sex of the holder, which are given to all Czech citizens after their birth and in limited cases also to foreigners) are widely used by businesses as key identifiers (of customers, employees etc.) in databases because they provide unambiguous identification of all Czech citizens.
Although birth numbers belong among "standard" personal data (i.e. not sensitive), their use is limited by specific rules and regulations to cases specifically stipulated in Czech law or where data controllers obtain informed consent of data subjects before processing their birth numbers.
There is a free flow of personal data guaranteed by the Act if personal data is transferred to a member state of the European Union.
As for personal data transfer to other countries, the Act distinguishes several different groups of data transfers.
In the first group, the Act stipulates that personal data may be transferred to other countries if the prohibition to restrict free movement of personal data ensues from an international treaty, the ratification of which was approved by the Parliament and which is binding for the Czech Republic. A typical example of such treaty is the ‘Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data’.
In the second group, a personal data transfer is possible on the basis of a decision of an institution of the European Union, which basically confirms that a non-EU country sufficiently protects personal data. Among such decisions belongs, for example, the Commission Decision pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequate protection of personal data provided in Switzerland, or also the Commission Decision 2000/520/EC of 26 July 2000 on the adequacy of the protection provided by the safe harbour privacy principles, which allowed that data transfers to U.S. entities with so called Safe Harbour status until its abolition by the decision of the Court of Justice of the European Union no. C-362/14 on 6 October 2015.
There are also European decisions providing that personal data may be transferred without official approval under the condition that the contract includes certain standard contractual clauses set by those decisions. These decisions are for example ‘Commission Decision on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council, Commission Decision amending Decision 2001/497/EC as regards the introduction of an alternative set of standard contractual clauses for the transfer of personal data to third countries' or 'Commission Decision on standard contractual clauses for the transfer of personal data to third countries, under Directive 95/46/EC.’
Neither of the above described ways of transfer of personal data is subjected to an official approval.
In cases other than the two above described ways of transfer of personal data, controllers shall seek a prior permission of the Office to the transfer. For this purpose the controller must prove that:
- the data transfer is carried out with the consent of, or on the basis of an instruction by the data subject
- in a third party country, where personal data is to be processed, sufficient specific guarantees for personal data protection have been created
- the transfer is necessary to exercise an important public interest following from special rules and regulations or from an international treaty binding the Czech Republic
- the transfer is necessary for negotiating the conclusion or change of a contract, carried out by the data subject, or for the performance of a contract to which the data subject is a contracting party
- the transfer is necessary to perform a contract between the controller and a third party, concluded in the interest of the data subject, or to exercise other legal claims, or
- the transfer is necessary for the protection of rights or important vital interests of the data subject, in particular for saving lives or providing health care.
The controller and the processor are obliged to adopt adequate measures preventing unauthorised or accidental access to personal data, its alteration, destruction or loss, unauthorised transmission, other unauthorised processing, as well as other misuse of personal data. This obligation remains valid also after termination of personal data processing.
The controller or the processor are also obliged to develop and to document the technical and organisational measures adopted and implemented in order to ensure the personal data protection in accordance with the Act and other legal regulations.
There is no mandatory requirement in the Act to report data security breaches or losses to the Office or to data subjects.
Both data controllers and data processors are jointly liable for any breach of the Act, which means that the Office and the data subjects may choose whether to hold liable just one of them or both of them.
In case of a breach of the Act, the Office may order rectification measures to be adopted and impose fines of up to CZK 5 million CZK (approx. EUR 185,000). Fines of up to CZK 10 million CZK (approx. EUR 370,000) may be imposed if:
- a substantial number of persons are jeopardised by unauthorised interference in their private and personal life, or
- obligations relating to the processing of sensitive data are breached.
A data subject who considers that there has been personal data processing in breach of the Act is entitled to complain directly to the Office.
When dealing with e-marketing, it is necessary to bear in mind that it is quite strictly regulated in terms of Act No. 480/2004 Col. on Certain Services of Information Society ("CSIS") as well as other previously mentioned regulations (esp. the Data Protection Directive and the Act).
CSIS states that before sending an e-mail containing marketing information, the consent of the receiver must be obtained (so called "opt-in" principle). In some cases, such as e-marketing sent to existing customers of the sender, the consent of the customer is implied until it is withdrawn (so called "opt-out" principle). Furthermore, each such message must contain clear and visible information that any further sending of such e-mails can be rejected by the receiver together with the sender's contact information and information on whose behalf the e-mail is being sent. Last but not least, each such e-mail must be clearly tagged as a commercial message.
In order to maintain e-marketing as an effective tool, its sender should operate with good-quality databases, which enable a direct targeting of the relevant message. The sender should ensure, in particular, that (i) he will duly obtain the right to use the database for e-marketing purposes and also that (ii) personal data in the database were lawfully obtained and can be lawfully disposed of by the database owner.
When processing personal data for marketing databases, it is necessary to abide strictly by the Act. All rules described above apply to e-marketing respectively.
Online privacy is also supervised by the Office. Handling personal data is subject to the similar rules as mentioned above and specific issues are governed by Act No. 127/2005 Coll. on Electronic Communications (‘AEC’).
Consent to collection and processing of personal data may be expressed by electronic means, especially by filling in an electronic form.
Public electronic communication service providers are obliged to ensure the security of the personal data they process which includes technical security and creation of internal organisational regulations.
In cases of a personal data breach a public electronic communication service provider is obliged to notify the Office "without necessary delay", and in the event that the breach of protection could very significantly affect the privacy of a certain individual, such person must be notified as well.
Apart from a few exceptions, traffic data held by a public electronic communication service provider must be erased or anonymised when it is no longer necessary for the transmission of a communication.
As regards cookies, the Czech law is still using the ‘opt-out’ principle because the user must be informed and explicitly allowed to refuse the cookies storage (no prior consent required). The ‘opt-in’ principle as introduced by the Directive 2009/136/EC has not been implemented into Czech law, although many state authorities, including the Office, publicly declared the opposite. Nevertheless, due to the above-mentioned ambiguity, we cannot exclude the risk that the Office will require the prior consent to be given by visitors of the relevant web-site according to the generally applicable obligation under the Act, if the relevant cookie is able to identify the specific user.
Relevant supervising and enforcing authorities in this area are primarily the Office and to some extent also the Czech Telecommunication Office.