DLA Piper Intelligence

Data Protection
Laws of the World

Law

Luxembourg
Luxembourg

The General Data Protection Regulation (Regulation (EU) 2016/679) (GDPR) is a European Union law which entered into force in 2016 and, following a two-year transition period, became directly applicable law in all Member States of the European Union on May 25, 2018, without requiring implementation by the EU Member States through national law.

A Regulation (unlike the Directive which it replaced) is directly applicable and has consistent effect in all Member States. However, there remain more than 50 areas covered by GDPR where Member States are permitted to legislate differently in their own domestic data protection laws, and there continues to be room for different interpretation and enforcement practices among the Member States.

Territorial Scope

Primarily, the application of the GDPR turns on whether an organization is established in the EU. An 'establishment' may take a wide variety of forms, and is not necessarily a legal entity registered in an EU Member State.

However, the GDPR also has extra-territorial effect. An organization that it is not established within the EU will still be subject to the GDPR if it processes personal data of data subjects who are in the Union where the processing activities are related "to the offering of goods or services" (Article 3(2)(a)) (no payment is required) to such data subjects in the EU or "the monitoring of their behaviour" (Article 3(2)(b)) as far as their behaviour takes place within the EU.

Two Luxembourg Data Protection Laws of August 1, 2018 have been enacted to implement the GDPR:

  • The Law on the organization of the National Data Protection Commission (CNPD) and the general data protection framework. It has repealed the previous Law on Data Protection (amended Law of August 2, 2002) and completes the GDPR at the national level. Most of all it gives the framework for the CNPD's organization, composition and powers under the GDPR and the applicable national law
  • The Law on the protection of individuals with regard to the processing of personal data in criminal matters as well as in matters of national security

Article L. 261-1(1) of the Labor Code provides specific regulations concerning employer workplace surveillance.

In addition, the amended Law of May 30, 2005 on data protection and electronic communications governs the protection of personal data in the field of telecommunications and electronic communications, implementing the Directive 2002/58/EC.

Last modified 10 Jan 2019
Law
Luxembourg

The General Data Protection Regulation (Regulation (EU) 2016/679) (GDPR) is a European Union law which entered into force in 2016 and, following a two-year transition period, became directly applicable law in all Member States of the European Union on May 25, 2018, without requiring implementation by the EU Member States through national law.

A Regulation (unlike the Directive which it replaced) is directly applicable and has consistent effect in all Member States. However, there remain more than 50 areas covered by GDPR where Member States are permitted to legislate differently in their own domestic data protection laws, and there continues to be room for different interpretation and enforcement practices among the Member States.

Territorial Scope

Primarily, the application of the GDPR turns on whether an organization is established in the EU. An 'establishment' may take a wide variety of forms, and is not necessarily a legal entity registered in an EU Member State.

However, the GDPR also has extra-territorial effect. An organization that it is not established within the EU will still be subject to the GDPR if it processes personal data of data subjects who are in the Union where the processing activities are related "to the offering of goods or services" (Article 3(2)(a)) (no payment is required) to such data subjects in the EU or "the monitoring of their behaviour" (Article 3(2)(b)) as far as their behaviour takes place within the EU.

Two Luxembourg Data Protection Laws of August 1, 2018 have been enacted to implement the GDPR:

  • The Law on the organization of the National Data Protection Commission (CNPD) and the general data protection framework. It has repealed the previous Law on Data Protection (amended Law of August 2, 2002) and completes the GDPR at the national level. Most of all it gives the framework for the CNPD's organization, composition and powers under the GDPR and the applicable national law
  • The Law on the protection of individuals with regard to the processing of personal data in criminal matters as well as in matters of national security

Article L. 261-1(1) of the Labor Code provides specific regulations concerning employer workplace surveillance.

In addition, the amended Law of May 30, 2005 on data protection and electronic communications governs the protection of personal data in the field of telecommunications and electronic communications, implementing the Directive 2002/58/EC.

Last modified 10 Jan 2019
Definitions

Personal data is defined as "any information relating to an identified or identifiable natural person" (Article 4). A low bar is set for "identifiable" – if the natural person can be identified using “all means reasonably likely to be used” (Recital 26) the information is personal data. A name is not necessary either – any identifier will do, such as an identification number, phone number, location data or other factors which may identify that natural person.

Online identifiers are expressly called out in Recital 30, with IP addresses, cookies and RFID tags all listed as examples.

The GDPR creates more restrictive rules for the processing of special categories (Article 9) of personal data (including data relating to race, religion, sexual life, data pertaining to health, genetics and biometrics) and personal data relating to criminal convictions and offences (Article 10).

The GDPR is concerned with the processing of personal data. Processing has an extremely wide meaning, and includes any set of operations performed on data, including the mere storage, hosting, consultation or deletion of the data.

Personal data may be processed by either a controller or a processor. The controller is the decision maker, the person who "alone or jointly with others, determines the purposes and means of the processing of personal data" (Article 4). The processor "processes personal data on behalf of the controller", acting on the instructions of the controller. In contrast to the previous law, the GDPR imposes direct obligations on both the controller and the processor, although fewer obligations are imposed on the processor.

The "data subject" is a living, natural person whose personal data are processed by either a controller or a processor.

The definition of personal data has not been amended by applicable law. GDPR definitions apply.
Last modified 10 Jan 2019
Authority

Enforcement of the GDPR is the prerogative of data protection regulators, known as supervisory authorities (for example, the Cnil in France or the ICO in the UK). The European Data Protection Board (the replacement for the so-called Article 29 Working Party) is comprised of delegates from the supervisory authorities, and monitors the application of the GDPR across the EU, issuing guidelines to encourage consistent interpretation of the Regulation.

The GDPR creates the concept of lead supervisory authority. Where there is cross-border processing of personal data (ie, processing taking place in establishments of a controller or processor in multiple Member States, or taking place in a single establishment of a controller or processor but affecting data subjects in multiple Member States), then the starting point for enforcement is that controllers and processors are regulated by and answer to the supervisory authority for their main or single establishment, the so-called lead supervisory authority (Article 56(1)).

However, the lead supervisory authority is required to cooperate with all other concerned authorities, and a supervisory authority in another Member State may enforce where infringements occur on its territory or substantially affect data subjects only in its territory (Article 56(2)).

The concept of lead supervisory authority is therefore of somewhat limited help to multinationals.

Commission Nationale pour la Protection des Données (CNPD), 1, Avenue du Rock'n'Roll, L-4361 Esch-sur-Alzette, T +352 26 10 60 1; F +352 26 10 60 29.

The CNPD is in charge of monitoring and checking that the data are processed in accordance with the GDPR, as well as the Law of August 1, 2018 on the organization of the National Data Protection Commission, the Law of August 1, 2018 on the protection of individuals with regard to the processing of personal data in criminal matters and in matters of national security, and any applicable legislation that may include specific personal data protection provisions.

Last modified 10 Jan 2019
Registration

There are no EU-wide systems of registration or notification and Recital 89 of the GDPR seeks to prohibit indiscriminate general notification obligations. However, Member States may impose notification obligations for specific activities (eg, processing of personal data relating to criminal convictions and offences). The requirement to consult the supervisory authority in certain cases following a data protection impact assessment (Article 36) constitutes a notification requirement. In addition, each controller or processor must communicate the details of its data protection officer (where it is required to appoint one) to its supervisory authority (Article 37(7)).

In many ways, external accountability to supervisory authorities via registration or notification is superseded in the GDPR by rigorous demands for internal accountability. In particular, controllers and processors are required to complete and maintain comprehensive records of their data processing activities (Article 30), which must contain specific details about personal data processing carried out within an organization and must be provided to supervisory authorities on request. This is a sizeable operational undertaking.

No specific provisions in the applicable law.
Last modified 10 Jan 2019
Data Protection Officers

Each controller or processor is required to appoint a data protection officer if it satisfies one or more of the following tests:

  • It is a public authority
  • Its core activities consist of processing operations which, by virtue of their nature, scope or purposes, require regular and systemic monitoring of data subjects on a large scale
  • Its core activities consist of processing sensitive personal data on a large scale

Groups of undertakings are permitted to appoint a single data protection officer with responsibility for multiple legal entities (Article 37(2)), provided that the data protection officer is easily accessible from each establishment (meaning that larger corporate groups may find it difficult in practice to operate with a single data protection officer).

DPOs must have expert knowledge (Article 37(5)) of data protection law and practices, though it is possible to outsource the DPO role to a service provider (Article 37(6)).

Controllers and processors are required to ensure that the DPO is involved "properly and in a timely manner in all issues which relate to the protection of personal data" (Article 38(1)), and the DPO must directly report to the highest management level, must not be told what to do in the exercise of his or her tasks and must not be dismissed or penalized for performing those tasks (Article 38(3)).

The specific tasks of the DPO, set out in GDPR, include (Article 39):

  • To inform and advise on compliance with GDPR and other Union and Member State data protection laws
  • To monitor compliance with the law and with the internal policies of the organization including assigning responsibilities, awareness raising and training staff
  • To advise and monitor data protection impact assessments where requested
  • To cooperate and act as point of contact with the supervisory authority

This is a good example of an area of the GDPR where Member State gold plating laws are likely. For example, German domestic law has set the bar for the appointment of DPOs considerably lower than that set out in the GDPR.

Article 65(1) of the Law of August 1, 2018 on the organization of the National Data Protection Commission provides for a specific obligation to appoint a DPO in the context of processing of personal data for scientific or historical research purposes or statistical purposes. Such appointment must be made in accordance with the nature, scope, context and purposes of the processing, as well as the risks for the rights and freedoms of the relevant data subjects. In this regard, if the data controller elects not to appoint a DPO, it must then formally document and justify why it chose not to appoint a DPO, for each project involving a processing of personal data for scientific or historical research purposes or statistical purposes.

Article 64 of the Law of August 1, 2018 on the organization of the National Data Protection Commission provides that the same applies to processing of special categories of personal data for the purposes defined in Article 9(2)(j) GDPR (ie, processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes).

Last modified 10 Jan 2019
Collection & Processing

Data Protection Principles

Controllers are responsible for compliance with a set of core principles which apply to all processing of personal data. Under these principles, personal data must be (Article 5):

  • Processed lawfully, fairly and in a transparent manner (lawfulness, fairness and transparency principle)
  • Collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes (purpose limitation principle)
  • Adequate, relevant and limited to what is necessary in relation to the purpose(s) (data minimization principle)
  • Accurate and where necessary kept up-to-date (accuracy principle)
  • Kept in a form which permits identification of data subjects for no longer than is necessary for the purpose(s) for which the data are processed (storage limitation principle)
  • Processed in a manner that ensures appropriate security of the personal data, using appropriate technical and organizational measures (integrity and confidentiality principle)

The controller is responsible for and must be able to demonstrate compliance with the above principles (accountability principle). Accountability is a core theme of the GDPR. Organizations must not only comply with the GDPR but also be able to demonstrate compliance perhaps years after a particular decision relating to processing personal data was taken. Record keeping, audit and appropriate governance will all form a key role in achieving accountability.

Legal Basis under Article 6

In addition, in order to satisfy the lawfulness principle, each use of personal data must be justified by reference to an appropriate basis for processing. The legal bases (also known lawful bases or lawful grounds) under which personal data may be processed are (Article 6(1)):

  • With the consent of the data subject (where consent must be "freely given, specific, informed and unambiguous," and must be capable of being withdrawn at any time)
  • Where necessary for the performance of a contract to which the data subject is party, or to take steps at the request of the data subject prior to entering into a contract
  • Where necessary to comply with a legal obligation (of the EU) to which the controller is subject
  • Where necessary to protect the vital interests of the data subject or another person (generally recognized as being limited to 'life or death' scenarios, such as medical emergencies)
  • Where necessary for the performance of a task carried out in the public interest, or in the exercise of official authority vested in the controller
  • Where necessary for the purposes of the legitimate interests of the controller or a third party (which is subject to a balancing test, in which the interests of the controller must not override the interests or fundamental rights and freedoms of the data subject. Note also that this basis cannot be relied upon by a public authority in the performance of its tasks)

Special Category Data

Processing of special category data is prohibited (Article 9), except where one of the following exemptions applies (which, in effect, operate as secondary bases which must be established for the lawful processing of special category data, in addition to an Article 6 basis):

  • With the explicit consent of the data subject
  • Where necessary for the purposes of carrying out obligations and exercising rights under employment, social security and social protection law or a collective agreement
  • Where necessary to protect the vital interests of the data subject or another natural person who is physically or legally incapable of giving consent
  • In limited circumstances by certain not-for-profit bodies
  • Where processing relates to the personal data which are manifestly made public by the data subject
  • Where processing is necessary for the establishment, exercise or defense of legal claims or where courts are acting in their legal capacity
  • Where necessary for reasons of substantial public interest on the basis of Union or Member State law, proportionate to the aim pursued and with appropriate safeguards
  • Where necessary for preventative or occupational medicine, for assessing the working capacity of the employee, medical diagnosis, provision of health or social care or treatment of the management of health or social care systems and services
  • Where necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of health care and of medical products and devices
  • Where necessary for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with restrictions set out in Article 89(1)

Member States are permitted to introduce domestic laws including further conditions and limitations for processing with regard to processing genetic data, biometric data and health data.

Criminal Convictions and Offences data

Processing of personal data relating to criminal convictions and offences is prohibited unless carried out under the control of an official public authority, or specifically authorized by Member State domestic law (Article 10).

Processing for a Secondary Purpose

Increasingly, organizations wish to re-purpose personal data – ie, use data collected for one purpose for a new purpose which was not disclosed to the data subject at the time the data were first collected. This is potentially in conflict with the core principle of purpose limitation; to ensure that the rights of data subjects are protected. The GDPR sets out a series of factors that the controller must consider to ascertain whether the new process is compatible with the purposes for which the personal data were initially collected (Article 6(4)). These include:

  • Any link between the original purpose and the new purpose
  • The context in which the data have been collected
  • The nature of the personal data, in particular whether special categories of data or data relating to criminal convictions are processed (with the inference being that if they are it will be much harder to form the view that a new purpose is compatible)
  • The possible consequences of the new processing for the data subjects
  • The existence of appropriate safeguards, which may include encryption or pseudonymization

If the controller concludes that the new purpose is incompatible with the original purpose, then the only bases to justify the new purpose are consent or a legal obligation (more specifically an EU or Member State law which constitutes a necessary and proportionate measure in a democratic society).

Transparency (Privacy Notices)

The GDPR places considerable emphasis on transparency, ie, the right for a data subject to understand how and why his or her data are used, and what other rights are available to data subjects to control processing. The presentation of granular, yet easily accessible, privacy notices should, therefore, be seen as a cornerstone of GDPR compliance.

Various information must be provided by controllers to data subjects in a concise, transparent and easily accessible form, using clear and plain language (Article 12(1)).

The following information must be provided (Article 13) at the time the data are obtained: 

  • The identity and contact details of the controller
  • The data protection officer's contact details (if there is one)
  • Both the purpose for which data will be processed and the legal basis for processing, including, if relevant, the legitimate interests for processing
  • The recipients or categories of recipients of the personal data
  • Details of international transfers
  • The period for which personal data will be stored or, if that is not possible, the criteria used to determine this
  • The existence of rights of the data subject including the right to access, rectify, require erasure, restrict processing, object to processing and data portability
  • Where applicable, the right to withdraw consent, and the right to complain to supervisory authorities
  • The consequences of failing to provide data necessary to enter into a contract
  • The existence of any automated decision making and profiling and the consequences for the data subject
  • In addition, where a controller wishes to process existing data for a new purpose, they must inform data subjects of that further processing, providing the above information

Somewhat different requirements apply (Article 14) where information has not been obtained from the data subject.

Rights of the Data Subject

Data subjects enjoy a range of rights to control the processing of their personal data, some of which are very broadly applicable, while others only apply in quite limited circumstances. Controllers must provide information on action taken in response to requests within one calendar month as a default, with a limited right for the controller to extend this period thereby a further two months where the request is onerous.

Right of access (Article 15)

A data subject is entitled to request access to and obtain a copy of his or her personal data, together with prescribed information about the how the data have been used by the controller.

Right to rectify (Article 16)

Data subjects may require inaccurate or incomplete personal data to be corrected or completed without undue delay.

Right to erasure ('right to be forgotten') (Article 17)

Data subjects may request erasure of their personal data. The forerunner of this right made headlines in 2014 when Europe’s highest court ruled against Google (Judgment of the CJEU in Case C-131/12), in effect requiring Google to remove search results relating to historic proceedings against a Spanish national for an unpaid debt on the basis that Google as a data controller of the search results had no legal basis to process that information.

The right is not absolute; it only arises in quite a narrow set of circumstances, notably where the controller no longer needs the data for the purposes for which they were collected or otherwise lawfully processed, or as a corollary of the successful exercise of the objection right, or of the withdrawal of consent.

Right to restriction of processing (Article 18)

Data subjects enjoy a right to restrict processing of their personal data in defined circumstances. These include where the accuracy of the data is contested; where the processing is unlawful; where the data are no longer needed save for legal claims of the data subject, or where the legitimate grounds for processing by the controller are contested.

Right to data portability (Article 20)

Where the processing of personal data is justified either on the basis that the data subject has given his or her consent to processing or where processing is necessary for the performance of a contract, then the data subject has the right to receive or have transmitted to another controller all personal data concerning him or her in a structured, commonly used and machine-readable format (eg, commonly used file formats recognized by mainstream software applications, such as .xsl).

Right to object (Article 21)

Data subjects have the right to object to processing on the legal basis of the legitimate interests of the data controller or where processing is in the public interest. Controllers will then have to suspend processing of the data until such time as they demonstrate “compelling legitimate grounds” for processing which override the rights of the data subject.

In addition, data subjects enjoy an unconditional right to object to the processing of personal data for direct marketing purposes at any time. 

The right not to be subject to automated decision making, including profiling (Article 22)

Automated decision making (including profiling) "which produces legal effects concerning [the data subject] … or similarly significantly affects him or her" is only permitted where: 

  1. Necessary for entering into or performing a contract
  2. Authorized by EU or Member State law
  3. The data subject has given their explicit (ie, opt-in) consent

Further, where significant automated decisions are taken on the basis of grounds (a) or (c), the data subject has the right to obtain human intervention, to contest the decision, and to express his or her point of view.

The Law of August 1, 2018 on the organization of the National Data Protection Commission provides specific regulations concerning the processing of personal data for the purposes of the surveillance of employees at the workplace by the employer (thus modifying Article L. 261-1(1) of the Labor Code). In this respect, the employer must comply with a certain set of obligations, in addition to its general obligations as a data controller under the GDPR.

Notably, the employer must inform certain employee representation bodies of the contemplated processing of personal data. This information must contain a detailed description of the purposes of the contemplated processing, the means of implementation of the surveillance, and the retention policy for the personal data concerned.

When employees or their representation bodies are informed that their personal data may be processed for surveillance purposes, they may ask the CNPD for a preliminary opinion on the compliance of such surveillance project with applicable data protection legislation. The employer may not begin surveillance until the CNPD hands out its decision.

When surveillance has already been put it place by the employer, employees have a right to file a complaint with the CNPD if they believe that processing does not comply with applicable data protection legislation. Filing such complaint may not be held as a grounds for dismissal.

Finally, the Law of August, 1 2018 on the organization of the National Data Protection Commission provides three specific provisions complementing the GDPR in matters left to Member State discretion.

  1. Processing of personal data for the sole purpose of journalism, university research, art or literature

This processing is not subject to:

  • Prohibitions on processing special categories of personal data set out under Article 9(1) GDPR
  • Limitations applicable to processing of personal data relating to criminal convictions and offences (Article 10, GDPR):
    • Provided such processing concerns data made publicly available (in an obvious fashion) by the data subject
    • If the data are directly connected to the public life of the data subject
    • If the data are directly connected to an event in which the data subject has willingly become involved
  • Obligations imposed on the data controller in case of a transfer of personal data to third countries or international organizations (Chapter V, GDPR)
  • The obligation of the data controller to provide information to the data subject where personal data are collected from the data subject (Article 13, GDPR), when providing such information would jeopardize the collection of personal data from such data subject
  • The obligation of the data controller to provide information to the data subject where personal data have not been obtained from the data subject (Article 14, GDPR), when providing such information would jeopardize either the collection of personal data, a publication project, making such personal data available to the public in any way whatsoever or would provide indications as to the source of information
  • The obligation to provide the data subject with the right of access to his or her personal data. Such right is postponed and limited, in that it cannot enable the data subject to identify the source of information. This right may be exercised only through the CNPD and in the presence of the President of the Press Council or his or her representative
  1. Processing of personal data for scientific or historical research purposes, for statistical purposes, or for archiving purposes in the public interest

When personal data is processed for scientific or historical research purposes or for statistical purposes, the rights of the data subject specified under articles 15, 16, 18 and 21 GDPR may be limited provided that such rights would make impossible or seriously impede the accomplishment of the specific concerned purposes.

Such limitation on data subject rights may only be applied where the data controller puts in place an extensive set of additional appropriate safeguard measures for the rights and freedom of the data subject (Article 65 of the Law of August 1, 2018 on the organization of the National Data Protection Commission), such as, in particular:

  • The appointment of a DPO
  • Performing an impact assessment of the contemplated processing on the protection of personal data
  • Anonymizing the data processed

In any event, the additional safeguard measures must be put in place in accordance with the nature, scope, context and purposes of the processing, as well as the risks for the rights and freedoms of the relevant data subjects. In this regard, if the data controller elects not to put in place one of the measures listed in Article 65 of the Law of August 1, 2018 on the organization of the National Data Protection Commission, it must then formally document and justify why it chose not to do so.

Finally, processing of special categories of personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes (Article 9(2)(j), GDPR) is allowed under the same conditions (ie, putting in place additional appropriate safeguard measures as defined under Article 65 of the Law of August 1, 2018 on the organization of the National Data Protection Commission).

  1. Processing of special categories of personal data

Genetic data may not be processed for purposes of exercising the controller's own rights in the field of employment and insurance law.

Last modified 10 Jan 2019
Transfer

Transfers of personal data by a controller or a processor to third countries outside of the EU (and Norway, Liechtenstein and Iceland) are only permitted where the conditions laid down in the GDPR are met (Article 44).

The European Commission has the power to make an adequacy decision in respect of a third country, determining that it provides for an adequate level of data protection, and therefore personal data may be freely transferred to that country (Article 45(1)). Currently, the following countries or territories enjoy adequacy decisions: Andorra, Argentina, Canada (with some exceptions), Switzerland, Faroe Islands, Guernsey, Israel, Isle of Man, Jersey, Eastern Republic of Uruguay and New Zealand.

Transfers to third countries are also permitted where appropriate safeguards have been provided by the controller or processor and on condition that enforceable data subject rights and effective legal remedies for the data subject are available. The list of appropriate safeguards includes, among others, binding corporate rules, standard contractual clauses, and the EU-US Privacy Shield Framework. The GDPR has removed the need which existed in some Member States under the previous law to notify and in some cases seek prior approval of standard contractual clauses from supervisory authorities.

The GDPR also includes a list of context specific derogations, permitting transfers to third countries where: 

  1. Explicit informed consent has been obtained
  2. The transfer is necessary for the performance of a contract or the implementation of pre-contractual measures
  3. The transfer is necessary for the conclusion or performance of a contract concluded in the interests of the data subject between the controller and another natural or legal person
  4. The transfer is necessary for important reasons of public interest
  5. The transfer is necessary for the establishment, exercise or defense of legal claims
  6. The transfer is necessary in order to protect the vital interests of the data subject where consent cannot be obtained
  7. The transfer is made from a register, which according to EU or Member State law, is intended to provide information to the public, subject to certain conditions

There is also a very limited derogation to transfer where no other mechanism is available and the transfer is necessary for the purposes of compelling legitimate interests of the controller which are not overridden by the interests and rights of the data subject. Notification to the supervisory authority and the data subject is required if relying on this derogation.

Transfers demanded by courts, tribunals or administrative authorities of countries outside the EU (Article 48) are only recognized or enforceable (within the EU) where they are based on an international agreement such as a mutual legal assistance treaty in force between the requesting third country and the EU or Member State (transfers in response to such requests where there is no other legal basis for transfer will infringe the GDPR).

No specific provisions in the applicable local law.
Last modified 10 Jan 2019
Security

Security

The GDPR is not prescriptive about specific technical standards or measures. Rather, the GDPR adopts a proportionate, context-specific approach to security. Article 32 states that controllers and processors shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk of the processing. In so doing, they must take account of the state of the art, the costs of implementation, and the nature, scope, context and purposes of processing. A 'one size fits all' approach is therefore the antithesis of this requirement.

However, the GDPR does require controllers and processors to consider the following when assessing what might constitute adequate security:

  1. The pseudonymization and encryption of personal data
  2. The ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services
  3. The ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident
  4. A process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing

Article 65 of the Law of August 1, 2018 on the organization of the National Data Protection Commission provides specific technical measures that must be put in place for limited categories of processing (ie, processing of personal data for scientific or historical research purposes or for statistical purposes, and processing of special categories of personal data for archiving purposes in the public interest).

Such measures include:

  • Resorting to an independent trusted third party for the anonymization or pseudonymization of the personal data
  • Log files allowing for the identification of the purpose, date and time of consultation of the personal data as well as for the identification of the person having collected, modified or deleted the personal data
Last modified 10 Jan 2019
Breach Notification

The GDPR contains a general requirement for a personal data breach to be notified by the controller to its supervisory authority, and for more serious breaches to also be notified to affected data subjects. A personal data breach is a wide concept, defined as any "breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed" (Article 4).

The controller must notify a breach to the supervisory authority without undue delay, and where feasible, not later than 72 hours after having become aware of it, unless the controller determines that the breach is unlikely to result in a risk to the rights and freedoms of natural persons. When the personal data breach is likely to result in a high risk to natural persons, the controller is also required to notify the affected data subjects without undue delay (Article 34).

Where the breach occurs at the level of the processor, it is required to notify the controller without undue delay upon becoming aware of the breach (Article 33(2)).

The notification to the supervisory authority must include where possible the categories and approximate numbers of individuals and records concerned, the name of the organization’s data protection officer or other contact, the likely consequences of the breach and the measures taken to mitigate harm (Article 33(3)).

Controllers are also required to keep a record of all data breaches (Article 33(5)) (whether or not notified to the supervisory authority) and permit audits of the record by the supervisory authority.

No specific provisions in the applicable local law.
Last modified 10 Jan 2019
Enforcement

Fines

The GDPR empowers supervisory authorities to impose fines of up to 4% of annual worldwide turnover, or EUR 20 million (whichever is higher).

It is the intention of the European Commission that fines should, where appropriate, be imposed by reference to the revenue of an economic undertaking rather than the revenues of the relevant controller or processor. Recital 150 of the GDPR states that 'undertaking' should be understood in accordance with Articles 101 and 102 of the Treaty on the Functioning of the European Union, which prohibit anti-competitive agreements between undertakings and abuse of a dominant position. Unhelpfully, the Treaty does not define ‘undertaking’ and the extensive case-law is not entirely straightforward, with decisions often turning on the specific facts of each case. However, in many competition cases, group companies have been regarded as part of the same undertaking. The assessment will turn on the facts of each case, and the first test cases under the GDPR will need to be scrutinized carefully to understand the interpretation of ‘undertaking’. Under EU competition law case-law, there is also precedent for regulators to impose joint and several liability on parent companies for fines imposed on those subsidiaries in some circumstances (broadly where there is participation or control), so-called "look through" liability. Again, it remains to be seen whether there will be a direct read-across of this principle into GDPR enforcement.

Fines are split into two broad categories. 
The highest fines (Article 83(5)) of up to EUR 20 million or, in the case of an undertaking, up to 4% of total worldwide turnover of the preceding year, whichever is higher, apply to infringement of:

  • The basic principles for processing including conditions for consent
  • Data subjects’ rights
  • International transfer restrictions
  • Any obligations imposed by Member State law for special cases such as processing employee data
  • Certain orders of a supervisory authority

The lower category of fines (Article 83(4)) of up to EUR 10 million or, in the case of an undertaking, up to 2% of total worldwide turnover of the preceding year, whichever is the higher, apply to infringement of:

  • Obligations of controllers and processors, including security and data breach notification obligations
  • Obligations of certification bodies
  • Obligations of a monitoring body

Supervisory authorities are not required to impose fines but must ensure in each case that the sanctions imposed are effective, proportionate and dissuasive (Article 83(1)).

Fines can be imposed in combination with other sanctions.

Investigative and corrective powers

Supervisory authorities also enjoy wide investigative and corrective powers (Article 58) including the power to undertake on-site data protection audits and the power to issue public warnings, reprimands and orders to carry out specific remediation activities.

Right to claim compensation

The GDPR makes specific provision for individuals to bring private claims against controllers and processors:

  • Any person who has suffered "material or non-material damage" as a result of a breach of the GDPR has the right to receive compensation (Article 82(1)) from the controller or processor. The inclusion of “non-material” damage means that individuals will be able to claim compensation for distress even where they are not able to prove financial loss.
  • Data subjects have the right to mandate a consumer protection body to exercise rights and bring claims on their behalf (Article 80).

Individuals also enjoy the right to lodge a complaint with a supervisory authority (Article 77). 

All natural and legal persons, including individuals, controllers and processors, have the right to an effective judicial remedy against a decision of a supervisory authority concerning them or for failing to make a decision (Article 78).

Data subjects enjoy the right to an effective legal remedy against a controller or processor (Article 79).

The CNPD may:

  • Impose administrative fines as provided for in Article 83 of the GDPR (however, it cannot impose such sanctions with respect to the State or municipalities)
  • Impose on the controller or processor a penalty of up to five per cent (5%) of its average daily turnover in the previous financial year, respectively during the last financial year closed, as long as such controller or processor does not communicate an information requested by the CNPD pursuant to Article 58(1)(a) GDPR, or as long as such controller or processor does not abide by a corrective measure adopted by the CNPD pursuant to Article 58(2)(c)-(j) GDPR
  • Impose sanctions (an imprisonment of 8 days or a fine of between EUR 251 and EUR 125,000) against anyone who knowingly prevents or hinders the performance of the CNPD's missions
  • Order the insertion in full or by extracts of its decisions in newspapers or otherwise, at the expense of the person sanctioned
Last modified 10 Jan 2019
Electronic Marketing

The GDPR will apply to most electronic marketing activities, as these will involve some use of personal data (eg, an email address which includes the recipient's name). The most plausible legal bases for electronic marketing will be consent, or the legitimate interests of the controller (which is expressly referenced as an appropriate basis by Recital 47). Where consent is relied upon, the strict standards for consent under the GDPR are to be noted, and marketing consent forms will invariably need to incorporate clearly worded opt-in mechanisms (such as the ticking of an unticked consent box, or the signing of a statement, and not merely the acceptance of terms and conditions, or consent implied from conduct, such as visiting a website).

Data subjects have an unconditional right to object to (and therefore prevent) any form of direct marketing (including electronic marketing) at any time (Article 21(3)).

Specific rules on electronic marketing (including circumstances in which consent must be obtained) are to be found in Directive 2002/58/EC (ePrivacy Directive), as transposed into the local laws of each Member State. The ePrivacy Directive is to be replaced by a Regulation, a change which is currently forecast for Spring 2019. In the meantime, GDPR Article 94 makes it clear that references to the repealed Directive 95/46/EC will be replaced with references to the GDPR. As such, references to the Directive 95/46/EC standard for consent in the ePrivacy Directive will be replaced with the GDPR standard for consent.

The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing is permissible only in respect of subscribers who have given their prior consent.

Where a supplier obtains from its customers their electronic contact details for electronic mail, in the context of the sale of products or services, that supplier may use those electronic contact details for direct marketing of its own similar products or services provided that customers are clearly and distinctly given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message where the customer has not initially refused such use.

The transmission of unsolicited communications for purposes of direct marketing by means other than those referred to in the previous paragraphs shall be permissible only with the prior consent of the subscriber concerned.

No specific provisions in the applicable local law.

Last modified 10 Jan 2019
Online Privacy

Traffic Data

For the purposes of the investigation, detection and prosecution of criminal offences, and solely with a view to enabling information to be made available, in so far as may be necessary, to the judicial authorities, any service provider or operator processing traffic data must retain such data for a period of six months. This obligation includes data related to the missed phone calls wherever these data are generated, stored or recorded. Beyond this period, the service provider or operator must erase such data unless made anonymous.

Traffic data may be processed for the purposes of marketing electronic communications services or providing value added services, to the extent and for the duration necessary for such supply or marketing of such services, provided that the provider of an electronic communications service or the operator has informed the subscriber or user concerned in advance of the types of traffic data processed and of the purpose and duration of the processing, and provided that the subscriber or user has given his or her consent, notwithstanding his or her right to object to such processing at any time.

Location Data other than Traffic Data

Service providers or operators have also the obligation to retain location data other than traffic data for a period of six months for the purposes of the investigation, detection and prosecution of criminal offences. This obligation includes data related to missed phone calls wherever these data are generated, stored or recorded. Beyond this period, the service provider or operator must erase such data unless made anonymous.

Service providers or operators may process location data other than traffic data relating to subscribers and users only if such data have been made anonymous or the subscriber or user concerned has given his or her consent, to the extent and for the duration necessary for the supply of a value added service.

Service providers and, where appropriate, operators shall inform subscribers or users in advance of the types of location data other than traffic data processed, of the purposes and duration of the processing and whether the data will be transmitted to third parties for the purpose of providing the value added service. Subscribers or users shall be given the possibility to withdraw their consent to the processing of location data other than traffic data at any time.

Where subscriber or user consent has been obtained for the processing of location data other than traffic data, the subscriber or user must continue to have the possibility, using a simple means free of charge, to temporarily refuse the processing of such data for each connection to the network or for each transmission of a communication.

Cookies

Prior informed consent of a subscriber or user is required. The method of providing information and the right to refuse should be as user friendly as possible and, where it is technically possible and effective, the users consent may be expressed by appropriate browser or application settings.

No specific provisions in the applicable local law.

Last modified 10 Jan 2019
Contacts
Olivier Reisch
Olivier Reisch
Partner
T +352 26 29 04 2017
Eugene H.C. Tchen
Eugene H.C. Tchen
Of Counsel
T +352 26 29 04 25 69
Last modified 10 Jan 2019