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Data Protection
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Law

Portugal
Portugal

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 25 May 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.

Currently, processing of personal data in Portugal is mainly governed by Law 67/98, of 26 October (Personal Data Protection Law, as amended by Law no. 103/2015, of 24 August and enacted pursuant to Directive 95/46/EC) (“Personal Data Protection Law”). Relevant data protection provisions in the context electronic communications may also be found in Law 41/2004, of 18 August (Law on the processing of personal data and the protection of privacy in the electronic communications, as amended by Law 46/2012, of 29 August and enacted pursuant to Directive 2002/58/EC) (with subsequent amendments arising from Article 2 of Directive 2009/136/EC).

As the draft GDPR implementation law is yet to be passed in the Parliament, it is anticipated that its publication will only occur after the GDPR application date.

In this scenario, the Personal Data Protection Law will remain in force after 25 May 2018 (i.e. the provisions that do not directly contradict the GDPR), which may, potentially, create some difficulties in the application of the new data protection legal regime until subsequent entry into force of the GDPR implementation law.
Last modified 24 May 2018
Law
Portugal

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 25 May 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.

Currently, processing of personal data in Portugal is mainly governed by Law 67/98, of 26 October (Personal Data Protection Law, as amended by Law no. 103/2015, of 24 August and enacted pursuant to Directive 95/46/EC) (“Personal Data Protection Law”). Relevant data protection provisions in the context electronic communications may also be found in Law 41/2004, of 18 August (Law on the processing of personal data and the protection of privacy in the electronic communications, as amended by Law 46/2012, of 29 August and enacted pursuant to Directive 2002/58/EC) (with subsequent amendments arising from Article 2 of Directive 2009/136/EC).

As the draft GDPR implementation law is yet to be passed in the Parliament, it is anticipated that its publication will only occur after the GDPR application date.

In this scenario, the Personal Data Protection Law will remain in force after 25 May 2018 (i.e. the provisions that do not directly contradict the GDPR), which may, potentially, create some difficulties in the application of the new data protection legal regime until subsequent entry into force of the GDPR implementation law.
Last modified 24 May 2018
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 Personal Data Protection Law defines ‘personal data’ as any given information, in any format, including sound and image, related to a specific or an identifiable natural person (‘data subject’). An identifiable natural person is one who can be identified, directly or indirectly, namely by reference to a specific number or to one or more elements concerning his/her physical, physiological, mental, economic, cultural or social identity.

On the other hand, ‘sensitive personal data’ is defined as any personal data revealing one’s philosophical or political beliefs, political affiliations or trade union membership, religion, private life and racial or ethnic origin, and data concerning health or sex life, including genetic data.

 

Last modified 24 May 2018
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 (i.e. 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.

Comissão Nacional de Proteção de Dados
(‘National Commission for the Protection of Data’. also known as ‘CNPD’).
Rua de São Bento n°. 148, 3°
1200-821 Lisbon
T +351 21 392 84 00
F +351 21 397 68 32
geral@cnpd.pt
www.cnpd.pt
Last modified 24 May 2018
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 (e.g. 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 organisation and must be provided to supervisory authorities on request. This is a sizeable operational undertaking.

 

Under the Personal Data Protection Law, as a general rule, data controllers who process personal data shall notify such activity to the Data Protection Authority ('CNPD'), unless a specific exemption applies. For instance, CNPD has issued decisions on the exemption of notification being applicable to activities related with salary processing, invoicing and client/ supplier management, entry and exit of persons in buildings, among others.

For certain categories of data (sensitive data, data regarding unlawful activities or criminal and administrative offenses or credit and solvability data) and certain types of processing, prior authorisation from the CNPD is required, with any variations or changes to the processing of personal data determining mandatory amendment of the registration.
Notification is made electronically through CNPD’s website by means of an official form including the following information:

  • identity of the controller and its representative;
  • purposes of the processing;
  • third party entity responsible for the processing (data processor), if applicable;
  • categories of entities to which the personal data is communicated, their identification and the purposes of communication if applicable;
  • all the personal data that will be processed, being necessary to indicate if sensitive data will be collected, as well as data concerning the suspicion of illegal activities, criminal and/or administrative offences and data regarding credit and solvability;
  • grounds for lawful processing and a brief description of the data collection method used;
  • storage period: the way of exercising the right of access and rectification;
  • combination of personal data, if applicable;
  • available means and methods for updating the data;
  • any transfers of data to third countries, including a list of such entities and countries, what personal data is transferred, reasons and respective grounds for the transfer and the measures adopted in each transfer; and
  • physical and logical security measures implemented.
    It should be noted that, when the GDPR enters into force, these provisions will most likely be considered tacitly revoked, as they contradict the Regulation and namely one of its main principles: the principle of accountability.

Last modified 24 May 2018
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; or
  • 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 penalised 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; and
  • 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.

The current Personal Data Protection Law does not provide for the requirement of appointing Data Protection Officers. Therefore, until the application date of the GDPR, organisations are not required to appoint a data protection officer.

As regards the mandatory communication of the data protection officer to the supervisory authority, in the context of Article 37 (7) of the GDPR, there are still no defined procedures and/or mechanisms.
Last modified 24 May 2018
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 (the "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 (the "purpose limitation principle");
  • adequate, relevant and limited to what is necessary in relation to the purpose(s) (the "data minimization principle");
  • accurate and where necessary kept up to date (the "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 (the "storage limitation principle"); and
  • processed in a manner that ensures appropriate security of the personal data, using appropriate technical and organizational measures (the "integrity and confidentiality principle").

The controller is responsible for and must be able to demonstrate compliance with the above principles (the "accountability principle"). Accountability is a core theme of the GDPR. Organisations 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 recognised 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; or
  • 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 defence 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; or
  • 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 authorised by Member State domestic law (Article 10).

Processing for a Secondary Purpose

Increasingly, organisations wish to 're-purpose' personal data - i.e. 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 pseudonymisation.

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, i.e. 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; and
  • 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, whilst 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 (e.g. commonly used file formats recognised 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 taking, 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. authorised by EU or Member State law; or 
  3. the data subject has given their explicit (i.e. 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.

 

Personal data may only be processed if the data subject has given his/her unambiguous consent or any of the lawfulness grounds are applicable.
Grounds for Lawful Data Processing are the following:

  • execution of an agreement(s) where the data subject is party or in previous diligences for the conclusion of an agreement at the request of the data subject;
  • compliance with a legal obligation that the controller is subject to;
  • protection of vital interests of the data subject if the latter is physically or legally unable of giving his/her consent
  • performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data is disclosed, or
  • pursuing legitimate interests of the controller or the third party to whom the data is disclosed, except where such interests should be overridden by interests or fundamental rights, freedoms and guarantees of the data subject.

Moreover, the data controller must provide the data subject with all the relevant processing information, which includes the identity of the data controller, the purposes of processing, the recipients or categories of personal data and the means made available to the data subject to access, amend and delete its data.

Last modified 24 May 2018
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 amongst others binding corporate rules, standard contractual clauses, and the EU - U.S. 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 defence of legal claims;
  6. the transfer is necessary in order to protect the vital interests of the data subject where consent cannot be obtained; or
  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 recognised 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; a transfer in response to such requests where there is no other legal basis for transfer will infringe the GDPR.

As regards data transfers performed within the EU/EEA countries, mandatory notification to the Data Protection Authority ('CNPD') is required and, in principle, data processing may commence immediately thereafter.

Transfers to non-EU/EEA countries can only take place if the recipient’s country ensures an adequate level of protection. In any case an authorisation procedure with the CNPD is mandatory and data processing can only commence once the authorisation is issued.

Exceptionally, transfers performed under specific circumstances are possible, notably according to Standard Model Clauses or to Privacy Shield Framework holders. In such cases, data processing can be done, in principle, immediately after filing with CNPD.

CNPD has issued specific guidelines on IntraGroup Agreements (IGA) involving transfers of personal data to non-EU/EEA countries and considers that such transfers are always dependant on its prior authorisation (assessing if a determined IGA presents sufficient guarantees).

When IGA agreements follow EU model clauses, although designed for bilateral relationships, CNPD understands that there are grounds to authorise the transfers in an expedite manner if the data controller declares that such agreement is identical and in accordance with EU model clauses.
Last modified 24 May 2018
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 organisational 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 pseudonymisation 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; and
  4. a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
The controller must implement adequate technical and organisational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular when processing involves transmission of data over a network, and against all other unlawful forms of processing.

Other specific security measures are imposed regarding sensitive personal data, namely access control measures.
Last modified 24 May 2018
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 organisation’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.

Law 41/2004, of 18 August establishes that companies that provide electronic communications services accessible to the public shall, without undue delay, notify the Data Protection Authority ('CNPD') of a personal data breach. When the personal data breach may affect negatively the subscriber’s or user’s personal data, companies providing electronic communications services to the public should also, without undue delay, notify the breach to the subscriber or user so that they can take the necessary precautions.

For these purposes, a negative effect on personal data exists when the breach may result namely in theft or identity fraud, physical harm, significant humiliation or damage to reputation.

Additionally, if a person or entity is affected by a breach under the Personal Data Protection Law, he/she is entitled to file a claim to the CNPD and/or file a civil lawsuit to seek compensation for damages.
Last modified 24 May 2018
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 scrutinised 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; and
  • 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; and
  • 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).

In Portugal, Comissão Nacional de Proteção de Dados (‘CNPD’) is responsible for the enforcement of the Personal Data Protection Law.

Failure to comply with data protection and privacy legal requirements and formalities may result in criminal, civil and administrative liability. Depending on the specific circumstances, criminal offenses may be punished with imprisonment up to 2 (two) years or fine up to 240 days and administrative offences may be punished with fine up to EUR 29,927.88 (additional penalties may be imposed).

The Personal Data Protection Law determines that any person who intentionally:

  • fails to notify or seek CNPD’s authorisation for data processing;
  • provides false information in the notification or applications for authorisation for the processing of personal data;
  • misappropriates or uses personal data in an incompatible manner with the purpose of the collection or with the legalization document (e.g. contract);
  • promotes or carries out an illegal combination of personal data;
  • fails to comply with the obligations provided for in the Personal Data Protection Law or other data protection legislation within the time limit set by the CNPD for compliance; or
  • continues to allow access to open data transmission networks to controllers who fail to comply with the provisions of this Act after notification by the CNPD not to do so, shall be subject to a penalty up to one year’s imprisonment or a fine of up to 120 days.

Last modified 24 May 2018
Electronic Marketing

The GDPR will apply to most electronic marketing activities, as these will involve some use of personal data (e.g. 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.

As established under Law 41/2004, of 18 August, sending unrequested communications for direct marketing purposes to natural persons is subject to express prior consent of the subscriber or user (that is, the ‘opt in’ rule applies). This includes use of automated calling and communications that do not rely on human intervention (automatic call devices), fax or electronic mail, including SMS, EMS, MMS and other similar applications.

As regards direct marketing communications to legal persons, these are allowed insofar as ‘opt out’ is offered. Legal persons may refuse future communications and request registration in the non-subscribers list.

This does not prevent the supplier that has obtained its clients’ data and contacts in connection with the sale of a product or service to use such data for direct marketing of its own products or services or products or services similar to the ones provided.

Nevertheless, the supplier shall ensure that these clients are given the opportunity to object to the use of such data, free of charge, clearly and explicitly, and in an easy manner, at the time of the respective collection, and on each message (when the client did not opt-out initially upon collection of the data).

Moreover, sending electronic mail for direct marketing purposes via e-mail where the identity of the sender is disguised or concealed, as well as where there is no valid means of contact to send a request to stop these communications or encouraging recipients to visit websites that violate these rules is strictly forbidden.
Last modified 24 May 2018
Online Privacy

Cookie compliance

As determined by Law 41/2004, of 18 August, storage of data and the possibility of accessing data stored in a subscriber/ user’s terminal is only allowed if the subscriber/user has provided prior consent. Such consent must be based on clear and comprehensive information.

This does not prevent technical storage or access for the sole purpose transmitting communications over an electronic communication network, if strictly necessary for the provision of a service expressly requested by the subscriber/user.

Traffic Data

Traffic data must be erased or anonymised when no longer needed for the transmission of communications. Processing of traffic data requires prior express consent and the user or subscriber shall be given the possibility to remove it at any time. Such processing may only be carried out to the extent and for the time strictly necessary for the sale of electronic communications services or the provision of other value-added services.
Processing of traffic data is admissible when required for billing and payment and only until the end of the period during which the bill may lawfully be challenged or payment pursued.

Complete and accurate information on the type of data being processed must be provided, as well as the processing purposes and duration and the possibility of disclosure to third parties for the provision of value added services. Processing should be limited to workers/employees in charge of billing or traffic management, customer inquiries, fraud detection, sale of electronic communications services accessible to the public, or the provision of value added services, as well as to the strictly necessary information for the purposes of carrying out such activities.
Location Data

Processing of location data is allowed only if such data is anonymised or to the extent and for the time necessary for the provision of value added services, provided that prior express consent was obtained. Prior information to the data subjects must also be provided.

Companies must ensure there is an option to withdraw consent at any time, or to temporarily refuse the processing of such data for each connection to the network or for each transmission of a communication, in a simple manner and free of charge.
Non-compliance with these ‘Opt-in’ rules is considered an administrative offence, punishable with fines ranging from EUR 5,000 to EUR 5,000,000.

Last modified 24 May 2018
Contacts
Joao Costa Quinta
Joao Costa Quinta
Partner
T +351 213 583 620
Last modified 24 May 2018