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Data Protection
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Law

Romania
Romania

Even though Romania has only been a member of the European Union since 1 January 2007, the EU Data Protection Directive 95/46/EC was implemented into national legislation in November 2001 through Law no 677/2001 on the protection of individuals with regards to the processing of personal data and the free movement of such data ("Data Protection Law").

Last modified 31 Jan 2018
Law
Romania

Even though Romania has only been a member of the European Union since 1 January 2007, the EU Data Protection Directive 95/46/EC was implemented into national legislation in November 2001 through Law no 677/2001 on the protection of individuals with regards to the processing of personal data and the free movement of such data ("Data Protection Law").

Last modified 31 Jan 2018
Definitions

Definition of personal data

'Personal Data' is defined under the Data Protection Law as any information referring to an identified or identifiable natural person.  An identifiable person is one who can be identified either directly or indirectly by referring to a personal identification number or to one or several distinctive factors that are typical for the physical, physiological, mental, economic, cultural or social identity of the respective person. The High Court of Cassation and Justice construed the provisions of the Data Protection Law and the provisions of Law no. 554/2001 regarding access to public information in the sense that the name and surname of an individual represent personal data, irrespective of whether, in a given scenario, such personal data may actually lead to the identification of a natural person.

Definition of sensitive personal data

Under the Data Protection Law, the following categories of data are deemed as sensitive personal data (data presenting special risks):

  • data regarding racial or ethnical origin;
  • political, religious, philosophical or other similar beliefs;
  • affiliation to certain trade unions;
  • physical or mental health condition;
  • sexual life; and
  • criminal or administrative offences.

Moreover, according to the template notification form issued by the National Supervisory Authority for Personal Data Processing, genetic, biometric data, national identification number, series and number of identification documents are also categorised as sensitive personal data.

Last modified 31 Jan 2018
Authority

The National Supervisory Authority For Personal Data Processing
(in Romanian ‘Autoritatea Nationala de Supraveghere a Prelucrarii Datelor cu Caracter Personal’ or 'ANSPDCP')

28-30 Magheru Blvd
District 1, Bucharest

T +40 318 059 211
F +40 318 059 602

www.dataprotection.ro

Last modified 31 Jan 2018
Registration

ANSPDCP operates the national registry of data controllers which can be accessed online free of charge. Public and private entities processing certain types of personal data must notify ANSPDCP in respect of their personal data processing and obtain a data controller number.

The processing of the following types of personal data requires prior notification to ANSPDCP unless the processing is provided for by law:

  1. personal data related to racial or ethnic origin, political, religious, philosophical beliefs or beliefs of a similar nature, trade union membership as well as data regarding the health condition and sexual life;
  2. genetic and biometric data;
  3. geo-location data collected, directly or indirectly, through electronic communication means;
  4. personal data related to offenses, criminal convictions, safety criminal measures or administrative sanctions applied to the data subject, when the processing is performed by private entities;
  5. personal data processed by electronic means, having as purpose the monitoring/evaluation of certain personality traits, such as professional competence, credibility, behaviour or other related traits;
  6. personal data processed by electronic means within record systems having as purpose the adoption of automated individual decisions regarding the creditworthiness, the economical-financial condition, deeds which trigger the disciplinary, administrative or criminal liability of natural persons, when the processing is performed by private entities;
  7. personal data of minors, processed for direct marketing activities;
  8. personal data of minors processed through internet or electronic messaging; and
  9. personal data mentioned under point 1 above, processed by associations, foundations or any other non profit organizations exclusively in order to achieve the specific purpose of the organization, when the data is disclosed to third parties without the consent of the data subject.

Personal data processed through video surveillance systems, including the transfer of such data to any other state, is also subject to prior notification to the ANSPDCP. The only exception to this rule is related to personal data processed by natural persons for their personal use, including personal data obtained through the video monitoring of public areas.

Based on the standard notification form issued by ANSPDCP, the notification should include the following information:

  1. the name and details of the data controller;
  2. the name and details of the data controller's representative (where the data controller is located in a third country);
  3. the personal data that are being processed (both sensitive and non-sensitive);
  4. the purpose and legal basis of processing;
  5. the categories of targeted data subjects;
  6. the categories of recipients;
  7. information regarding the transfer outside Romania, either within the European Economic Area, to states whose level of protection has been considered as adequate by the European Commission or to other third party countries;
  8. identification details of entities acting as processors on behalf of the data controller;
  9. the manner in which data subjects are informed regarding their rights: verbally, via a website, or through a document (in which case it must be enclosed);
  10. the estimated duration of personal data processing; and
  11. data security measures. In this sense, the notification must include the security policy of the data controller describing the measures undertakes in order to ensure the security of the personal data processed.

Should the controller process personal data for various purposes, a notification must be filed separately for each purpose, unless such purposes can be correlated.

The notification procedure involves two stages. The first step is to file the online application. The second step is to send by post to ANSPDCP the first page of the notification stamped and signed by the legal representative of the data controller.

Once registered in the general registry, all data controllers shall be allocated a registration number which must be indicated in all official documents of the respective entity relating to the declared purpose of processing.

Last modified 31 Jan 2018
Data Protection Officers

Currently, there is no requirement in Romania for data controllers to appoint a data protection officer.

Last modified 31 Jan 2018
Collection & Processing

Under Data Protection Law, data controllers may collect and process personal data provided that the data subject has expressly and unequivocally consented thereto. The data subject’s consent is not required under the following circumstances:

  • the processing is necessary for the performance of a contractual or pre-contractual arrangement to which the data subject is a party;
  • where the data controller needs to protect the life, physical integrity or health of the data subject or another person;
  • the data controller must comply with a legal obligation;
  • the processing is necessary for the performance of public interest measures;
  • the data controller has a legitimate reason for processing, provided that fundamental civil liberties of data subjects are not breached  
  • when the processing concerns data which is obtained from publicly accessible documents, according to the law; and 
  • processing is performed exclusively for statistical, historical or scientific research purposes.

Where sensitive data is processed, apart from the above conditions, data controllers must comply with additional requirements, depending on the specific type of sensitive data in question.

Data controllers must ensure that the data processed are proportional in relation to the declared purpose of processing, and not excessive.

Data subjects must be thoroughly informed in respect of data processing activities. They must be provided with the following information:

  • the identity of the data controller and its representative (if applicable);
  • the purpose of data processing;
  • the recipients of personal data and details of any transfer abroad;
  • rights provided by law in favour of data subjects as well as their manner of exercise; and
  • the consequences of the refusal to provide personal data.

ANSPDCP may request the data controller to provide data subjects with additional information, depending on the specific details of the processing.

Last modified 31 Jan 2018
Transfer

Different rules must be observed depending on the destination country of the personal data. Personal data transfers within the EU, the EEA (or to countries with an adequate level of protection) need only be notified to ANSPDCP when the transfer involves the categories of personal data mentioned under section "Registration" above. 

In this case, if the personal data is transferred to another EU Member State or to the EEA, no other requirement must be met other than ticking the appropriate box in the on line notification form.

If the data is transferred to a country with an adequate level of data protection, such countries must be explicitly listed on the online notification form.

Personal data transfers to third countries (countries considered as not offering an adequate level of protection) require an authorization from ANSPDCP.  In this case the transfer is permitted provided that the controller has obtained the data subject’s consent, or has concluded a data transfer agreement with the recipient of data located in the respective third country. This contract must be submitted to ANSPDCP for its review.

In July 2016 the European Commission adopted the EU-U.S. Privacy Shield. Under this new framework, the United States is deemed to be a country with an adequate level of protection only if the entities to which the personal data is transferred are certified under Privacy Shield.  

As of March 2014, the ANSPDCP accepts the international transfer of data based on Binding Corporate Rules.

Last modified 31 Jan 2018
Security

Data controllers and data processors must take appropriate technical and organizational measures to protect personal data against unauthorised or unlawful access or processing and against accidental or unlawful loss or destruction alteration, unauthorised disclosure or access to personal data, in particular where the processing involves the transmission of data over a network, and against all forms of illegal processing.

The measures taken must ensure a level of security appropriate to the nature of the data.

Minimum security measures that data controllers must comply with are described in Order no 52/2002 issued by the Romanian Ombudsman.

Data controllers must ensure that when processing data through data processors, the latter have also agreed to comply with data security obligations.

Last modified 31 Jan 2018
Breach Notification

There is not yet a mandatory requirement in the Data Protection Law to report data security breaches or losses to ANSPDCP or to data subjects.

Last modified 31 Jan 2018
Enforcement

ANSPDCD is entitled to investigate any breach of Data Protection Law ex officio or following a complaint filed by a prejudiced data subject. In this sense, ANSPDCP may perform an audit over data processing activities performed by data controllers.

ANSPDCP may impose administrative fines for failure to comply with the Data Protection Law, ranging from approximately EUR 112 to EUR 11,200 (the highest sanction is applied for failure to comply with security measures) per each offence. The level of fines is higher in case of failure to comply with the regulations in the electronic communications sector, as further detailed below.

Under certain conditions, failure to comply with Data Protection Law may be considered as a criminal offence, in which case ANSPDCP shall contact the competent criminal authorities.

In addition to this, ANSPDCP may impose the temporary suspension of data processing activities as well as the partial or complete deletion of processed data.

Last modified 31 Jan 2018
Electronic Marketing

Under theData Protection Law, data subjects must be granted the right to oppose the processing of their personal data for direct marketing purposes (opt-out). The processing of personal data for electronic marketing purposes is further regulated under Law no. 506/2004 on the processing of personal data in the electronic communications sector implementing Directive 2002/58/CE ("Law 506/2004"). According to this law, it is forbidden to send commercial communications using automatic systems (that do not require the intervention of a human operator), by fax or electronic mail or any other similar method, except where data subjects have expressly consented in advance. It may be considered that SMS marketing falls under the same restrictions.

Moreover, ifthe data controller has directly obtained the e-mail address of a data subject upon the sale or provision of a certain service to the data subject, the controller may use the respective address for the purpose of sending electronic communications regarding similar products or services, provided that data subjects are clearly and expressly offered the possibility to oppose by way of an easily accessible and free of charge method, not only when the e-mail address is collected but also with each commercial communication received by the data subject.

ANSPDCP has not issued any specific guidelines in relation to electronic marketing.

Last modified 31 Jan 2018
Online Privacy

The processing of traffic data, location data and the implementation of cookies are dealt with under Law 506/2004.

Traffic data

Traffic Data relating to subscribers and users processed and stored by the provider of a public communications network or publicly available electronic communications service must be erased or made anonymous when it is no longer needed for the purpose of the transmission of a communication but no later than three years as of the date of such a communication. 

However, traffic data may be retained for the purpose of marketing the services offered to data subjects, or in view of the provision of value added services, solely throughout the marketing period and provided that data subjects have previously consented to the processing of traffic data.

The processing of traffic data for billing purposes or the establishment of payment obligations for interconnection is permitted solely for a period of three years following the due date of the respective payment obligation.

The processing of traffic data for the establishment of contractual obligations of the communication services subscribers, with payment in advance, is permitted solely for a period of three years following the date of the communication. 

Data subjects may withdraw their consent at any time.

The provider of electronic communication services must inform data subjects in respect of the processed traffic data, and the duration of processing, prior to obtaining their consent.

Communication service providers and entities acting under their authority may process traffic data for:

  • management of billing and traffic;
  • dealing with enquiries of data subjects;
  • prevention of fraud; or
  • the provision of communication services or value added services, and is permitted only if it is necessary to fulfil such purpose.  

Location data

The processing of such data is permitted in each of the following instances:

  • the data is rendered anonymous;
  • the data subjects have consented to such processing for the duration necessary for the performance of value added services; or
  • when the purpose of the value added service is the unidirectional and non-differentiated transmission of information towards users.

The service provider must inform the users or subscribers, prior to obtaining their consent, in respect of the type of location data which will be processed, of the purposes and duration of the processing and whether the data will be transmitted to a third party for the purpose of providing the value added service. Users or subscribers must be able to withdraw their consent at any time.

Where consent of the users or subscribers has been obtained for the processing of location data other than traffic data, communication service providers must allow users, using a simple means and free of charge, to temporarily refusing the processing of such data for each connection to the network or for each transmission of a communication.

Cookies

The storing of cookies on user terminals is permitted subject to the following cumulative conditions:

  • users have expressly consented thereto (Law 506/2004 also provides that consent may be given by way of browser settings or other similar technologies); and
  • the information requirements provided by Data Protection Law have been complied with in a clear and user-friendly manner, to include references regarding the purpose of processing of the information stored by users.

Should the service provider allow the storing of third party cookies within a users’ computer terminal, they will have to be informed about the purpose of such processing and the manner in which browser settings may be adjusted in order to refuse third party cookies.

Consent is not required where cookies are:

  • used for the sole purpose of carrying out the transmission of a communication over an electronic communications network; or
  • strictly necessary for the provision of an information service expressly requested by the subscriber or the user.

Failure to comply with the requirements of Law 506/2004 is classified as a minor offence and is sanctioned with fines ranging from EUR 1,120 to EUR 22,500. In the case of companies whose turnover exceeds approximately EUR 1,120,000, the amount of fines may reach up to 2% of the respective company's turnover.

Upon request of the courts of law, of the criminal prosecution authorities or of the authorities competent in the area of national defence and security, with the prior approval of the judge, providers of electronic communication services offered to the public and providers of electronic communication public networks shall make available, as soon as possible, and within 48 hours, traffic data, data regarding user terminals, as well as geo-location data.

Last modified 31 Jan 2018
Contacts
Ana-Maria Andronic
Ana-Maria Andronic
Head of Intellectual Property and Technology
T +40 372 155 816
Andrei Stoica
Andrei Stoica
Junior Associate
T +40 372 155 870
Paul Babus
Paul Babus
Junior Associate
T +40 372 155 883
Last modified 31 Jan 2018