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Data Protection
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Law

Slovak Republic
Slovak Republic

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.

As a member of the European Union, Slovakia is bound by the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (the "GDPR").

Furthermore, Slovakia adopted Act No. 18/2018 Coll. on the protection of personal data and on amending and supplementing certain acts (the "Slovak Data Protection Act") implementing the GDPR, which became effective as of 25 May 2018.

Last modified 14 Jan 2019
Law
Slovak Republic

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.

As a member of the European Union, Slovakia is bound by the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (the "GDPR").

Furthermore, Slovakia adopted Act No. 18/2018 Coll. on the protection of personal data and on amending and supplementing certain acts (the "Slovak Data Protection Act") implementing the GDPR, which became effective as of 25 May 2018.

Last modified 14 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 definitions provided by the GDPR apply.

Last modified 14 Jan 2019
Authority

Enforcement of the GDPR is the prerogative of data protection regulators, known as supervisory authorities (similar to 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 GDPR.

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." 

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. ead supervisory authority is therefore of somewhat limited use to multinationals.

 

The Data Protection Office of the Slovak Republic (the ‘Slovak Office’) is:

Úrad na ochranu osobných údajov Slovenskej republiky (Official Slovak Name)

Hraničná 12
820 07, Bratislava 27
Slovak Republic

The Slovak Office is the supervisory authority and is responsible for overseeing the Slovak Data Protection Act and the GDPR in Slovakia.

Last modified 14 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 (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.

There is no registration or notice obligation to the Slovak Office as supervisory authority required anymore.

Last modified 14 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; 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.

There is an online form on the website of the Slovak Office which should be completed in order to notify the supervisory authority of the appointment of a DPO.

Last modified 14 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:

  • 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")
  • 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. Organizations must not only comply with the GDPR but also be able to demonstrate compliance for potentially years after a particular decision relating to processing personal data was rendered. Record-keeping, auditing and appropriate governance will all play 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
  • 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
  • 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, organisations 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 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
  • 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 (eg, 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 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. Authorised 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.

Collection and processing of personal data is governed by the GDPR.

However, there is specific regulation in this respect in the fourth part of the Slovak Data Protection Act. Pursuant to Section 78 of the Slovak Data Protection Act, these specific situations are as follows:

  • a controller may process personal data without the consent of a data subject if the processing of personal data is necessary for academic, artistic or for literary purposes;
  • a controller may process personal data without the consent of a data subject if the processing of personal data is necessary for the purposes of informing the public by means of mass media and if the personal data are processed by a controller which is authorised to do such business activity;
  • a controller who is the employer of a data subject is authorized to provide his / her personal data or to make public his / her personal data in the scope of academic title, name, surname, position, personal employee´s number, department, place of work performance, telephone number, fax number, work email address and the identification details of employer, if this is necessary in connection with the performance of the employment duties of a data subject. Such provision of personal data or making them public shall not interfere with the reputability, dignity and security of a data subject;
  • in the processing of personal data, a birth number may be used for the purpose of identifying a natural person only if its use is necessary for the purpose of processing. A data subject shall grant the explicit consent. Processing of a birth number on the legal basis of consent of a data subject shall not be excluded by a special regulation. Making public a birth number is prohibited; this does not apply if a data subject makes public a birth number;
  • a controller may process genetic, biometric and health-related data on the legal basis of a special regulation or an international treaty to which the Slovak Republic is bound;
  • if a data subject is dead, the consent required may be given by a close person. The consent is not valid if at least one close person has disagreed in writing.
Last modified 14 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 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.

Pursuant to the GDPR, the free movement of personal data between the Slovak Republic and EU Member States is guaranteed; the Slovak Republic shall not restrict or prohibit the transfer of personal data in order to protect the fundamental rights of natural persons, in particular their right to privacy in connection with the processing of their personal data.

The transfer of personal data to third countries or international organisations is governed by the GDPR.

Last modified 14 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 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.

Controllers and processors shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk. The rights and obligations in regard to the security of personal data are governed by the GDPR.

In this respect, the Slovak Office issued Decree No. 158/2018 Coll. on Procedure when Assessing the Impact on the Protection of Personal Data as of 29 May 2018.

Last modified 14 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 organisation’s data protection officer or other contact
  • The likely consequences of the breach and the measures taken to mitigate harm 

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

Breach notifications are governed by the GDPR.

Last modified 14 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 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).

The Slovak Office has various powers to ensure compliance with the Slovak Data Protection Act and the GDPR.

For example, the Slovak Office is entitled to:

  • on request, provide information to a data subject in relation to the exercise of her / his rights;
  • order a controller or a processor to provide the necessary information;
  • order a data controller to notify a data subject of a personal data breach;
  • enter the premises of a controller or a processor;
  • impose a corrective measure or a fine.
Last modified 14 Jan 2019
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.

In general, unsolicited electronic marketing requires prior opt-in consent. The opt-in requirement is waived under the ‘same service/product’ exemption. The exemption concerns marketing emails related to the same products/services as previously purchased from the sender by the user provided that:

  • the user has been informed of the right to opt-out prior to the first marketing email

  • the user did not opt-out, and

  • the user is informed of the right to opt-out of any marketing email received. The exemption applies to electronic communication such as electronic text messages and email but does not apply with respect to communications sent by fax.

Direct marketing emails must not disguise or conceal the identity of the sender.

Pursuant to the GDPR, where personal data are processed for direct marketing purposes, the data subject shall have the right to object at any time to the processing of personal data concerning him or her for such marketing, which includes profiling to the extent that it is related to such direct marketing.Where the data subject objects to processing for direct marketing purposes, the personal data shall no longer be processed for such purposes.

Electronic marketing shall be in particular governed by Act No. 351/2011 Coll. on Electronic Communications, as amended (the "ECA").

Under the ECA, processing of the traffic data of a subscriber or user for the purposes of marketing services or the purposes of ensuring value added services by any public network or service providers is possible solely with the prior consent of the subscriber or the user. Prior to obtaining the consent, the public network or service providers are obliged to inform the subscriber or user on:

  • the type of the traffic data processed;
  • the purpose of the traffic data processing, and
  • the duration of the data processing.

For the purposes of direct marketing, the call or use of automatic calls and communications systems without human intervention, facsimile machines, e-mail, including SMS messages to the subscriber or user, who is a natural person, is allowed solely with his/her prior consent. Such consent must be provable. Users or subscribers are entitled to withdraw such consent at any time.

The prior consent of the recipient of a marketing e-mail shall not be required in the case of direct marketing of similar products and the services of a person, that has obtained electronic contact information of the recipient from the previous sale of its own product and/or service to such recipient and in line with the provisions of the ECA.

The recipient of an e-mail shall be entitled to refuse at anytime, by simple means and free, of charge such use of electronic contact information at the time of its collection and on the occasion of each message delivered where the recipient has not already refused such use.

Both,

  • sending e-mails for the purposes of direct marketing without the determination of a valid address to which the recipient may send a request that he/she is no longer willing to receive such communication, and
  • encouragement to visit a website in contradiction with a special regulation,

shall be prohibited.

Last modified 14 Jan 2019
Online Privacy

As regards the protection of privacy and protection of personal data processed in the electronic communications sector, the provisions of the ECA shall apply. The ECA implemented e.g. Directive 2002/58/EC (as amended by Directive 2009/136/EC).

Under the ECA, the public network or service provider is obliged to ensure technically and organisationally the confidentiality of the communications and related traffic data, which are conveyed by means of its public network and public services. In particular recording, listening, or storage of data (or other kinds of an interception or a surveillance of communications and data related thereto) by persons other than users, or without the consent of the concerned users, shall be prohibited. However, this does not prohibit the technical storage of data, which is necessary for the conveyance of communications. However, the principle of confidentiality shall still apply.

Further to this, the network or service provider (‘undertaking company’) shall not be held liable for the protection of the conveyed information if such information can be directly listened to or obtained at the location of the broadcasting and/or reception.

However, this ban does not apply to temporary recording and storing of messages and related traffic data if it is required:

  • for the provision of value added services ordered by a subscriber or user;
  • to prove a request to establish, change or withdraw the service, or
  • to prove the existence or validity of other legal acts, which the subscriber, user or undertaking company has made.

Under the ECA, each person that stores or gains access to the information stored in the terminal equipment of a user must be authorised for such processing by the concerned user whose consent must be based upon exact and complete information regarding the purpose of such processing of the data. In this regard, also the use of the respective setting of the web browser or other computer programme is considered (implied) consent.

Traffic data

Traffic data qualifies as personal data. Providers of telecommunication services may collect and use the following traffic data to the following extent:

  • the number or other identification of the lines in question or of the terminal

  • authorisation codes, additionally the card number when customer cards are used

  • location data when mobile handsets are used

  • the beginning and end of the connection, indicated by date and time and, where relevant to the charges, the volume of data transmitted

  • the telecommunications service used by the user
  • the termination points of fixed connections, the beginning and end of their use, indicated by date and time and, where relevant to the charges, the volume of data transmitted, and

  • any other traffic data required for setup and maintenance of the telecommunications connection and for billing purposes.

Stored traffic data may be used after the termination of a connection only where required to set up a further connection, for billing purposes or where the user has requested a connection overview.

The service provider may collect and use the customer data and traffic data of subscribers and users in order to detect, locate and eliminate faults and malfunctions in telecommunications systems. This applies also to faults that can lead to a limitation of availability of information and communications systems or that can lead to an unauthorized access of telecommunications and data processing systems of the users.

Otherwise, traffic data must be erased by the service provider without undue delay following termination of the connection.

Service providers have to inform the users immediately, if any faults of data procession systems of the users become known. Furthermore the service provider has to inform the users about measures for detecting and rectifying faults.

Location Data

Location Data qualifies as personal data. This data may only be processed as required for the provision of requested services and is subject to prior information of the user. For all other purposes, the user’s informed consent must be obtained. According to Section 4a BDSG, 13 German Telemedia Act (TMG) this means that:

  • the user’s consent must be intentional, informed and clear. For this purpose the user must be informed on the type, the scope, the location and the purpose of data collection, processing and use including any forwarding of data to third parties

  • the user’s consent must be recorded properly

  • the user must be able to access the content of his consent declaration any time. It is sufficient that such information is provided upon the users’ request

  • the user’s consent must be revocable at all times with effect for the future.

Users must always be informed of the use of cookies in a privacy notice. Cookies may generally be used if they are required in order to perform the services requested by the user. Otherwise, users must be provided with an opt-out mechanism. For this purpose, information on the use of cookies together with a link on how to adjust browser settings in order to prevent future use is sufficient.

Germany has not yet taken any measures to implement the e-privacy directive. However, in February 2014 the German Federal Ministry of Economic declared that the European Commission considers the Cookie Directive as implemented in Germany. However, since the European Commission´s exact interpretation is not known, a final official clarification is awaited. It therefore remains to be seen whether an active opt in, e.g. by clicking on a pop up screen will be required in the future.

Different rules apply in the case of tracking technologies which collect and store a user’s IP address. Since IP addresses qualify as personal data, their processing for tracking and marketing services requires active opt-in consent.

 

Traffic Data

Traffic Data can only be processed for the purpose of the conveyance of a communication on an electronic communications network or for the invoicing thereof. The Traffic Data related to subscribers or users may not be stored without the consent of the person concerned and the undertaking company is required, after the end of a communication transmission, without delay, to destroy or make anonymous such Traffic Data, except as provided otherwise by the ECA.

If it is necessary for the invoicing of the subscribers and network interconnection payments, the undertaking company is required to store the Traffic Data until the expiration of the period during which the invoice may be legally challenged or the claim for the payment may be asserted. The undertaking company is required to provide the Traffic Data to the Office of Electronic Communication and Postal Services or the court in the case of a dispute between undertaking companies or between an undertaking company and a subscriber. The scope of the stored Traffic Data must be limited to the minimum necessary.

 

Location Data

The undertaking company may process the Location Data other than the Traffic Data which relates to the subscriber or the user of a public network or public service only if the data are made anonymous or the processing is done with user consent, and in the scope and time necessary for the provision of the value added service. The undertaking company must, prior to obtaining consent, inform the subscriber or user of the Location Data other than Traffic Data which will be processed, on the type of Location Data to be processed, on the purpose and duration of the processing, and whether the data will be provided to a third party for the purpose of the provision of the value added service. The subscriber or user may revoke its consent for the processing of location data at any time.

Following the Judgment of the Court of Justice of the European Union on 8 April 2014 in the joined cases of Digital Rights Ireland (C-293/12) and Kärtner Landesregierung (C-594/12) which cancelled so called "data retention" Directive 2006/24/EC, Constitutional Court of Slovak Republic on 29 April 2015 issued a Judgement (PL. ÚS 10/2014-78) ("Judgement") upon which the Constitutional Court proclaimed the certain provisions of the ECA to be non-compliant with the provisions of the Constitution of Slovak Republic, provisions of the Charter of Fundamental Rights and Freedoms and with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms. Upon the Judgment, the obligation of the telecommunications operators to retain the Traffic Data and Location Data about the electronic communication of all citizens for the prescribed period (6/12 months) was abolished and removed from ECA.

Last modified 14 Jan 2019
Contacts
JUDr. Dr. Michaela Stessl
JUDr. Dr. Michaela Stessl
Country Managing Partner
T +421 2 59202 122
Eva Skottke
Eva Skottke
Senior Associate
T +421 2 59202 111
Last modified 14 Jan 2019