Portugal: Data Protection Laws of the World Handbook: Second Edition - Portugal

E-Commerce And Privacy Alert

LAW

Portuguese Data Protection Law - Law No. 67/98, of October 26th - was enacted pursuant to Directive 95/46/EC.

DEFINITION OF PERSONAL DATA

The Portuguese 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 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.

DEFINITION OF SENSITIVE PERSONAL DATA

Article 7 of the Data Protection Law defines "sensitive personal data" 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 also data concerning health or sex life, including genetic data.

NATIONAL DATA PROTECTION AUTHORITY

Comissгo Nacional de Protecзгo de Dados ("National Commission for the Protection of Data" also known as "CNPD").

REGISTRATION

Data controllers who process personal data shall notify the Data Protection Authority (CNPD), unless an exemption applies. For certain categories of data (sensitive data when permitted, data regarding illicit activities or criminal and administrative offenses or credit and solvability data) and certain specific processing, prior authorization from CNPD is required. Any variations or changes to the processing of personal data will determine the amendment of the registration.

As for the filing requirements, CNPD has an official form that must be submitted in Portuguese with the following information:

  • Identity of the controller and its representative;
  • Main software features;
  • The purposes of the processing;
  • Third party entity responsible for the processing (if applicable);
  • All the personal data that will be collected in each register; it is also necessary to indicate if sensitive data is to be collected as well as data concerning the suspicion of illegal activities, criminal and/or administrative offences, as well as data regarding credit and solvability.
  • Grounds of legitimacy of the collection and a brief description of the data collection method used;
  • Means and methods available for updating the data;
  • Means of communication of data to other entities and their identification (if applicable); and
  • Any transfers of data to third countries, listing the reasons, grounds and the measures adopted in each transfer.

DATA PROTECTION OFFICERS

There is no legal requirement in Portugal for organisations to appoint a data protection officer.

COLLECTION AND PROCESSING

Personal data may only be processed if the data subject has given his/her unambiguous consent or if processing is deemed necessary:

  • for the 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;
  • for the compliance with a legal obligation to which the controller is subject;
  • to protect the vital interests of the data subject if the latter is physically or legally unable of giving his/her consent;
  • for the 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;
  • for pursuing the legitimate interests of the controller or the third party to whom the data are disclosed, except where such interests should be overridden by the interests for 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 and the means made available to the data subject to access, amend and delete its data.

TRANSFER

For the data transfers performed within the EU/EEA countries, it is only required to notify the CNPD and data processing may commence immediately thereafter.

Transfers to non EU/EEA countries can only take place if the recipient country ensures an adequate level of protection. In any case it is mandatory to start an authorization procedure with the CNPD and data processing can only commence upon the authorisation issuance.

Exceptionally, transfers performed according to the standard Model Clauses or to Safe Harbor Certificate holders are possible. In such cases, data processing can be done immediately after filling with CNPD.

SECURITY

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 where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

The adequacy of such measures is assessed considering the state of the art, costs of its implementation, nature of the data and the purpose of processing.

BREACH NOTIFICATION

Law 41/2004, of 18 of August on the protection and processing of personal data in e-communications was recently amended by Law No. 46/2012, of 29 August, which transposed Directive 2009/136/EC.

Now, companies that offer electronic communications services accessible to the public shall, without undue delay, notify the CNPD of a personal data breach. When the personal data breach may affect negatively the subscriberТs or userТs personal data, companies providing electronic communications services accessible 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 to the personal data of privacy exists when the breach may result namely in theft or identity fraud, physical harm, significant humiliation or damage to reputation.

Regardless, if a person/entity is effected by the breach of the 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.

ENFORCEMENT

In Portugal, CNPD is responsible for the enforcement of the Data Protection Law.

The failure to comply with the obligations set forth in the Data Protection Law may be deemed as an administrative and/or criminal offence.

Article 43 determines that any person who intentionally:

  • fails to notify or seek CNPDТs authorization for data processing;
  • provides false information in the notification or in the applications for authorization for the processing of personal data;
  • misappropriates or uses personal data in a incompatible manner with the purpose of the collection or with the legalisation instrument;
  • promotes or carries out an illegal combination of personal data;
  • fails to comply with the obligations provided for in the Data Protection Law or in other data protection legislation when the time limit fixed by the CNPD for complying with them has expired; and
  • 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 equivalent to 120 days.

The failure to comply with any of the provisions regarding the conditions and safety of data processing and the observance of the data subjects of information and opposition rights and permanent access to the data shall be deemed as an administrative offence punishable with a fine ranging from EUR 500 and EUR 5,000.

The negligent or inadequate compliance with the obligations referred to above is also punishable by a fine which varies according to the legal nature of the infringer - individuals may be punished with a fine ranging from EUR 250 to EUR 2,500 and corporate entities may be punished with a fine ranging from EUR 1,500 to EUR 15,000.

ELECTRONIC MARKETING

The Law No. 41/2004, of 18 of August on the protection and processing of personal data in e communications was recently amended by Law no. 46/2012, of 29 August, which transposed the 2009/136/EC Directive.

In relation to individuals, the sending of unrequested communications for direct marketing purposes is subject to express prior consent of the subscriber or user (that is, the "opt in" rule applies). This includes the use of automated calling and communication that do not rely on human intervention (automatic call devices), facsimile or electronic mail, including SMS, EMS, MMS and other similar applications.

This does not apply to legal entities and accordingly unrequested direct marketing communications are allowed. Nevertheless, the "opt out" rule applies and legal entities may refuse future communications and enroll in the non-subscribers list.

This does not prevent the supplier of a product or service that has obtained its customers' data and contacts, under the lawful terms of the Data Protection Law and in connection with the sale of a product or service, to use such data for direct marketing of its own products or services similar to those transacted, provided it ensures the customers concerned, clearly and explicitly, with the opportunity to object to the use of such data, free of charge and in an easy manner (i) at the time of the respective collection, and (ii) on the occasion of each message in case the customer has not initially refused such use.

The sending of electronic mail for purposes of direct marketing disguising or concealing the identity of the entity on whose behalf such communication is made, as well as the nonindication of valid means of contact to which the recipient may send a request to stop these communications or the encouragement of recipients to visit websites that violate these provisions, is strictly forbidden. The violation of these rules consists on an administrative offense, punishable with fines ranging from Eur 5,000 to Eur 5,000,000, to legal entities:

ONLINE PRIVACY (INCLUDING COOKIES AND LOCATION DATA)

Cookie compliance - The amended Law No. 41/2004, of 18 of August now determines that the storing of information and the possibility to access information stored in a subscriber/ user's terminal is only allowed; (i) on the condition the subscriber/user has provided his or her previous consent; (ii) which must be based on clear and comprehensive information, namely about the purposes of the processing.

This does not prevent technical storage or access; (i) for the sole purpose of carrying out the transmission of a communication over an e-communication network; or (ii) if strictly necessary in order for the provider of an information society service to provide a service expressly requested by the subscriber/user.

At this point, the local regulatory Authority (CNPD) has not yet issued any guidelines regarding the definition of "consent", namely if implied consent suffices and if the continuous use of website consists consent. In view of Portuguese practice and restrictive approach taken by the DPA, we are of the opinion that implied consent shall not be enough and continuous use of a website shall only be regarded as consent provided clear and evident information is given. The use of a confirmation procedure is advisable.

Traffic Data - Traffic data must be eliminated or made anonymous when no longer needed for the transmission of the communication. Prior express consent is required and may be removed at any time, and only to the extent required and the time necessary to marketing electronic communications services or the provision of value added services.

Processing of traffic data is admissible when required for billing and payment of interconnections 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 purposes and duration of the processing and the possibility to disclosure to third parties for the provision of value added services. Processing should be limited to workers and employees in charge of billing or traffic management, customer inquiries, fraud detection, marketing of electronic communications services accessible to the public, or the provision of value added services, restricting necessary for the purposes of such activities.

Location Data - Processing of these data is allowed only if they are made anonymous or to the extent and for the duration necessary for the provision of value added services, provided it is obtained prior express consent. Prior information must also be provided.

Companies must ensure the possibility, using simple means and free of charge: (i) to withdraw consent at any time; or (ii) temporarily refuse the processing of such data for each connection to the network or for each transmission of a communication.

Non-compliance with "Opt in" rule consists of an administrative offense, punishable with fines ranging from EUR 5,000 to 5,000,000.

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.


DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to www.dlapiper.com

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