Ketler & Partners, member of Karanovic
What law(s) specifically govern personal data / information?
Personal data protection is regulated in Slovenia with the Personal Data Protection Act, which was adopted in 2004 and is not (yet) entirely in line with General Data Protection Regulation (GDPR), which is directly applicable in all EU member states, including Slovenia. Please note that the relevant implementational measures in relation to the GDPR (e.g. fines) have not yet been implemented in the Personal Data Protection Act. A new GDPR-compliant Personal Data Protection Act is currently in the legislative process.
What are the key data protection principles in this jurisdiction?:
- Lawful basis for processing
The GDPR provides an exhaustive list of legal bases on which personal data may be processed:
- consent of the data subject for one or more specific purposes;
- contractual necessity;
- compliance with a legal obligation of the controller to perform the relevant processing;
- protection of the vital interests of the data subject or of another natural person;
- performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; or
- legitimate interests (i.e. the processing is necessary for the purposes of legitimate interests pursued by the controller, except where the controller’s interests are overridden by the interests, fundamental rights or freedoms of the affected data subjects).
The processing of sensitive personal data requires stronger grounds and is only permitted under certain conditions, of which the most relevant are:
- explicit consent of the affected data subject;
- the processing is necessary in the context of employment or social security law; or
- the processing is necessary for the establishment, exercise or defence of legal claims.
- Transparency
Personal data must be processed lawfully, fairly and in a transparent manner. Regarding the processing of personal data, controllers are obliged to provide certain information to data subjects. Such information must be provided in a concise, transparent, intelligible and easily accessible form, using clear and plain language.
- Purpose limitation
Personal data may only be collected for specified, explicit and legitimate purposes and must not be further processed in a manner that is incompatible with those purposes.
- Data minimisation
The processing of personal data must be adequate, relevant and limited to what is necessary in relation to the purposes for which those data are processed.
- Accuracy
Personal data must be accurate and, where necessary, kept up to date.
- Storage limitation
Personal data must be stored in a form that permits identification of data subjects for no longer than it is necessary for the purposes for which the personal data was initially collected.
- Integrity and confidentiality
Personal data must be processed in a manner that ensures appropriate security of those data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.
- Accountability
The controller is responsible for processing of data in accordance with the GDPR. In particular, the controller is obliged to implement appropriate technical and organisational measures to ensure and to be able to demonstrate that processing is performed in compliance with the GDPR.
What is the supervisory authority / regulator in charge of data protection?
The Information Commissioner of the Republic of Slovenia (link to its official website: https://www.ip-rs.si/en
Is there a requirement to register with a supervisory authority / regulator?
No registration is required for the collection of personal data and personal data processing
Is there a requirement to notify the supervisory authority / regulator?
No notification in relation to the processing of personal data is required, however data protection officers (and their local liaisons) need to be notified to the Information Commissioner.
Is it possible to register with / notify the supervisory authority / regulator online?
Notification of the data protection officer (local liaison) may be conducted in writing or by using an online form (link: https://www.ip-rs.si/pooblascene-osebe )
What are the key data subject rights under the data protection laws of this jurisdiction?
Right to information
Pursuant to Articles 13 and 14 GDPR, data subjects have the right to be provided with information on the identity of the controller, the reasons for processing their personal data and other relevant information necessary to ensure the fair and transparent processing of personal data.
Right of access
A data subject has the right to obtain from a controller certain information in respect of the data subject’s personal data as listed in Article 15 GDPR.
Additionally, the data subject may request a copy of the personal data being processed.
Right to rectification of errors
Pursuant to Article 16 GDPR, data subjects have the right to rectification of inaccurate personal data.
Right to deletion/right to be forgotten
Data subjects have the right to erasure of their personal data (the “right to be forgotten”) if one of the reasons as listed in Article 17 GDPR apply.
Right to restriction of processing
Data subjects have the right to request restriction of the processing of personal data, which means that the data may only be processed for limited purposes as defined in Article 18 GDPR.
Right to data portability
Data subjects have a right to receive a copy of their personal data in a commonly used machine-readable format and transfer their personal data from one controller to another or have the data transmitted directly between controllers (Article 20 GDPR).
Right to object to processing
Data subjects have the right to object, on grounds relating to their particular situation, to the processing of personal data where the basis for that processing is either public interest (Article 6 para 1(e) GDPR) or legitimate interest of the controller (Article 6 para 1(f) GDPR). The controller must cease such processing unless it demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the relevant data subject or requires the data in order to establish, exercise or defend legal rights.
Data subjects have the right to object to the processing of personal data for marketing purposes, including profiling.
Right to withdraw consent
A data subject has the right to withdraw their consent at any time (Article 7 para 3 GDPR). The withdrawal of consent does not affect the lawfulness of processing based on consent before the withdrawal.
Right to complain to the relevant data protection authority(ies)
Data subjects have the right to lodge complaints concerning the processing of their personal data with the competent data protection authority.
Right not to be subject to automated individual decision-making
Under certain circumstances, data subjects have the right not to be subject to a decision based solely on automated processing of data (including profiling), which produces legal effects or similarly significant effects for the data subject (Article 22 GDPR).
This is a summary only and there are some qualifications and limitations to these rights which may be relevant.
Is there a requirement to appoint a data protection officer (or equivalent)?
Under the GDPR (articles 37 to 39), a Data Protection Officer (DPO) must be appointed by organisations that:
- are a public authority or body (except for courts acting in their judicial capacity);
- whose core activities require large scale, regular and systematic monitoring of individuals (for example, online behaviour tracking); or
- whose core activities consist of large scale processing of special categories of data or data relating to criminal convictions and offences.
This applies to both controllers and processors. Organisations that are not required to appoint a DPO may do so voluntarily. In making a voluntary appointment, organisations should be aware that the same requirements of the position and tasks apply as if the appointment had been mandatory.
The DPO must have expert knowledge of data protection law and practices, be independent and report to the highest management level.
Do data protection/ privacy impact assessments need to be carried out in certain circumstances?
Yes, a data protection impact assessment is required where a type of processing, in particular using new technologies, is likely to result in a high risk to the rights and freedoms of natural persons, taking into account the nature, scope, context and purposes of the processing.
A data protection impact assessment is required in particular in the case of:
- a systematic and extensive evaluation of personal aspects relating to natural persons which is based on automated processing, including profiling, and on which decisions are based that produce legal effects concerning the natural person or similarly significantly affect the natural person;
- processing on a large scale of special categories of data or of personal data relating to criminal convictions and offences; or
- a systematic monitoring of a publicly accessible area on a large scale.
Does this jurisdiction have any specific data breach notification requirements?
In the case of a personal data breach, the controller must without undue delay and, where feasible, not later than 72 hours after having become aware of it, notify the personal data breach to the Information Commissioner, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons. Where the notification to the supervisory authority is not made within 72 hours, it shall be accompanied by reasons for the delay. The notification must at least:
- describe the nature of the personal data breach including, where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned
- communicate the name and contact details of the data protection officer or other contact point where more information can be obtained;
- describe the likely consequences of the personal data breach; and
- describe the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.
When the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons, the controller must also communicate the personal data breach to the data subject without undue delay. The communication to the data subject shall describe in clear and plain language the nature of the personal data breach and contain at least the same information as provided in the notification to the supervisory authority (described in the indents above).
The EDPB (European Data Protection Board) has issued guidelines on the data breach notification, detailing requirements for data breach notifications ( Guidelines 9/2022 on personal data breach notification under GDPR and Guidelines 01/2021 on Examples regarding Data Breach Notification ).
What restrictions apply to the international transfer of personal data / information?
Transfer of personal data outside the EU/EEA is possible, under certain conditions in accordance with the GDPR.
The EU Commission has issued decisions concerning an adequate level of protection on the basis of Article 45 para 3 GDPR for the following countries: Andorra; Argentina; Canada; Faroe Islands; Guernsey; Isle of Man; Israel; Japan; Jersey; New Zealand; Republic of Korea, Switzerland; and Uruguay. The United Kingdom has been recognised by EU Commission as providing adequate protection under the GDPR and the Law Enforcement Directive.
For transfers to a country that is not subject to an adequacy decision, the best approach is often to rely on Standard Contractual Clauses (SCCs) adopted by the European Commission. The SCCs, which took effect from 27 July 2021, are available for the following transfers:
- Module 1: controller to controller
- Module 2: controller to processor
- Module 3: processor to processor
- Module 4: processor to controller
Other transfer safeguards can also be relied upon, such as the approved binding corporate rules, codes of conduct and certification mechanisms, and in certain specific situations further alternatives can be considered (such as data subject’s explicit consent, necessity for the establishment, exercise or defence of legal claims, or even the organisation’s compelling legitimate interests).
The transfer is covered by one of the permitted derogations set out in article 49 (in the absence of an adequacy regulation or appropriate safeguard), such as the explicit consent of the data subject, the transfer is necessary for the performance of a contract between the data subject and data controller at the data subject's request or in the interest of the data subject, or the transfer is necessary for the establishment, exercise or defence of legal claims.
Do the data protection laws in this jurisdiction have “extra-territorial effect” (i.e. do they apply to organisations outside this jurisdiction)?
Yes, the GDPR applies to the processing of personal data of data subjects in the EU by a controller or processor not established in the EU, if the processing activities are related to offering of goods and services (irrespective of whether a payment by the data subject is required) or monitoring the data subject's behaviour as far as their behaviour takes place within EU.
What rules specifically deal with marketing?
No, general rules regarding data protection apply, save in cases of direct marketing via electronic means where separate legislation is applicable (see below). Personal data may be used for marketing purposes only if the data subject has consented to the use of personal data for such purpose.
Do different rules apply to business-to-business and business-to-consumer marketing?
No, relevant provisions are neutral in terms of the nature of relationship, e.g. if personal data is used in corporate emails.
The rules do not apply to emails sent for marketing purposes to generic email addresses (e.g. if a recipient is [email protected]).
What rules specially deal with electronic marketing (for example, by email, text message, WhatsApp message, online ads etc)?
Yes, electronic marketing is governed by the Electronic Communications Act. Consent is generally required for conduct of such activities, except if there was a previous relationship with the customer.
What rules specifically deal with cookies?
Yes, cookies are governed by the Electronic Communications Act. The storage of data or access to data stored in the terminal equipment of the subscriber or user is allowed only on condition that the subscriber or user has consented to this after being clearly and comprehensively informed of the controller and the purposes of processing this data in accordance with the law governing the protection of personal data. The user may express their consent referred to by using the appropriate settings in a browser or other applications.
What are the consequences of non compliance with data protections laws (including marketing laws)?
Slovenia has not yet adopted appropriate implementational measures in relation to the GDPR and therefore it is not yet possible for the Slovenian Information Commissioner to issue fines as prescribed under the GDPR. For that reason only much lower fines may be imposed (for the time being). Depending on the type of non-compliance, the fines for legal persons range from EUR 2,080 to EUR 12,510.
The draft of the new Personal Data Protection Act sets fines that range from EUR 1,000 to EUR 36,000.
In broad terms, multinational organisations should be aware of what key factors if they process personal data / information from individuals within this jurisdiction, without being located there?
Generally multinational companies should be aware that the Information Commissioner is strict in terms of notifications concerning processing of personal data and related notifications to data processors. If a multinational conducts business in Slovenia such notices should generally be in Slovene language.
Controllers and processors who are not established in the EEA are generally required under article 27 of the GDPR to designate a representative in the EEA where their activities fall within the territorial scope of the EEA data protection regime under article 3, specifically if they involve processing personal data of data subjects within the EEA in connection with the provision of goods or services, or the monitoring of the behaviour of data subjects located in the EEA
What upcoming data protection developments should multinational organisations be aware of?
Adoption of implementational measures pursuant to the GDPR (by means of adopting the new Personal Data Protection Act) is in progress.