Abreu Advogados

 

The following law(s) specifically govern personal data / information:

  • The General Data Protection Regulation (Regulation (EU) 2016/679) (GDPR);
  • The Law no. 58/2019, of 8 August (data protection law);
  • Law no. 59/2019, of 8 August, which enshrines the regime for processing personal data within the scope of criminal offences or the execution of criminal sanctions;
  • Law no. 12/2005, of 26 January, on personal genetic information and health information;
  • Law no. 41/2004, of 18 August, on the processing of personal data and the protection of privacy in the electronic communications sector; and
  • Law No. 21/2014, of 16 April, on clinical research and Decree-Law No. 131/2014, of 29 August, on Personal Genetic Information.

 

The key data protection principles in this jurisdiction are:

The principles that apply in our jurisdiction are those laid down in Article 5 of the GDPR, which are:

  • Lawful basis for processing
  • The GDPR provides an exhaustive list of legal bases on which personal data may be processed:

    1. consent of the data subject for one or more specific purposes;
    2. contractual necessity;
    3. compliance with a legal obligation of the controller to perform the relevant processing;
    4. protection of the vital interests of the data subject or of another natural person;
    5. performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; or
    6. 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:

    1. explicit consent of the affected data subject;
    2. the processing is necessary in the context of employment or social security law; or
    3. 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.

 

The supervisory authority / regulator in charge of data protection is:

CNPD - National Commission for Data Protection, available in: https://www.cnpd.pt/

 

Is there a requirement to register with a supervisory authority / regulator?

No.

 

Is there a requirement to notify the supervisory authority / regulator?

Yes, in cases where video-surveillance is allowed, sound recording is forbidden, except during the period in which the premises under surveillance are closed or with prior authorization from the CNPD.

 

Is it possible to register with / notify the supervisory authority / regulator online?

N/A

 

The key data subject rights under the data protection laws of this jurisdiction are:

The main rights conferred to the data subject are those provided for in the GDPR, namely:

  • 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 reason 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 significantly effects for the data subject (Article 22 GDPR).

    Additionally, the Portuguese data protection law (Law 58/2019), provides a particular regime with regard to the protection of personal data of deceased persons when they are included in the special categories of personal data referred to in paragraph 1 of Article 9 of the GDPR, or when they relate to privacy, image or communications data, except in the cases provided for in paragraph 2 of the same article. These rights are exercised by whoever the deceased person has designated for this purpose or, in their absence, by their heirs. Data subjects may also, under the applicable legal terms, make it impossible to exercise the rights referred to in the previous paragraph after their death.


 

Is there a requirement to appoint a data protection officer (or equivalent)?

Yes, Portuguese law transposes the cases set out in Article 37(1) of the GDPR, stating in particular that it is mandatory to designate a data protection officer for public entities, as well as for private companies where the private activity primarily carried out involves:

  1. Processing operations which, by virtue of their nature, scope and/or purpose, require regular and systematic monitoring of the data subjects on a large scale;
  2. Large-scale processing operations of special categories of data provided for in Article 9 of the GDPR, or of personal data relating to criminal convictions and misdemeanours.

Furthermore, Portuguese law clarifies which entities are considered to be public entities for the purposes of applying the legal requirement of a DPO. Accordingly, the following are public entities for these purposes: the State, autonomous regions, local authorities and supranational entities provided for by law, independent administrative bodies and the Bank of Portugal, public institutes, public higher education institutions, regardless of their nature, companies in the business sector of the State and regional and local business sectors, and public associations;

In these cases, regardless of who is responsible for the processing, there is at least one data protection officer:

  1. For each ministry or governmental area, in the case of the State, being designated by the respective minister, with the power of delegation to any secretary of State who assists him/her;
  2. For each regional secretariat, in the case of the autonomous regions, designated by the respective regional secretary, who may delegate to a senior manager of 1st level;
  3. For each municipality, designated by the municipal council, with the power to delegate to the president and sub-delegate to any councillor;
  4. In the parishes in which this is justified, namely those with more than 750 inhabitants, designated by the parish council, with the power to delegate to the president;
  5. For each entity, in the case of the other entities referred to in the previous number, designated by the respective executive, administrative or management body, with the power to delegate to the respective President.

 

Do data protection/ privacy impact assessments need to be carried out in certain circumstances?

Yes. In order to comply with the provisions of paragraph 4 of Article 35 of the GDPR, the CNDP has provided in its Regulation 1/2018, the situations in which it will be mandatory to conduct an impact assessment. These are:

  1. Processing of information derived from the use of electronic devices that transmit, over communication networks, personal data concerning health;
  2. Interconnection of personal data or processing that links personal data provided for in Article 9(1) or 10 of the GDPR or data of a highly personal nature;
  3. Processing of personal data as provided for in Article 9(1) or Article 10 of the GDPR or data of a highly personal nature of the GDPR or data of a highly personal nature on the basis of an indirect collection where it is not possible or practicable to ensure the right of information right of information under Article 14(5)(b) of the GDPR;
  4. Processing of personal data which implies or consists of profiling on a large scale;
  5. Processing of personal data which makes it possible to trace the location or behaviour of the data subjects (e.g. employees, customers or just passers-by)), which has the effect of evaluating or classifying them, except when the processing is indispensable for the provision of services specifically requested by them;
  6. Processing of data provided for in Article 9(1) or Article 10 of the GDPR or data of a highly personal nature for the purpose of archiving in the public of public interest, scientific and historical research or statistical purposes, with the statistical purposes, with the exception of processing foreseen and regulated by law which provides adequate guarantees for the rights of the data subjects;
  7. Processing of biometric data for the unequivocal identification of the holders when the latter are vulnerable persons, with the exception of processing foreseen and regulated by a law that has been preceded by a data protection data protection impact assessment;
  8. Processing of genetic data of vulnerable people, with the exception of processing foreseen and regulated by a law which has been preceded by a data protection impact assessment.
  9. Processing of personal data as provided for in Article 9(1) or 10 of the GDPR or data of a highly personal nature using new technologies or new use of existing technologies.

It is also mandatory to conduct an impact assessment within the scope of the legislative or regulatory procedure, which must be sent to the CNPD to accompany the request for an opinion on these provisions being prepared by the body with legislative or regulatory power (cf. article 18, no. 4 of Law 43/2004, as amended).


Does this jurisdiction have any specific data breach notification requirements?

No. The procedure and requirements to be applied when verifying a data breach, in Portugal, are the ones foreseen in the GDPR, in particular in Article 33.

Therefore, it is an obligation of the controller to notify the CNPD of a data breach, as required in Article 33(1) of the GDPR. Thus, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons, the notification must be made within 72 hours of becoming aware of it.

For this purpose, the CNPD provides a specific form, available at https://www.cnpd.pt:8086/databreach/?AspxAutoDetectCookieSupport=1.

Even if the controller considers that notification to the CNPD is not required, the controller is obliged to document any data breaches, pursuant to Article 33(5) of the GDPR.

 

The following restrictions apply to the international transfer of personal data / information:

No.

 

Do the data protection laws in this jurisdiction have “extra-territorial effect” (i.e. do they apply to organisations outside this jurisdiction)?

The Portuguese data protection law (Law no. 58/2019, of 8 August) applies to the processing of personal data carried out outside the national territory when:

  1. carried out within the scope of activity of an establishment situated on the national territory; or
  2. affecting data subjects who are on the national territory, where the processing activities are subject to the provisions of Article 3(2) of the GDPR; or
  3. affecting data that is registered at consular offices of which the data subjects are Portuguese citizens residing abroad.

Notwithstanding the aforementioned, we note that the CNPD deliberated (Deliberation No. 2019/294) not to apply the abovementioned provisions to any cases brought before it, as it considered them to be in violation of European Union Law (GDPR).

However, we emphasize that this does not mean that a court is bound by such deliberation and therefore the former may apply such sanctions on lawful grounds.

 

The following rules specifically deal with marketing:

These rules are set out in Law No. 41/2004 of 18 August (“Portuguese E-Privacy Law”), for marketing communications through automated means, and in Law No. 6/99 of 27 January, for communications via pre-recorded voice calls or via postal mail.

 

Do different rules apply to business-to-business and business-to-consumer marketing?

As regards to marketing communications through automated means, different rules apply between a business-to-business or a business-to-consumer communication.

For a more detailed information, please refer to the answer below.

 

The following rules specially deal with electronic marketing (for example, by email, text message, WhatsApp message, online ads etc):

In Portugal, the rules applicable to the processing of personal data for direct marketing purposes through automated means (sms, mms, ems, automated calls and fax) and electronic mail are the ones included in the Portuguese E-Privacy Law.

According to the abovementioned law, there are 3 different applicable situations:

  • Potential Customers:
  • In this case, the data subject should provide his/her express consent for the receipt of direct marketing communications, as the Portuguese E-Privacy Law determines that regarding potential customers, data subjects must provide their express consent (“opt-in” rule) for the receiving of direct marketing communications through automated means.


  • Legal entities:
  • Concerning legal entities, the Portuguese E-Privacy Law allows the sending of marketing communications without prior consent, provided that (i) the legal entity is not included in the official list of legal entities that oppose to the reception of those communications and (ii) the legal entity is given the possibility to object to the reception of those communications.


  • Existing customers:
  • With regard to existing customers, in accordance to the Portuguese E- Privacy law, the Controller that has already obtained the electronic contact details of the customer within the scope of the sale of a product or service, may send direct marketing communications aiming to promote its own or similar products, provided that the customer is given the possibility to oppose the reception of marketing communications (“opt-out” rule), at the time of the collection of the data and at each communication in case the customer has not initially refused the processing of data for direct marketing communications.

 

The following rules specifically deal with cookies:

There is no specific legislation in Portugal regarding cookies, however, in this matter Portuguese E-privacy Law has been applied, in particular, Article 5 concerning storage and access to information.

According to the aforementioned Article, the storage of information and the possibility of access to information stored in the terminal equipment of a subscriber or user is only allowed if the subscriber or user has given his or her prior consent based on clear and complete information in accordance with the Personal Data Protection Law (Law No. 58/2019), notably regarding the purposes of processing.

However, the rules in that Article shall not prevent technical storage or access:

  1. Which has as its sole purpose the transmission of a communication over an electronic communications network;
  2. Which is strictly necessary for the provider to provide an information society service explicitly requested by the subscriber or user.

 

The consequences of non compliance with data protections laws (including marketing laws) are:

According to Law No. 58/2019, non-compliance with data protection law will constitute:

Very serious administrative offenses, punishable:

  1. From 5000 (euro) to 20 000 000 (euro) or 4 /prct. of the annual worldwide turnover, whichever is higher, in the case of a large company;
  2. From 2000 (euro) to 2 000 000 (euro) or 4 /prct. of the annual world-wide turnover, whichever is higher, in the case of an SME;
  3. From 1000 (euro) to 500 000 (euro), in case of natural persons.

Serious administrative offenses, punishable:

  1. From 2500 (euro) to 10 000 000 (euro) or 2 /prct. of the annual worldwide turnover, whichever is higher, in the case of a large company;
  2. From 1000 (euro) to 1000 000 000 (euro) or 2 /prct. of the annual world-wide turnover, whichever is the higher, in the case of an SME;
  3. Between 500 (euro) and 250 000 (euro), in the case of natural persons.

The non-compliance with data protection rules may also constitute a crime. In this regard, Law No. 58/2019, typifies as crimes:

  • The use of data in a manner incompatible with the purpose of collection - punishable by a prison sentence of up to 1 year or a fine of up to 120 days. The penalty is doubled in its limits when personal data referred to in Articles 9 and 10 of the GDPR is involved;

  • Improper access - punishable by a prison sentence of up to 1 year or a fine of up to 120 days. The penalty is doubled in its limits when personal data referred to in Articles 9 and 10 of the GDPR is involved;

  • Data misappropriation - punishable by a prison sentence of up to 1 year or a fine of up to 120 days. The penalty is doubled in its limits when personal data referred to in Articles 9 and 10 of the GDPR is involved;

  • Vitiating or destroying data without proper authorization or justification - punishable by a prison sentence of up to 2 years or a fine of up to 240 days;

  • Entering false data - punishable by a prison sentence of up to 2 years or a fine of up to 240 days;

  • Breach of confidentiality - punishable by a prison sentence of up to 1 year or a fine of up to 120 days;

In case of disobedience, i.e. failure to comply with the obligations of the GDPR and the present law after the deadline for compliance has expired, is punishable by a prison sentence of up to 1 year or a fine of up to 120 days.

In turn, according to Law No. 41/2004 (for marketing communications through automated means), non compliance with marketing rules will constitute:

An administrative offense punishable by a minimum fine of (euro) 1500 to a maximum fine of (euro) 25,000 when committed by natural persons, and a minimum fine of (euro) 5000,000 to a maximum fine of (euro) 5.000,000 when committed by legal persons, to send communications for direct marketing purposes in violation of article 13-A (1) and (2).

As regards to Law No. 6/99 (for communications via pre-recorded voice calls or via postal mail), non-compliance with marketing rules will constitute:

An administrative offense, punishable by a fine from (euro) 997,60 to (euro) 2.494,00 or from (euro) 1.995, 19 to (euro) 29.927,91, depending on whether the individual is a natural person or a legal entity, respectively.

Notwithstanding the aforementioned, we note that the CNPD deliberated (Deliberation No. 2019/294) not to apply some of the above sanction rules of Law No. 58/2019 as it considered them to be in violation of European Union Law (GDPR). However, we emphasize that this does not mean that a court is bound by such deliberation and therefore the former may apply such sanctions on lawful grounds.

 

In broad terms, multinational organisations should be aware of the following key factors if they process personal data / information from individuals within this jurisdiction, without being located there:

Yes, for the processing of certain categories of personal data, among which we highlight health data, it is advisable to consult the applicable legislation (Article 29, 30 and 31 of Law No. 58/2019; Article 4 of Law No. 12/2005; Law No. 21/2014 and Decree-Law No. 131/2014).

 

Multinational organisations should be aware of the following upcoming data protection developments:

At the European Union level, attention should be paid to the E-Privacy Regulation that is expected to come into force soon.

 

 

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Ricardo Henriques
Abreu Advogados
Portugal