Ventura Garcés

 

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

The Organic Law 3/2018 of 5 December on the Protection of Personal Data and the Guarantee of Digital Rights (hereinafter, “Spanish Data Protection Act”) adapts the Spanish legal order to 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 (hereinafter, “GDPR”), which is directly applicable in Spain.

 

The key data protection principles in this jurisdiction are:

The key principles that apply to data protection in our jurisdiction involve consideration of the existence of both rights and duties to ensure that the use made of an individual's personal data is consistent with the protection of a fundamental right.

  • 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:

Spanish Data Protection Agency. In Spain, there are also autonomous data protection authorities.

 

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

In the Spanish jurisdiction, registration with a supervisory authority is not required.

The obligation to registration/notify files in Spain is replaced on May 25th April-2018 by preparing a record of processing activities for each Controller, that must contain the information indicated in article 30 GDPR.

 

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

No, except in international data transfers if the recipients of the data are not located in a country declared as having an adequate level of protection by the European Commission. In the absence of a decision on such adequacy, a specific authorisation from the Spanish Data Protection Agency will be required, providing a series of guarantees.

 

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

It is possible to submit the request in writing through the Spanish Data Protection Agency Electronic Headquarters. [Electronic Headquarters - Spanish Data Protection Agency (sedeagpd.gob.es)].

 

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

  • 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).

 

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

According to the GDPR, appointing a data protection officer is mandatory when:

  1. the processing is carried out by a public authority or body, except for courts acting in their judicial capacity;
  2. the core activities of the controller or the processor consist of processing operations which, by virtue of their nature, their scope and/or their purposes, require regular and systematic monitoring of data subjects on a large scale; or
  3. the core activities of the controller or the processor consist of processing on a large scale of special categories of data and personal data relating to criminal convictions and offences.

Specifically, Spanish Data Protection Act 3/2018 specifies the entities and bodies that are required to make this designation on a mandatory basis:

  1. Professional associations and their general councils.
  2. Educational centres offering education at any of the levels established in the legislation regulating the right to education, as well as public and private universities.
  3. Entities operating electronic communications networks and providing electronic communications services in accordance with the provisions of their specific legislation, when they routinely and systematically process personal data on a large scale.
  4. Information society service providers when they carry out large-scale profiling of service users.
  5. Institutions included in Article 1 of Act 10/2014 of 26 June 2014 on the regulation, supervision and solvency of credit institutions.
  6. Financial credit institutions.
  7. Insurance and reinsurance institutions.
  8. Investment services companies regulated by Securities Market legislation.
  9. Distributors and marketers of electrical energy and distributors and marketers of natural gas.
  10. Entities responsible for common files for the evaluation of solvency and creditworthiness or common files for the management and prevention of fraud, including those responsible for files regulated by legislation on the prevention of money laundering and the financing of terrorism.
  11. Entities that carry out advertising and commercial prospecting activities, including commercial and market research activities, when they carry out processing based on the preferences of data subjects or carry out activities that involve profiling them.
  12. Health centres that are legally obliged to keep patients' clinical records. Health professionals who, although legally obliged to keep patients' medical records, carry out their activity on an individual basis are exempted.
  13. Entities which have as one of their objects the issuing of commercial reports that may refer to natural persons.
  14. Operators who carry out their gambling activity through electronic, computerised, telematic and interactive channels, in accordance with the regulations governing gambling.
  15. Private security companies.
  16. Sports federations when they process data on minors.

In addition, data controllers or data processors not included in the above list may voluntarily appoint a data protection officer.

 

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

An impact assessment is required where a type of processing, in particular where it uses new technologies, is likely, by its nature, scope, context or purposes, to result in a high risk to the rights and freedoms of natural persons. The impact assessment shall be carried out prior to the processing.

A data protection impact assessment shall in particular be required in the case of:

  1. 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;
  2. processing on a large scale of special categories of data, or of personal data relating to criminal convictions and offences; or
  3. 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, controllers are obliged to notify the Spanish Data Protection Agency. The notification must be made without undue delay and, if possible, no later than 72 hours after the controller has become aware of it, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons. If the notification to the Spanish Data Protection Agency does not take place within 72 hours, it shall be accompanied by an indication of the reasons for the delay.

 

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

Firstly, international data transfers may take place if they are based on an adequacy decision approved by the Commission. That is, where the Commission has decided that the third country, a territory or one or more specific sectors within that third country, or the international organisation concerned ensures an adequate level of protection. Such a transfer shall not require any specific authorisation.

Secondly, in the absence of a specific decision, a controller or processor may transfer personal data to a third country or an international organisation only if it has provided appropriate safeguards, and on condition that the data subjects have enforceable rights and effective legal remedies. The appropriate safeguards may be provided for, without requiring any specific authorisation from the supervisory authority, by:

  1. A legally binding and enforceable instrument between public authorities or public bodies;
  2. Binding corporate rules;
  3. Standard data protection clauses adopted by the Commission or by the Spanish Data Protection Agency;
  4. Codes of conduct or certification mechanisms, together with binding and enforceable commitments of the controller or processor in the third country to apply the appropriate safeguards, including those relating to the rights of data subjects.

Thirdly, international data transfers that do not have an adequacy decision approved by the Commission or that are not covered by any of the aforementioned guarantees will require prior authorisation from the Spanish Data Protection Agency or, where appropriate, from the autonomous data protection authorities, in which case the appropriate guarantees may also be provided by means of:

  1. Contractual clauses between the controller or processor and the controller, processor or the recipient of the personal data in the third country or international organisation; or
  2. Provisions to be inserted into administrative arrangements between public authorities or bodies which include enforceable and effective data subject rights.

Fourthly, as derogations for specific situations, in the absence of an adequacy decision or appropriate safeguards, including binding corporate rules, a transfer or a set of transfers of personal data to a third country or an international organisation shall only take place if one of the following conditions is met:

  1. The data subject has explicitly consented to the proposed transfer, after having been informed of the possible risks of such transfers due to the absence of an adequacy decision and appropriate safeguards;
  2. The transfer is necessary for the performance of a contract between the data subject and the controller or the implementation of pre-contractual measures taken at the data subject's request;
  3. The transfer is necessary for the conclusion or performance of a contract concluded in the interest 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 or of other persons, where the data subject is physically or legally incapable of giving consent; or
  7. The transfer is made from a register which according to Union or Member State law is intended to provide information to the public and which is open to consultation either by the public in general or by any person who can demonstrate a legitimate interest, but only to the extent that the conditions laid down by Union or Member State law for consultation are fulfilled in the particular case.

Finally, where a transfer could not be based on an adequacy decision approved by the Commission or on any of the abovementioned appropriate safeguards, including the provisions on binding corporate rules, and none of the derogations for specific situations is applicable, it may only be carried out if it is not repetitive, concerns only a limited number of data subjects, is necessary for the purposes of the compelling legitimate interests pursued by the controller which are not overridden by the interests or rights and freedoms of the data subject, and the controller has assessed all the circumstances surrounding the data transfer and has on the basis of that assessment provided suitable safeguards with regard to the protection of personal data. In this case, the controller shall inform the Spanish Data Protection Agency or, where applicable, the autonomous data protection authorities. Likewise, the data controller shall inform the data subject of the transfer and on the compelling legitimate interests pursued. This information must be provided prior to the transfer.


 

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 has “extra-territorial” effect. The GDPR applies to the processing of personal data:

  • in the context of activities of an establishment of a controller or a processor in the EU, regardless of whether the processing itself takes place in the EU.
  • of data subjects who are in the EU by a controller or processor who is not established in the EU, where the processing activities are related to (i) the offering of goods or services to such data subjects in the EU, irrespective of whether a payment of the data subject is required; or (ii) the monitoring of their behaviour as far as their behaviour takes place within the EU.

 

The following rules specifically deal with marketing:

In Spain, commercial communications and promotional offers are governed by Act 34/2002 of 11 July 2002 on information society services and electronic commerce. In addition, other rules, such as General Advertising Act, would also apply.

 

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

Act 34/2002 of 11 July 2002 on information society services and electronic commerce, Spanish Data Protection Act and GDPR are applicable.

For consumers, the following laws must be taken into account:

  • Royal Legislative Decree 1/2007, of 16 November, approving the revised text of the General Law for the Defence of Consumers and Users and other complementary laws.
  • Royal Decree-Law 1/2021 of 19 January on the protection of consumers and users in situations of social and economic vulnerability.

 

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

The aforementioned Act 34/2002 of 11 July 2002 on information society services and electronic commerce.

 

The following rules specifically deal with cookies:

Article 22.2 of Act 34/2002 of 11 July 2002 on information society services and electronic commerce establishes a set of obligations to comply with cookies, in relation to the Spanish Data Protection Act and the GDPR. In addition, in July 2020, the Spanish Data Protection Agency updated the Guidance on the use of cookies to adapt it to the Guidelines 05/2020 on consent adopted by the European Data Protection Board (https://www.aepd.es/es/prensa-y-comunicacion/notas-de-prensa/aepd-actualiza-guia-cookies).

Stringent requirements are established: the need to obtain the user's consent prior to the installation of cookies and the obligation of transparency in information, meaning that users must be provided with clear and complete information on the use of data storage and retrieval devices, and in particular on the purposes of the data processing.

The information to be provided to the user includes the following: definition and generic function of cookies; information on the type of cookies used and their purpose; identification of who uses cookies; information on how to accept, refuse or revoke consent to the use of cookies, etc.

 

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

According to data protection legislation, administrative fines may be imposed, which, depending on the type of infringement, may be up to:

  • EUR 10 000 000 maximum, or in the case of an undertaking, up to 2 % of the total worldwide annual turnover of the preceding financial year, whichever is higher.
  • EUR 20 000 000 maximum, or in the case of an undertaking, up to 4 % of the total worldwide annual turnover of the preceding financial year, whichever is higher.

For the application of sanctions, certain graduation criteria will be taken into account, such as:

  1. the nature, gravity and duration of the infringement taking into account the nature scope or purpose of the processing concerned as well as the number of data subjects affected and the level of damage suffered by them;
  2. the intentional or negligent character of the infringement;
  3. any action taken by the controller or processor to mitigate the damage suffered by data subjects;
  4. the degree of responsibility of the controller or processor, taking into account the technical or organisational measures that they have implemented;
  5. any previous infringement committed by the controller or processor;
  6. the extent of cooperation with the supervisory authority for the purpose of remedying the breach and mitigating the possible adverse effects of the breach;
  7. the categories of personal data concerned by the breach;
  8. the manner in which the supervisory authority became aware of the breach, in particular whether and, if so, to what extent the controller or processor notified the breach;
  9. where the measures referred to in Article 58(2) GDPR have previously been ordered against the controller or processor concerned in relation to the same matter, compliance with those measures;
  10. adherence to codes of conduct or to certification schemes; and
  11. any other aggravating or mitigating factors applicable to the circumstances of the case, such as financial gain or loss avoided, directly or indirectly, through the infringement.

According to Act 34/2002 of 11 July 2002 on information society services and electronic commerce:

  • For the commission of very serious infringements, a fine of EUR 150,001 to EUR 600,000.
  • The repetition, within a period of three years, of two or more very serious infringements, firmly sanctioned, may give rise, depending on the circumstances, to the sanction of prohibition to act in Spain, for a maximum period of two years.
  • For the commission of serious infringements, a fine of EUR 30,001 to EUR 150,000.
  • For minor infringements, a fine of up to EUR 30,000.

 

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:

No, there are not.

 

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

No, there are not.

 

 

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Contact a member firm:
Andrea Garcés
Ventura Garcés
Spain


Cristina García
Ventura Garcés
Spain