Data Protected - Latvia
Last updated March 2020
General | Data Protection Laws
National Supervisory Authority
Scope of Application
Sensitive Personal Data
Data Protection Officers
Accountability and Privacy Impact Assessments
Rights of Data Subjects
Transfer of Personal Data to Third Countries
ePrivacy | Marketing and cookies
General | Data Protection Laws
General data protection laws
The General Data Protection Regulation (EU) (2016/679) (“GDPR”).
In Latvia, the Personal Data Processing Law (the “DPL”) entered into force on 5 July 2018, replacing the Law on the Protection of Personal Data of Natural Persons (the “DPA”) of 2000.
Entry into force
The GDPR has applied since 25 May 2018.
National Supervisory Authority
Details of the competent national supervisory authority
The DPL states that the Data State Inspectorate will continue to act as the supervisory authority in Latvia.
Data State Inspectorate (the “DSI”)
Blaumana 11/13 – 15
The Data State Inspectorate will represent Latvia on the European Data Protection Board.
Notification or registration scheme and timing
There is no obligation to notify regulators of any processing under the GDPR. However, controllers and processors must keep a record of their processing and make it available to their supervisory authority on request (subject to limited exemptions).
Exemptions to notification
Scope of Application
What is the territorial scope of application?
The GDPR applies to the processing of personal data in the context of the establishment of a controller or processor in the EU.
It also contains express extra-territorial provisions and will apply to controllers or processors based outside the EU that: (i) offer goods or services to individuals in the EU; or (ii) monitor individuals within the EU. Controllers and processors caught by these provisions will need to appoint a representative in the EU, subject to certain limited exemptions.
The European Data Protection Board has issued Guidelines on the territorial scope of the GDPR (3/2018).
Is there a concept of a controller and processor?
Yes. The GDPR contains the concept of a controller, who determines the purpose and means of processing, and a processor, who just processes personal data on behalf of the controller.
Both controllers and processors are subject to the rules in the GDPR, but the obligations placed on processors are more limited.
Are both manual and electronic records subject to data protection legislation?
Yes. The GDPR applies to both electronic records and structured hard copy records.
Are there any national derogations?
The GDPR does not apply to law enforcement activities which are instead subject to the Law Enforcement Directive. The GDPR also does not apply to areas of law that are outside the scope of Union law, such as national security, and does not apply to purely personal or household activity.
The DPL provides that in certain situations specific provisions of the GDPR will not apply, namely: (i) data subjects will not be entitled to receive certain information, where such information cannot be disclosed for reasons of national security and defence, public safety, in tax matters, in the field of anti-money laundering and terrorism financing or concerning supervision of financial market supervision or macroeconomic analysis. Data subjects will also not be entitled to learn of data recipients including state bodies pursuing criminal procedures and other institutions whose disclosure is prohibited by law; (ii) the rights of data subjects will not apply to data processing carried out pursuant to law to ensure official publications; (iii) the rights of data subjects under the GDPR must be used pursuant to the laws governing statistics and can be limited in certain circumstances where the application of the rights is likely to render impossible or seriously impair the achievement of the objective of that processing; (iv) the archiving rights of data subjects under the GDPR must be used pursuant to the laws governing archiving. If data processing is carried out for archiving purposes in the interests of the general public (e.g. for national heritage purposes), rights can be limited in certain circumstances where the application of the rights is likely to render impossible or seriously impair the achievement of the objective of that processing; (v) the rights of data subjects under the GDPR for the processing of personal data for scientific or historical research purposes in the interests of general public can be limited in certain circumstances where the application of the rights is likely to render impossible or seriously impair the achievement of the objective of that processing; (vi) the GDPR does not apply to data processing (except for GDPR article 5) for journalism purposes carried out pursuant to the applicable journalism laws and where the interests of the data subjects are not greater than the interests of the general public and observance with the GDPR would not be possible or it or would restrict the freedom of speech; (vii) the GDPR does not apply to cameras used for road traffic purposes (i.e. dash-cameras). However, it will be prohibited to share such data with third parties, except state institutions for the fulfilment of their legal functions and to other controllers for the protection of their legitimate interests. The DPL will also not apply to CCTV cameras if they are used by natural persons for personal or household reasons, except where cameras survey public areas on a large scale or where technical aids are used for structuring of information; (viii) special rules apply to the data processing of criminal law matters and data processing carried out by Eurojust and Europol; (ix) special exceptions apply when balancing the interests of the general public with basic rights of individuals.
What is personal data?
Personal data is information relating to an identified or identifiable natural person.
This is a broad term and includes a wide range of information. The GDPR expressly states it includes online identifiers such as cookies.
Is information about legal entities personal data?
No. However, information about sole traders and partnerships is likely to be personal data.
What are the rules for processing personal data?
All processing of personal data must comply with all six general data quality principles. Personal data must be: (i) processed fairly, lawfully and transparently; (ii) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (iii) adequate, relevant and not excessive; (iv) accurate and, where necessary, up to date; (v) kept in an identifiable form for no longer than necessary; and (vi) kept secure.
The processing of personal data must also satisfy at least one condition for processing personal data. These conditions are that the processing is: (a) carried out with the data subject’s consent; (b) necessary for the performance of a contract with the data subject; (c) necessary for compliance with a legal obligation; (d) necessary in order to protect the vital interests of the data subject; (e) necessary for the public interest or in the exercise of official authority; or (f) necessary for the controller’s or recipient’s legitimate interests, except where overridden by the interests of the data subject.
These rules are almost identical to the core requirements for processing personal data in the old Data Protection Directive. The European Data Protection Board has issued Guidelines on the performance of a contract processing condition for online services (2/2019).
Are there any formalities to obtain consent to process personal data?
The requirements for consent under the GDPR are strict.
To be valid, consent must be in clear and plain language and, where sought in writing, separate from other matters. Consent must be based on affirmative action so pre-ticked boxes are not acceptable. Consent might not be valid if: (i) there is any detriment to the data subject for refusing; (ii) there is an imbalance of power; (iii) consent for multiple purposes is bundled together; or (iv) the consent is a condition of entering into a contract. Finally, consent can be withdrawn at any time.
In practice, other processing conditions should be relied on where possible. Consent will only be an appropriate processing condition if the individual has a genuine choice over the matter, for example, whether to be sent marketing materials.
The Article 29 Working Party has issued Guidelines on Consent (WP259).
Are there any special rules when processing personal data about children?
Consent from a child in relation to online services will only be valid if authorised by a parent. A child is someone under 16 years old, though Member States may reduce this age to 13.
In Latvia, the DPL reduces the age at which a child can provide a valid consent to 13 years old.
Are there any special rules when processing personal data about employees?
The GDPR allows Member States to implement more specific national rules governing the processing of personal data about employees. It may also be possible to process special category personal data where it is necessary for a legal obligation in the field of employment law.
National laws permit processing of the following types of data in an employment relationship: (i) processing relating to enforcement of rules regarding admissible job interview questions, and (ii) processing in relation to an employer’s duty to ascertain employee membership in a trade union prior to giving notice on termination of employment contract.
Furthermore, an employer cannot process employee personal data related to criminal convictions except in situations where the law regulating the employee’s specific position allows for such processing. In addition, an applicant has a duty to provide information to the employer regarding the state of their health if it may impact their possibility to carry out the work.
Sensitive Personal Data
What is sensitive personal data?
Special category data is personal data consisting of racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation.
The inclusion of genetic and biometric data is new and an extension to the types of sensitive personal data in the Data Protection Directive.
Information about criminal offences is dealt with separately and is subject to even tighter controls.
Are there additional rules for processing sensitive personal data?
Special category data may only be processed if a condition for processing special category data is satisfied. A condition arises where the processing: (a) is carried out with the data subject’s explicit consent; (b) is necessary for a legal obligation in the fields of employment, social security and social protection law; (c) is necessary to protect the vital interests of the data subject or another person where the data subject is unable to give consent; (d) is carried out by a non-profit-seeking body and relates to members of that body or persons who have regular contact; (e) relates to data made public by the data subject; (f) is necessary for legal claims; (g) is for reasons of substantial public interest under EU or Member State law; (h) is necessary for healthcare reasons; (i) is necessary for public health reasons; or (j) is necessary for archiving, scientific or historical research purposes or statistical purposes and is based on EU or Member State law.
The DPL does not introduce any specific national conditions for sensitive data processing, however there are general derogations on the application of the GDPR (see above) and these may also relate to sensitive data processing.
Are there additional rules for processing information about criminal offences?
It is only possible to process personal data relating to criminal convictions or offences if: (a) it is carried out under the control of official authority; or (b) when the processing is authorised by EU or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects.
The DPL does not provide any specific national conditions for data processing relating to criminal offences. However, Latvian labour law provides that employees can be asked about previous convictions only in cases where it is relevant to the duties to be performed and it is required by law. The DSI clarifies that this only applies to positions which cannot be filled by persons with previous convictions (e.g. attorneys, people that work with children and financial and insurance sector management). In cases where it is permissible to ask for such information from a candidate, the employer in question can obtain such background information from the relevant state registers.
Background checks on other data subjects (i.e. suppliers, clients, etc.), will generally not be possible, unless the data subject voluntarily provides such information. However, given the general GDPR rule that processing of such information should be limited to specific persons and cases, it is questionable whether it is even permissible to ask data subjects to voluntarily provide this information.
Are there any formalities to obtain consent to process sensitive personal data?
Consent to process sensitive personal data must be explicit. The general restrictions on consent, set out above, will also apply. This suggests a degree of formality, such as ticking a box containing the express words “I consent”. It is unlikely explicit consent could be obtained through a course of conduct.
Data Protection Officers
When must a data protection officer be appointed?
Both controllers and processors must appoint a data protection officer if: (i) they are a public authority; (ii) their core activities consist of regular and systematic monitoring of data subjects on a large scale; or (iii) their core activities consist of processing special category personal data on a large scale (including processing information about criminal offences).
Data protection officers must also be appointed where required by national law. The DPL does not specify any additional mandatory obligation to appoint data protection officers.
However, the DPL provides additional details about the appointment of a data protection officer. In order to serve as a data protection officer, a person can pass an examination procedure set up by the DSI, which certifies that the data protection officer meets the GDPR requirements. The DPL also allows controllers to choose another person, who has not taken the DSI exam, and appoint him or her as a data protection officer, provided that he or she meets the GDPR requirements.
What are the duties of the data protection officer?
The data protection officer must be involved in all data protection issues and cannot be dismissed or penalised for performing their role. The data protection officer must report directly to the highest level of management. Details of the data protection officer must be communicated to the relevant supervisory authority.
The Article 29 Working Party has issued Guidelines on Data Protection Officers (WP243).
Accountability and Privacy Impact Assessments
Is there a general accountability obligation?
The GDPR adds a new general accountability obligation under which you must not only comply with these new rules, but also be able to demonstrate you comply with them. This means ensuring suitable policies are in place supported by audit and training.
Are privacy impact assessments mandatory?
A privacy impact assessment must be conducted where “high risk” processing is carried out. This includes: (a) systematic and extensive profiling that produces legal effects or significantly affects individuals; (b) processing on a large scale either special categories of personal data or personal data relating to criminal convictions and offences; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV). Where the assessment indicates the risk cannot be mitigated, the controller must consult the relevant supervisory authority.
The Article 29 Working Party has subsequently issued Guidelines on Data Protection Impact Assessments (WP 248). It suggests there are nine criteria to consider to determine whether to conduct a privacy impact assessment, and that an assessment should be made if two or more of those criteria are met. This is arguably wider than the criteria set out in the paragraph above.
In Latvia, the DSI has commented that impact assessments would be required for similar situations where previously controllers had to register data processing under the DPA. The DSI has issued a list of situations when impact assessments should be carried and how to conduct them. The list is based on the Article 29 Working Party Guidelines on Data Protection Impact Assessments.
Rights of Data Subjects
A controller must provide data subjects with a privacy notice setting out how the individual’s personal data will be processed. The privacy notice must contain the enhanced transparency information.
The Article 29 Working Party has issued Guidelines on Transparency (WP260).
In Latvia, the DPL does not specify language requirements for privacy notices. In addition to the GDPR requirements, the Latvian official language law determines the language that must be used for the relevant processing activity. Namely, the Latvian language must be used in relation to consumers, public bodies and employees who do not have a command of the language in which the document is issued (or where they cannot be expected to have command of such language).
Rights to access information
Data subjects will have a right to access copies of their personal data by making a written request to the controller. The initial request is free, though a charge can be made for subsequent requests. Controllers can refuse the request if it is manifestly unfounded or excessive. The response must be provided within a month, though this can be extended by two months if the request is complex.
Rights to data portability
Data subjects will also have a right to data portability where the condition for processing personal data is consent or the performance of a contract. It entitles individuals to obtain any personal data they have “provided” to the controller in a machine-readable format. Individuals can also ask for the data to be transferred directly from one controller to another. There is no right to charge fees for this service.
The Article 29 Working Party has issued Guidelines on data portability (WP242).
Right to be forgotten
A data subject can ask that their data be deleted in certain circumstances. However, those circumstances are relatively limited, for example where the processing is based on consent, that consent is withdrawn and there are no other grounds for processing. Even where the right does arise, there are range of exemptions, for example where there is a legal obligation to retain the data.
The European Data Protection Board has issued Guidelines on the criteria of the Right to be Forgotten in the search engines cases under the GDPR (part 1) (5/2019).
Objection to direct marketing
A data subject can object to their personal data being processed for direct marketing purposes at any time. This includes profiling to the extent related to direct marketing.
The GDPR contains a range of other rights, including a right to have inaccurate data corrected. There is also a right to object to processing being carried out in the performance of a public task or under the legitimate interests condition.
Finally, there are controls on taking decisions based solely on automated decision making that produce legal effects or similarly significantly affects the data subject. The Article 29 Working Party has issued Guidelines on Automated Decision Making and Profiling (WP251).
Security requirements in order to protect personal data
The GDPR contains a general obligation to implement appropriate technical and organisational measures to protect personal data.
In addition, controllers and processors must ensure, where appropriate: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of its information technology systems; (iii) 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 (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
Specific rules governing processing by third party agents (processors)
A controller must ensure that any processor it instructs will ensure adequate security for personal data and otherwise meet the requirements of the GDPR.
The controller must have written contracts with its processor containing the enhanced processor clauses.
Notice of breach laws
A personal data breach must be notified to the relevant supervisory authority unless it is unlikely to result in a risk to data subjects. The notification must, where feasible, be made within 72 hours. If the personal data breach is a high risk for data subjects, those data subjects must also be notified.
Specific notice of breach laws apply to the electronic communications sector under national laws implementing the Privacy and Electronic Communications Directive and to operators of essential services and digital service providers under national laws implementing the Network and Information Systems Directive.
The Article 29 Working Party has issued Guidelines on Personal Data Breach Notification (WP250).
The DSI has not issued local guidance on breach notifications but has been asked to comment on the Article 29 WP draft guidelines on breach notifications (WP250, dated 3 October 2017) which are and will most likely remain the only guidance on the subject. Additionally, a notice of breach form has been published by the DSI, which can be used to notify the DSI in relevant circumstances (although the use of the form is not mandatory when notifying the DSI).
Transfer of Personal Data to Third Countries
Restrictions on transfers to third countries
The GDPR contains a restriction on transborder dataflows. A transfer can take place if it: (i) is to a whitelisted country; (ii) is made pursuant to a set of Model Contracts; (iii) is made pursuant to binding corporate rules; (iv) is made to an importer who has signed up to an approved code or obtained an approved certification; or (v) is otherwise approved by the relevant supervisory authority.
Transfers are also possible if an individual derogation applies. These derogations allow a transfer if it: (i) is made with the data subject’s explicit consent; (ii) is necessary for the performance of a contract with, or in the interests of, the data subject; (iii) is necessary or legally required on important public interest grounds, or for legal claims; (iv) is necessary to protect the vital interests of the data subject; (v) is made from a public register; or (vi) is made under the so-called minor transfer exemption.
The position is broadly the same as under the old Data Protection Directive. One notable change is the introduction of the so-called minor transfer exemption, though that exemption will be very hard to rely on in practice.
The European Data Protection Board has issued Guidelines on derogations applicable to international transfers (2/2018).
Notification and approval of national regulator (including notification of use of Model Contracts)
In general, there is no need for prior approval from a supervisory authority. However, this depends on the justification for the transfer.
For example, there will be no obligation to get approval for the use of Model Contracts (though it is possible some supervisory authorities may want to be notified of their use). In contrast, it will be necessary to get approval to rely on binding corporate rules, and the supervisory authority must be informed of transfers made using the minor transfers exemption.
Use of binding corporate rules
The GDPR places binding corporate rules on a statutory footing. It will be possible to obtain authorisation from one supervisory authority (subject to approval through the consistency mechanism) that will cover transfers from anywhere in the EU.
In Latvia binding corporate rules are currently recognised as permissible means of data transfers outside of the EU/EEA and the DPL does not provide any special local exemptions for them.
The GDPR is intended to make data protection a boardroom issue. It introduces an antitrust-type sanction regime with fines of up to 4% of annual worldwide turnover or €20m, whichever is the greater. These fines apply to breaches of many of the provisions of the GDPR, including failure to comply with the six general data quality principles or carrying out processing without satisfying a condition for processing personal data.
A limited number of breaches fall into a lower tier and so are subject to fines of up to 2% of annual worldwide turnover or €10m, whichever is the greater. Failing to notify a personal data breach or failing to put an adequate contract in place with a processor fall into this lower tier.
The Article 29 Working Party has issued Guidelines on administrative fines (WP253).
Latvian criminal law provides that an individual who has committed criminal acts involving personal data can be imprisoned for up to 5 years. Criminal liability can be imposed where data has been processed: (i) illegitimately and resulted in material damage; (ii) for the purpose of vengeance, acquisition of property or blackmail; or (iii) using violence, threats or in bad faith, or using deceit in order to perform illegal activities involving personal data.
Data subjectshave a right to compensation in respect of material and non-material damage.
Regulators will have a range of other powers and sanctions at their disposal. This includes investigative powers, such as the ability to demand information from controllers and processors, and to carry out audits. They will also have corrective powers enabling them to issue warnings or reprimands, to enforce an individual’s rights and to issue a temporary or permanent ban on processing.
According to the DPL, the DSI will have the right to visit real estate such as production facilities, warehouses, commercial and other non-residential premises in the territory of Latvia owned, under the possession of or used by natural or legal persons to inspect the data controller’s compliance with laws within the competence of the DSI. Before visiting the place of inspection, the DSI shall inform the data controller about the purpose of the planned visit, time and place and shall request the presence of the controller’s authorized representative.
- An online store service provider was fined €7,000 in August 2019 for continuing to send advertisements to a data subject despite requests from the data subject to delete their personal data from the service provider's system.
- The latest information on the breaches of data protections laws shows that in November 2019, the DSI imposed the largest fine in Latvia so far – a fine of €150 000, that was imposed on company, whose name is not disclosed, for the inability to demonstrate compliance with personal data protection requirements and its failure to provide information to individuals on the collection and use of personal data, as well as infringements of the principle of accountability and transparency. This was an international investigation which was initiated after receiving a complaint from a Spanish citizen.
Other enforcement action:
According to the latest press releases by DSI, in 2019 the DSI had received 1,197 complaints from data subjects, 107 reviews / inspection of possible violations were initiated and in 15 situations the DSI had imposed monetary penalty for the violations of the GDPR. It has been announced to the public that the DSI continued its “consult first” policy during 2019, thus more activity could be expected in 2020.
ePrivacy | Marketing and cookies
Latvian ePrivacy laws are contained in the Electronic Communications Law (the “ECL”) and the Law on Information Society Services (the “LISS”), both of which implemented Article 13 of the Privacy and Electronic Communications Directive. The ECL stipulates the allocation of supervisory functions for the electronic communications market. The ECL provides for the protection of user data, including the protection of personal data in the field of electronic communications services. The LISS ensures free movement of information services in the EEA countries, specifies the cases in which the service supplier may offer information society services, lists the scope of information to be provided to the recipient of a service, as well as determines the liability and obligations of suppliers of agency services. Compliance with the law is supervised by the Consumer Rights Protection Centre (the “CRPC”) and the DSI.
The ECL and LISS were amended on 19 May 2011 to implement the amendments to the Privacy and Electronic Communications Directive.
Conditions for direct marketing by e-mail to individual subscribers
Sending commercial notices to an individual contact by e-mail is prohibited under Latvian law if the recipient of a service has not given a prior, free and clear consent to the receipt thereof. In accordance with the LISS, a commercial notice means any notice in electronic form that is intended for direct or indirect advertising of goods and services. However, a notice providing direct access to the general information on a service supplier and its activities, for example, a domain name or e-mail address, is not deemed to be a commercial notice.
Conditions for direct marketing by e-mail to corporate subscribers
Direct marketing by e-mail to corporate subscribers (legal entities) is permitted as long as an option to unsubscribe is provided in each e-mail. There is no need for prior approval.
Exemptions and other issues
The similar products and services exemption applies. The LISS also prohibits the use of e-mail to send commercial notices if the identity of the sender is hidden or concealed or an invalid e-mail address is used.
The sender must also include the eCommerce information.
Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)
Giving commercial notices to individual subscribers by telephone is prohibited under Latvian law if the recipient of a service has not given a prior, free and clear consent to the receipt thereof.
Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)
The law does not require obtaining prior approval from legal entities to use marketing by telephone. However, requests to discontinue such calls in future still have to be respected.
Exemptions and other issues
Invalid or concealed phone numbers cannot be used when marketing by telephone.