Data Protected - Croatia

Contributed by Porobija & Porobija

Last updated July 2018

General | Data Protection Laws

National Legislation
National Supervisory Authority
Scope of Application
Personal Data
Sensitive Personal Data
Data Protection Officers
Accountability and Privacy Impact Assessments
Rights of Data Subjects
Security
Transfer of Personal Data to Third Countries
Enforcement

ePrivacy | Marketing and cookies

National Legislation
Cookies
Marketing by E-mail
Marketing by Telephone

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General | Data Protection Laws

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National Legislation

General data protection laws

The General Data Protection Regulation (EU) (2016/679)(“GDPR”).

The Act on Implementation of the General Data Protection Regulation (Official Gazette no. 42/2018) (“AIGDPR”). The AIGDPR also applies as of 25 May 2018.

Entry into force

The GDPR applies from 25 May 2018.

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National Supervisory Authority

Details of the competent national supervisory authority

Agencija za zaštitu osobnih podataka (Personal Data Protection Agency) (the “Agency”)
Marti
ćeva 14
HR - 10 000 Zagreb

www.azop.hr

It has not yet been made public who will represent Croatia on the European Data Protection Board.

Notification or registration scheme and timing

Controllers and processors must inform the Agency about the appointment of any data protection officer, using the form published by the Agency

Exemptions to notification

Not applicable.

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Scope of Application

What is the territorial scope of application?

The GDPR applies 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.

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 AIGDPR contains a derogation for the processing of personal data by the competent authorities in relation to the prevention, investigation, detection or prosecution of criminal offences or enforcement of criminal sanctions, including protection from threats to public security and their prevention, as well as in the area of national security and defence.

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Personal Data

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 IP addresses and cookie identifiers.

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: (a) processed fairly and lawfully; (b) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (c) adequate, relevant and not excessive; (d) accurate and, where necessary, up to date; (e) kept in an identifiable form for no longer than necessary; and (f) 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 Data Protection Directive.

Are there any formalities to obtain consent to process personal data?

Obtaining consent will become much harder under the GDPR. 

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 Croatia, the age limit will remain at 16 for valid consent from a child in relation to online services. However, this restriction only applies to a child with permanent residence in Croatia.

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Sensitive Personal Data

What is sensitive personal data?

Sensitive personal 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?

Sensitive personal data may only be processed if a condition for processing sensitive personal 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 field of employment 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.

Pursuant to the AIGDPR, the processing of genetic data for the purpose of medical diagnosis in relation to life insurance contracts or similar, is prohibited (including on the basis of consent). This restriction applies to data subjects entering into such contracts in Croatia where the relevant data controller is established in Croatia or provides services in Croatia.  

Biometric data may be processed if it is prescribed by law or if necessary for the protection of persons, property, classified information, business secrets or for individual and secure identification of services users, and this processing is not overridden by the data subjects’ interests. The legal basis for the processing of biometric data for the purpose of secure identification of services user is an explicit consent. For the processing of biometric data by public authorities, the AIGDPR provides for a different set of conditions.

The biometric data of employees may be processed for the purpose of recording working hours and for entry into/exit from the business premises, if such processing is prescribed by the law or is carried out as an alternative solution for recording working hours or entry into/exit from the business premises, under the condition that the employee has provided explicit consent.

In either case, a data protection impact assessment is likely and the restriction on biometrics does not apply in matters of defence, national security and security-intelligence system.

Furthermore, the AIGDPR contains special provisions concerning video surveillance. This may only be used for the protection of persons and property and this purpose must not be overridden by the interests of data subjects. A prominent notice warning of such recording must be visible upon entering the perimeter of the recording and must contain the enhanced transparency information and an easily understandable icon indicating that the area is under video surveillance, information about the identity of the controller and its contact details. The video surveillance system must be accessible only to authorised persons and logs must be kept to record access to that material. Recordings obtained from video surveillance may be stored for a period up to six months. Protection at Work Act (Official Gazette nos. 71/2014, 118/2014, 154/2014) contains more detailed provisions concerning video surveillance of work premises.

Are there additional rules for processing information about criminal offences?

It is only possible to process information about 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.

Pursuant to the AIGDPR, the processing of personal data related to criminal offences by the competent authorities is explicitly excluded from its application. The processing of personal data about criminal offences is currently regulated by the Law on Criminal Procedure (Official Gazette nos. 152/2008, 76/2009, 80/2011, 91/2012, 143/2012, 56/2013, 145/2013, 152/2014, 70/2017), prescribing, inter alia, that processing must be carried out only for purposes determined by law.

The processing of information about criminal offences is generally not allowed unless it is permitted by local law. For instance, an employer may be entitled to process information about criminal offences of applicants for certain roles if a clean criminal record is a prerequisite for such employment.

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.

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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 sensitive personal data on a large scale (including processing information about criminal offences).

The AIGDPR does not contain any additional provisions in relation to data protection officers.

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. 

The Article 29 Working Party has issued Guidelines on Data Protection Officers (WP243).

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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 sensitive personal data on a large scale; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV).

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. 

On 25 May 2018, the Agency adopted a decision containing a list of types of processing that involve high risk. This includes: (i) processing of personal data for systematic and extensive profiling or automated decision making in order to make conclusions that significantly influence or affect an individual, or that serve as an aid in making a decision about someone's access to a service or benefit; (ii) processing of sensitive personal data for profiling or automated decision making; (iii) processing of personal data of children for profiling or automated decision making or for marketing purposes, or for direct offering of services; and (iv) processing of personal data collected from third parties that are taken into account when making decisions regarding the conclusion, termination, rejection or extension of service contracts to natural persons etc.

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Rights of Data Subjects

Privacy notices

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).

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. 

Objection to direct marketing

A data subject can object to their personal data being processed for direct marketing purposes at any time. This includes the processing of their personal data for profiling purposes.

Other rights

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).

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Security

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. 

The Article 29 Working Party has issued Guidelines on Personal Data Breach Notification (WP250).

Specific notice of breach laws apply to the electronic communications sector under the Privacy and Electronic Communications Directive

Controllers in certain sectors may be required to inform sectoral regulators of any breach, pursuant to special regulations governing their operation. For example, pursuant to the ZEK (as defined below), electronic communication operators must inform the Croatian Regulatory Authority for Network Industries of any breach of personal data regulations.

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Transfer of Personal Data to Third Countries

Restrictions on transfers to third countries

The GDPR contains a restriction on transborder dataflows. Transfers can take place if it: (i) is to a whitelisted country; (ii) is made pursuant to a set of Model Contracts; (ii) 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 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 that will cover transfers from anywhere in the EU.

No list of approved binding corporate rules is currently publicly available.

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Enforcement

Fines

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).

Imprisonment

The Criminal Act (Official Gazette nos. 125/2011, 144/2012, 56/2015, 61/2015, 101/2017) prescribes that the collection, processing or use of personal data contrary to the law may constitute a criminal offence. Individuals may face imprisonment of up to one year. The maximum sentence is increased to three years of imprisonment where significant gain or damage results from such criminal offence or where the criminal offence is committed with respect to a child or sensitive personal information.

Imprisonment of up to three years may also be imposed for the transfer of personal data outside Croatia for further processing contrary to the law, or for disclosing personal data contrary to the law.

Pursuant to Law on the Responsibility of Legal Persons for Criminal Acts (Official Gazette nos. 151/03, 110/07, 45/211, 143/12) a legal entity may face significant monetary fines for such criminal offence.

Compensation

Data subjects have a right to compensation in respect of material and non-material damage.

Other powers

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. 

Practice

In Croatia, there is no current enforcement practice in relation to the GDPR.

According to the Agency’s report for 2016, the Agency conducted 942 inspection proceedings.

The majority, 736, were ex officio inspection proceedings and indirect supervisions. There were also 184 inspection proceedings at the request of data subjects and 22 inspection proceedings at the request of third parties.

The Agency also processed 142 requests by individuals and third parties (such as ombudsmen, unions, media) for enforcement of their data protection rights. As a result, the Agency implemented non-monetary sanctions, such as warnings and orders or bans, and initiated four minor offence proceedings.

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

Croatian ePrivacy laws are contained in: (i) the Electronic Communications Act (Official Gazette nos. 73/08, 90/11, 133/12, 80/13, 71/14, 72/2017, “ZEK”) implementing the Privacy and Electronic Communications Directive, and (ii) the Consumer Protection Act (Official Gazette nos. 41/2014, 110/2015) and (iii) other e-laws, such as the Electronic Commerce Act (Official Gazette nos. 173/03, 67/08, 130/11, 36/09, 30/14, “ZET”).

The public authority entrusted with the supervision of the implementation of the respective provisions of ZEK is the Croatian Regulatory Authority for Network Industries.

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Cookies

Conditions for use of cookies

The ZEK contains specific cookies provisions, implementing the Privacy and Electronic Communications Directive. Use of cookies is only allowed if the subscriber or user has given his consent, having been provided with clear and comprehensive information in accordance with general data protection laws (in particular on the purpose of data processing). An exception is provided: (i) where such use of cookies is necessary for communication transmission by means of an electronic communication network; or (ii) if it is necessary for the provision of an information society service requested by the subscriber or the user.

Regulatory guidance on the use of cookies

There is no regulatory guidance on the use of cookies.

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Marketing by E-mail

Conditions for direct marketing by e-mail to individual subscribers

Direct marketing by e-mail is governed by the ZEK and is only permitted with the subscriber's or user's prior consent.

Conditions for direct marketing by e-mail to corporate subscribers

The direct marketing rules do not apply to legal persons.

Exemptions and other issues

The ZEK allows direct marketing by e-mail where the similar products and services exemption applies.

The ZEK prohibits the sending of e-mail for purposes of direct marketing which: (i) disguises or conceals the identity of the sender on whose behalf the communication is made and is contrary to special e-commerce laws; or (ii) is sent without a valid address to which the recipient may respond without charge; or (iii) encourages the recipients to visit web sites that are contrary to special e-commerce laws. Pursuant to the ZET, the e-mail communication must also include the eCommerce information.

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Marketing by Telephone

Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)

Pursuant to the ZEK, direct marketing via automated calls (including SMS) is only permitted with the subscriber's or user's prior consent. There are no special provisions concerning non-automated calls.

Pursuant to the GDPR, a data subject may object to the processing of his personal data for the purpose of marketing. Accordingly, non-automated marketing calls to individual subscribers are prohibited where the subscriber has objected to such marketing calls.

Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)

The direct marketing rules do not apply to legal persons.

Exemptions and other issues

Pursuant to the ZET, any communication must also include the eCommerce information.

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