Data Protected - Cyprus

Contributed by Georgiades & Pelides LLC

Last updated September 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

_____________________________________________________________________

General | Data Protection Laws

____________________________________________________________

National Legislation

General data protection laws

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

The law supplementing the GDPR in Cyprus, law no. 125(I)/2018 (the “Data Protection Law”).

Entry into force

The GDPR applies from 25 May 2018.

The Data Protection Law applies from 31 July 2018.

_____________________________________________________________________ Top

National Supervisory Authority

Details of the competent national supervisory authority

The Commissioner for the Protection of Personal Data is the supervisory authority in Cyprus for GDPR purposes and will represent Cyprus on the European Data Protection Board.

Commissioner for the Protection of Personal Data (the “Commissioner”)
1 Iasonos Street
2nd Floor
1082 Nicosia, Cyprus

www.dataprotection.gov.cy

Notification or registration scheme and timing

Notification to the Commissioner is required prior to the transfer of sensitive personal data to a third country

Exemptions to notification

Notification is not required where the transfer is to a whitelisted country.

_____________________________________________________________________Top

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?

In Cyprus, processing for journalistic or academic purposes or for the purposes of artistic or literary expression is lawful, subject to such processing being proportional in relation to the intended purposes and respecting the data subjects’ fundamental rights and freedoms. The rights of data subjects to be provided with information on and access their personal data under articles 14 and 15 of the GDPR apply to the extent they do not prejudice the right to freedom of expression and the confidentiality of journalistic sources.

Processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes precludes the use of personal data for the purpose of decision making which produces legal effects concerning the data subjects or which similarly significantly affects them.

_____________________________________________________________________Top

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.

In Cyprus, the combination of large scale filing systems of two or more public authorities or bodies is permitted only for reasons of public interest and is subject to a number of restrictions (which may include a data protection impact assessment and prior consultation with the Commissioner).

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. Under the Data Protection Law, a child is someone under 14 years old.

_____________________________________________________________________ Top

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.

The processing of biometric and genetic data for life and health insurance purposes is prohibited.

The combination of large scale filing systems of two or more public authorities or bodies which include sensitive personal data is subject to a data impact assessment and prior consultation with the Commissioner.

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.

Under the Data Protection Law, information about criminal convictions or offences may be processed for journalistic or academic purposes or for the purposes of artistic or literary expression, provided such processing is proportional in relation to the intended purposes and respects the data subjects' 'fundamental rights and freedoms. The rights of data subjects to access their personal data under the GDPR apply to the extent that they do not prejudice the right to freedom of expression and the confidentiality of journalistic sources.

The combination of large scale filing systems of two or more public authorities or bodies which include information on criminal convictions or offences is permitted only for reasons of public interest and is subject to a number of restrictions (which include a data protection impact assessment and prior consultation with the Commissioner).

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.

Consent to process genetic or biometric data must be obtained separately from any other consents or matters. 

_____________________________________________________________________ Top

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).

Data protection officers must also be appointed where required by national law. The Data Protection Law provides that the Commissioner may create a list of processing activities and circumstances in which the appointment of a data protection officer is mandatory, in addition to those provided for under the GDPR. The data protection officer is subject to a duty of confidentiality.

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).

_____________________________________________________________________ Top

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. 

In Cyprus, the Data Protection Law requires a privacy impact assessment to be conducted in a number of circumstances, including (i) before the transfer of sensitive personal data to a third country pursuant to an individual derogation under Article 49 of the GDPR; (ii) before the imposition of any restrictions on data subject rights or in order to obtain an exemption from the obligation to notify data subjects of a data breach, in the circumstances set out in the Data Protection Law; or (iii) before the combination of large scale filing systems of two or more public authorities or bodies where sensitive personal data or data on criminal convictions or offences are involved or where the identity card number or other identifier of general application will be used.

_____________________________________________________________________ Top

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).

Data controllers may impose restrictions on the right to data portability on public policy grounds in accordance with the conditions of Article 23 of the GDPR. This is subject to a data protection impact assessment and prior consultation with the Commissioner, as well as notification of the relevant data subjects. 

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. 

Data controllers may impose restrictions on the right to notification of erasure on public policy grounds in accordance with the conditions of Article 23 of the GDPR. This is subject to a data protection impact assessment and prior consultation with the Commissioner, as well as notification of the relevant data subjects. 

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).

There is also a right to restriction of processing, for example pending verification of the accuracy of the relevant data. Data controllers may impose restrictions on this right on public policy grounds in accordance with the conditions of Article 23 of the GDPR. This is subject to a data protection impact assessment and prior consultation with the Commissioner, as well as notification of the relevant data subjects. 

_____________________________________________________________________ Top

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. Data controllers may be exempt from the obligation to notify the data subjects on public policy grounds in accordance with the conditions of Article 23 of the GDPR (subject to a data protection impact assessment and prior consultation with the Commissioner). 

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

_____________________________________________________________________ Top

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).

In Cyprus, a data protection impact assessment is required in order to be able to rely on an individual derogation for the transfer of sensitive personal data to a third country. 

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.

In Cyprus, transfers of sensitive personal data to a third country other than a whitelisted country must be notified to the Commissioner prior to the relevant transfer. In case of reliance on an individual derogation, a data protection impact assessment and prior consultation with the Commissioner are required. In any of these cases, the Commissioner may impose restrictions for important reasons of public interest. 

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.

Cyprus is already part of the mutual recognition procedure for binding corporate rules.

_____________________________________________________________________ Top

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

Breach of various provisions of the Data Protection Law and the GDPR is a criminal offence which is punishable, upon conviction, by imprisonment for up to 5 years and/or by a fine of up to €50,000.

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 Cyprus, there is no current enforcement practice in relation to the GDPR. However, the enforcement of the current law is instructive.

The Commissioner investigates complaints submitted to her office and also launches her own investigations. Criminal proceedings for contraventions of the previous Data Protection legislation (the “DPA”) have been brought in a limited number of cases and there have been a couple of reported convictions.

The most significant civil sanction imposed by the Commissioner under the DPA to date is a fine of €10,000 imposed in November 2017 on the Cyprus Telecommunications Authority (CYTA), the government-owned telecom operator, for failure to implement appropriate organisational measures (revision of employee access rights on change of position within the organisation) to prevent unauthorised access to and disclosure of personal data of a significant number of CYTA clients to a third party. This matter is still investigated by the police and it is possible that criminal charges may be brought against the employee and/or the third party to whom the data were disclosed.  

In an earlier case, a fine of €3,000 and an order to terminate processing and destroy relevant personal data had been imposed on a company that had infringed the proportionality principle under the DPA  as more data than necessary was being collected. A fine of €3,000 has also been imposed in two occasions for failure by the Nicosia General Hospital to take appropriate security measures to protect patient personal data contained in their hospital files from accidental or unintended loss or destruction.

In another case, the Commissioner imposed a fine of €2,562 on a company that had infringed various provisions of the DPA, including by sending advertising text messages without the prior written consent of the data subjects; and failing to notify the Commissioner of the commencement of processing. The same fine of €2,562 was imposed on the Director - General of a government ministry for breach of the DPA provisions on the security of sensitive personal data.

The most significant civil sanction imposed by the Commissioner under the ePrivacy Law (see below) to date was a fine of €8,000 on a person who had repeatedly infringed various provisions of the ePrivacy Law, specifically: (i) the prohibition on the use of electronic mail for direct marketing purposes without the recipient’s prior consent; and (ii) the requirement that the sender’s identity and a valid electronic mail address, to which a request that communications cease may be sent, be included in such electronic mail.

The first criminal proceeding to be reported under the DPA involved the owner of a massage business who had installed a secret video camera without consent of clients and without notification to the Commissioner. The sentence imposed at first instance was three months’ imprisonment, which was reduced to 55 days on appeal.

In a more recent criminal case, a sentence of 16 months’ imprisonment was imposed on an individual for a breach of the prohibition on unauthorised access to, and processing of, personal data. The case involved the unauthorised use of credit card information of other persons for the purpose of illegal money withdrawals. In another case, the court imposed a criminal fine of €1,200 for the unauthorised dissemination of personal data through social media.

_____________________________________________________________________ Top

ePrivacy | Marketing and cookies

_____________________________________________________________

National Legislation

ePrivacy laws

Cypriot ePrivacy laws are contained in Part 14 of the Law on the Regulation of Electronic Communications and Postal Services of 30 April 2004, Law No. 112(I)/2004, which came into force on 18 May 2012 (the “ePrivacy Law”). The ePrivacy Law has implemented Article 13 of the Privacy and Electronic Communications Directive. The Decree on Legal Persons (Ensuring the Protection of Legitimate Interests with regard to Unsolicited Communications) of 28 January 2005, No. 34/2005 (the “Decree”), which has been issued by the Electronic Communications Commissioner pursuant to the provisions of the ePrivacy Law, came into force on 28 January 2005.

_____________________________________________________________________ Top

Cookies

Conditions for use of cookies

Under the ePrivacy Law, the use of cookies is allowed only with the consent of the subscriber or user concerned, having been provided with clear and comprehensive information, in accordance with the DPA, on, inter alia, the purposes of the processing. There is an exception if the cookie is used for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or if it is strictly necessary for the provision of an information society service requested by that subscriber or user.

Regulatory guidance on the use of cookies

The Commissioner has indicated that the Article 29 Working Party’s opinion on the cookie consent exemption (WP194) and the working document providing guidance on obtaining consent for cookies (WP208) can be used as guidance on the use of cookies.

_____________________________________________________________________ Top

Marketing by E-mail

Conditions for direct marketing by e-mail to individual subscribers

The ePrivacy Law provides that electronic mail may be used for direct marketing purposes only where a subscriber who is a natural person has consented to such use in advance.

Conditions for direct marketing by e-mail to corporate subscribers

The Decree provides that the use of e-mail for direct marketing to subscribers who are legal persons is permitted only where a subscriber has clearly declared, in written or electronic form, its willingness to receive such mail to: (i) the sender; (ii) the person responsible for the Cyprus Telephone Directory Database; or (iii) the provider of e-mail services.

Exemptions and other issues

The ePrivacy Law provides that the similar products and services exemption shall apply in respect of individual as well as corporate subscribers.

The ePrivacy Law prohibits the sending of emails for direct marketing purposes which: (i) conceal the identity of the sender or person on whose behalf the message is sent; (ii) fail to disclose a valid e-mail address to which the recipient may send a request that communications cease; or (iii) encourage recipients to visit websites that fail to provide the eCommerce information.

_____________________________________________________________________ Top

Marketing by Telephone

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

The ePrivacy Law does not include any provisions on the direct marketing by telephone to individual subscribers. Such direct marketing is thus subject to the provisions of the GDPR, i.e. the processing of the personal data of individual subscribers for direct marketing purposes must comply with the general data quality principles and satisfy at least one condition for processing personal data.

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

According to the Decree, direct marketing by telephone to subscribers who are legal persons is permitted only with their prior consent.

Exemptions and other issues

No exemption is available under the ePrivacy Law or the Decree.

_____________________________________________________________________ Top