Data Protected - Czech Republic

Contributed by Kinstellar

Last updated March 2020

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”).

A new Data Processing Act implementing the GDPR has been introduced as Act. No. 110/2019 Coll. (the “DPA”). The DPA completely replaces Act No. 101/2000 Coll., on Personal Data Protection.

In the areas of law not regulated by the GDPR, the Czech Republic will be subject to the DPA.

Entry into force

The GDPR has applied since 25 May 2018.

The DPA entered into force on 24 April 2019. 

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National Supervisory Authority

Details of the competent national supervisory authority

The Office for Personal Data Protection will continue to act as the supervisory authority in the Czech Republic.

Office for Personal Data Protection (Úřad pro ochranu osobních údajů) (the “Office”)
Pplk. Sochora 27,
170 00, Prague 7
Czech Republic

www.uoou.cz

The head of the Office will represent the Czech Republic 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

Not applicable.

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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 DPA contains a number of additional national derogations, including for journalism, academic, artistic or literary speech and prevention, criminal investigation or exposure of crime.

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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 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 the Czech Republic, the age for the digital consent of children with processing of their personal data is lowered to 15 years of age.

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.

The DPA does not provide for any specific national rules in this area.

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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.

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 DPA allows the processing of information about criminal offences in similar situations to those in which sensitive personal data can be processed.

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 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. In addition to the GDPR requirements, the DPA imposes an obligation to appoint a data protection officer if the processing is carried out by an authority established by law that is authorised to carry out statutory tasks in the public interest.

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).

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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 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 the Czech Republic, the Office has the power to draw up a list of “high risk” processing but such list is likely to vary over time. In February 2019, the Office published a list of the kind of processing operations for which data protection impact assessment is and is not required. It has communicated this list to the European Data Protection Board.

On 23 October 2019, the Office has further published a draft of the General Data Protection Impact Assessment (DPIA) Methodology to provide additional guidance on how the controllers and other subjects conducting privacy impact assessment should proceed.

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Rights of Data Subjects

Privacy notices

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 the Czech Republic, there is no obligation to provide this information in Czech, though it may be difficult to show that the information has been fairly provided if it is not in a language the data subject is familiar with.

Rights to access information

Data subjects will have a right to access copies of their personal data by making a written request to thecontroller.The initial request is free, though a charge can be made for subsequent requests. Controllerscan 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

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

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.

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 subjectThe 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)

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)

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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. 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.

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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 current penal code of the Czech Republic contains the following two criminal offences in connection with misuse of personal data.

The first is causing serious harm to the rights or legitimate interests of a data subject by misuse of personal data (even out of negligence): (i) collected in connection with the execution of public authority powers; or (ii) collected in connection with employment, profession or function while breaching state-imposed confidentiality obligations. This criminal offence might be punished by up to three years of imprisonment. For cases of more serious consequences or of more serious motive for this this criminal offence, it may be punished by up to eight years of imprisonment.

The second is misuse of personal data for stalking. This criminal offence might be punished by up to one year of imprisonment. For cases of more serious consequences of this this criminal offence, it may be punished by up to three years of imprisonment.

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

Fines:

  • A fine of 10,000 was imposed in March 2019 on a branch of an international bank for storing an electronic biometric signature of clients who concluded a loan agreement online (breach of the principle of data minimisation) and storing all records of phone calls with clients who concluded agreements on provision of banking services or loan agreements for the whole duration of the agreements plus 10 years (breach of the principle of storage limitation).
  • A fine of 3,200 was imposed in May 2019 on a bank for the unauthorized opening of (one) bank account on the basis of data provided for another purpose (breach of data security, breach of the principle of lawfulness, fairness and transparency and purpose limitation).
  • A fine of 1,200 was imposed in February 2019 for a data breach relating to the discovery of 300 loan agreements in public garbage bins. This was attributed to negligence of the executive director of a loan broker company who left the documents in her garage accessible to the public. We understand the Office imposed a lower fine due to the low income of the company.
  • A fine of 600 was imposed in February 2019 for a data breach relating to the deliberate leak of a database of players of an online game by the game’s programmer. The Office imposed a lower fine as the company cooperated with the Office during the investigation and informed the data subjects.
  • A car rental company was fined 1,165 in February 2019 for GPS tracking a rental car without informing the customer.
  • A school was fined €260 in January 2019 for disclosing personal information of its former employee on Facebook despite the repeated calls for its removal.

Other enforcement action: As of 15 November 2019, there were 17 fines altogether between 200 and 10,000 for the breach of GDPR in the Czech Republic.

The highest penalty imposed to date for the breach of Act No. 101/2000 Coll., on Personal Data Protection was CZK 3.6 million in 2016. In this case the Office penalized T-Mobile Czech Republic for insufficient security of personal data of 1.2 million customers stored in its internal electronic databases, which led to an abuse of the personal data by an employee of T-Mobile Czech Republic.

In 2017 the Office imposed the highest penalty for unsolicited market communication. A marketing company was penalised for sending marketing spam without prior consent of addressees. The amount of fine was CZK 4.25 million.

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

Act No. 480/2004 Coll., on Certain Information Society Services (the “ECA”) implemented Article 13 of the Privacy and Electronic Communications Directive in the Czech Republic.

The ECA has been updated to implement the amendments to the Privacy and Electronic Communications Directive.

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Cookies

Conditions for use of cookies

Cookies are regulated by Act No. 127/2005 Coll. on Electronic Communications (the “Electronic Communications Act”). Under the Electronic Communications Act, there is no requirement to obtain the user’s consent for the use of a cookie. Currently, it is only necessary to inform the users of the use of cookies and offer them the right to refuse their use (i.e. the opt-out principle). Such obligation does not apply if the cookie is strictly necessary for the provision of a service to the user. This remains the same even after the Electronic Communications Act was amended (i.e. the opt-in principle required by the Privacy and Electronic Communications Directive is not reflected in the latest amendment to the Electronic Communications Act). In addition, the Electronic Communications Act does not expressly refer to the use of browser settings as a means to obtain consent.

The Office performed inspections relating to processing of personal data and GDPR compliance related to the use of cookies in the past year and further announced that the processing of personal data in connection with the use of cookies will be subject to further inspections in the upcoming year 2020.

Regulatory guidance on the use of cookies

The Office issued its Guidance on Processing of Cookies on 25 May 2018. The aim of this document is to summarize both the general and special rules applicable when working with cookies. The Office has indicated it will update its Guidance on Processing of Cookies in light of the CJEU’s decision in Planet49 (C-673/17).

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Marketing by E-mail

Conditions for direct marketing by e-mail to individual subscribers

Under the ECA, direct marketing e-mail may only be sent to individuals: (i) with their prior consent; or (ii) when it relates to a product or service similar to the one already purchased by the individual subscriber with the respective provider in the past, i.e. the individual can be considered as a customer of the provider.

Conditions for direct marketing by e-mail to corporate subscribers

The same conditions as for individual subscribers apply also in case of legal entities being the subscribers.

Exemptions and other issues

The ECA also prohibits direct marketing e-mails from being sent if: (i) the identity of the sender is disguised or concealed; (ii) the e-mail is not clearly and distinctly identified as commercial communication; or (iii) an opt out address is not provided.

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Marketing by Telephone

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

Direct marketing by telephone is not expressly prohibited if individual has not explicitly asked for a note stating he/she does not wish to be bothered with unsolicited telephone calls to be included with his/her telephone number listed in the public telephone directory.

However, GDPR applies to the processing of telephone numbers to the extent they constitute personal data. 

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

The same conditions as for individual subscribers apply also in case of legal entities being the subscribers. 

Exemptions and other issues

The existing customers may object to direct marketing by telephone. 

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