Data Protected - Estonia

Contributed by Raidla Ellex

Last updated February 2019

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 “Personal Data Protection Act” helps implement the GDPR into Estonian law.

Entry into force

The GDPR applies from 25 May 2018.

The Personal Data Protection Act entered into force on 15 January 2019. 

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National Supervisory Authority

Details of the competent national supervisory authority

The Data Protection Inspectorate will act as the supervisory authority in Estonia.

Data Protection Inspectorate

Väike-Ameerika 19
10129 Tallinn
Estonia

www.aki.ee

The Data Protection Inspectorate will represent Estonia 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. 

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 concept of administrative fines does not exist in the Estonian legal system, this is discussed further below.

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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 Estonia, the Personal Data Protection Act specifies that the age at which children can consent online is 13.

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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.

No additional rules to note.

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.

Currently, the Estonian Criminal Records Database is public, except in relation to: (i) misdemeanour cases where a person has only one valid misdemeanour record, with the main punishment being less than EUR 200 and with no additional punishment; or (ii) data about punishments of minors, being persons who are under 18 years of age.

The Implementation Bill amends the Criminal Records Database Act so that if a person wishes to obtain data about another natural person from the Criminal Records Database, the person must specify the legal basis or purpose for collecting such data. This means that the records will no longer be accessible by everyone. Additionally, no information concerning punishments imposed for misdemeanours can be indicated in an extract from the database concerning other natural persons.

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).

Data protection officers must also be appointed where required by national law. The Personal Data Protection Act does not include any additional mandatory obligation to appoint data protection officers in Estonia.

The Data Protection Inspectorate has stated that it intends to create an opportunity for the voluntary attestation of data protection officers within the Data Protection Inspectorate. Attestation would certify the data protection officer has the necessary knowledge and competence. However, it is currently unknown if and how the attestation system will be implemented. So far, the Data Protection Inspectorate has published a recommendatory list of knowledge and skills necessary for a data protection officer. In addition, some Estonian higher education institutions offer training programs for 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. 

In Estonia, the Data Protection Inspectorate has in the past drawn up an exemplary list of “high processing” which included: (i) assessment of work capacity; (ii) monitoring the use of a computer; (iii) smart devices in a work environment; (iv) processing of web behaviour and processing of location data; (v) processing of financial data; (vi) the provision of insurance products or investment products; (vi) processing data of registered users in an e-shop; (vii) processing of health data; (viii) offering behavioural advertisement; (ix) mediation of job offer; (x) processing of personal data in connection with offering gambling; (xi) extensive processing of data of vulnerable persons, such as children, the elderly, people with intellectual disabilities, asylum seekers; (xii) processing which combines and compares the composition of personal data from different sources (Big Data, large-scale data processing); and (xiii) cross-border transfer of personal data outside the European Union.

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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).

In Estonia, privacy notices must be in the Estonian 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. 

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

In Estonia data controllers in certain sectors may be required to inform sectoral regulators of any breach (for example, financial services firms may be required to inform the Financial Supervision regulator).

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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.

In Estonia, Data Protection Inspectorate has the right to approve binding corporate rules.

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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).

The legal system of Estonia does not allow for administrative fines as set out in the GDPR (as envisaged in recital 151 of the GDPR). Estonia’s current legal system allows a maximum penalty of EUR 32,000 under the misdemeanour procedure. The Personal Data Protection Act provides that the Data Protection Inspectorate shall have the authority to impose the fines in the framework of a misdemeanour procedure.

The current legal system also allows officials of the Data Protection Inspectorate to issue precepts and impose penalty payments up to a maximum amount of EUR 9,600 upon failure to comply with the precept.

Currently, the Amendment Act of the Penal Code and other related laws are undergoing legislative proceedings in the Parliament. The amendments to the Penal Code increase the maximum penalty of fines to up to EUR 20 000 000 or 15% of the turnover of a legal person; the passing this legislative act is therefore necessary for the enforcement of the fines as set out in the GDPR .

Imprisonment

Pursuant to the current Estonian Penal Code, the following offences are misdemeanours and not punishable by imprisonment: (i) the disclosure of personal data obtained in the course of professional activities by a person who is required by law not to disclose such information; and (ii) the illegal disclosure of, or provision of illegal access to, sensitive personal data.

Pursuant to the current Estonian Penal Code, the illegal disclosure of, or provision of illegal access to, sensitive personal data, if committed for the purpose of personal gain or if significant damage was caused thereby to another person, is punishable by up to one year’s imprisonment.

Pursuant to the current Estonian Penal Code, violation of the confidentiality of messages is punishable by up to one year's imprisonment and the illegal use of another person's identity is punishable by up to three years’ 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

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

The Data Protection Inspectorate’s annual report of 2015 shows that they received a total of 446 complaints, challenges and misdemeanour notices in 2015. 35 inspections were conducted on location and 77 precepts were issued. 28 of these precepts were issued for failing to register the processing of personal data with the Data Protection Inspectorate. A total of 16 misdemeanour procedures were completed. Penalty payments and fines were applied on 15 occasions.

The Data Protection Inspectorate’s annual report of 2016 shows that the Data Protection Inspectorate received a total of 390 complaints, challenges and misdemeanour notices in 2016. 33 inspections were conducted on location and 59 precepts were issued. 26 of these precepts were issued for failing to register the processing of personal data with the Inspectorate. A total of 16 misdemeanour procedures were completed. Penalty payments and fines were applied on 16 occasions.

In relation to the highest penalty levied to date, the Data Protection Inspectorate does not have any statistics. However, the imposition of penalty payments and fines is rather rare (although it has become more widespread) and in practice the Data Protection Inspectorate usually only takes such measures if a data controller violates the law and does not bring its activities into compliance even after a precept or a warning has been issued by the Inspectorate. The Estonian Data Protection Inspectorate has stated that it has never imposed the maximum penalty during its current practice.

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

The Electronic Communications Act (“ECA”) transposed Article 13 of the Privacy and Electronic Communications Directive into Estonian law. However, some aspects of the marketing methods detailed below are regulated by the Information Society Services Act (Infoühiskonna teenuse seadus) and the Law of Obligations Act (Võlaõigusseadus).

In July 2010, amendments to the ECA and the Information Society Services Act entered into force which transferred most of the regulation regarding direct marketing into the ECA and addressed the principal shortcomings of the old rules. Under the new rules, direct marketing is regulated where it involves the use of “electronic contact data” for direct marketing purposes. Electronic contact data is defined as data which enables transmission of information to a person via an electronic network, such as fax, e-mail, SMS or MMS.

The ECA was amended on 22 February 2011 to implement the amendments to the Privacy and Electronic Communications Directive.

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Cookies

Conditions for use of cookies

Currently, it is only necessary to inform users of the use of cookies and offer them the right to refuse their use. This requirement arises indirectly from a general data protection provision of the ECA included therein already since the adoption of the ECA in 2004 and is not the result of implementation of the cookie provision as provided by the Privacy and Electronic Communications Directive. However, the existing general provision of the ECA is interpreted in accordance with the aforementioned directives.

The Estonian Government prepared a draft act in June 2014 including provisions on the use of cookies. These provisions were later rejected as they needed more analysis. Nevertheless, it is likely that specific regulation on the use of cookies will soon be implemented into Estonian law.

Regulatory guidance on the use of cookies

There is no regulatory guidance on the use of cookies. Furthermore, although the Data Protection Inspectorate has published numerous data protection related guidelines and written opinions on their website, none of these discuss the use of cookies.

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Marketing by E-mail

Conditions for direct marketing by e-mail to individual subscribers

Pursuant to the ECA, the use of electronic contact data for the purpose of direct marketing to a user (who is a natural person) via an electronic communications service is allowed only if the person has given his prior consent. Such consent is subject to the same requirements as stipulated for the general data processing consent in the Data Protection Act. Under the ECA, the burden of proof relating to provision of consent is placed upon the person on behalf of whom the direct marketing is performed.

Conditions for direct marketing by e-mail to corporate subscribers

The ECA does not require consent for the use of electronic contact data for the purpose of direct marketing to a user (who is a legal person) via an electronic communications service.

Exemptions and other issues

It is permitted to send an e-mail for the purposes of direct marketing if the similar products and services exemption applies (save that the right to object must be available using an electronic communications network). For this exemption to apply the recipient’s details only need to have been collected in connection with the sale on negotiation for sale of products and services. There is no need for an actual contract to have been formed.

Direct marketing e-mails are also prohibited if: (i) the identity of the sender is disguised or concealed; or (ii) an electronic opt-out address is not provided. Certain additional restrictions apply depending on the contents of the email (e.g. if the email relates to lotteries or promotional offers).

The sender 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)

The direct marketing rules in the ECA do not apply to multi-party telephone calls taking place in real-time. Such direct marketing is regulated by the Law of Obligations Act. Communicating offers directly to an individual subscriber by telephone is permitted unless the individual subscriber has expressly forbidden such communication.

Direct marketing to a telephone answering machine of individual subscribers falls under the scope of the ECA and is allowed on the same conditions as direct marketing by e-mail to individual subscribers, described above.

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

Estonian law does not expressly regulate direct marketing by multi-party real-time telephone calls to corporate subscribers. Therefore, the restrictions above do not apply in the case of direct marketing to corporate subscribers in such a manner.

Direct marketing to a telephone answering machine of corporate subscribers falls under the scope of the ECA and is allowed on the same conditions as direct marketing by e-mail to corporate subscribers, described above.

Exemptions and other issues

None.

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