Data Protected - Estonia
Last updated August 2022
General | Data Protection Laws
National Supervisory Authority
Scope of Application
Sensitive Personal Data
Data Protection Officers
Accountability and Privacy Impact Assessments
Rights of Data Subjects
Transfer of Personal Data to Third Countries
ePrivacy | Marketing and cookies
General | Data Protection Laws
General data protection laws
The General Data Protection Regulation (EU) (2016/679) (“GDPR”).
The “Personal Data Protection Act” helps implement the GDPR into Estonian law.
Entry into force
The GDPR has applied since 25 May 2018.
The Personal Data Protection Act entered into force on 15 January 2019.
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
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. However, controllers and processors must keep a record of their processing and make it available to their supervisory authority on request (subject to limited exemptions).
Exemptions to notification
Scope of Application
What is the territorial scope of application?
The GDPR applies to the processing of personal data in the context of the establishment of a controller or processor in the EU.
It also contains express extra-territorial provisions and will apply to controllers or processors based outside the EU that: (i) offer goods or services to individuals in the EU; or (ii) monitor individuals within the EU. Controllers and processors caught by these provisions will need to appoint a representative in the EU, subject to certain limited exemptions.
The European Data Protection Board has issued Guidelines on the territorial scope of the GDPR (3/2018).
Is there a concept of a controller and processor?
Yes. The GDPR contains the concept of a controller, who determines the purpose and means of processing, and a processor, who just processes personal data on behalf of the controller.
The European Data Protection Board has issued Guidelines on the concepts of controller and processor in the GDPR (7/2020).
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.
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 third party's legitimate interests, except where overridden by the interests or fundamental rights and freedoms 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 European Data Protection Board has issued Guidelines on consent (5/2020).
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.
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.
Estonian Employment Contracts Act does not provide any special rules when processing personal data about employees, other than Estonian Employment Contracts Act § 41 provides that an employee has the right to access the information gathered about him or her and demand that incorrect information be removed or corrected and that an employer shall ensure the processing of personal data of an employee in accordance with legislation.
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 decision in OT (C-184/20) might suggest this should be interpreted broadly to include publication of information that indirectly discloses these characteristics.
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.
No additional rules to note.
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.
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 principal punishment being less than EUR 200 and with no supplementary 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.
Data Protection Officers
When must a data protection officer be appointed?
Both controllers and processors must appoint a data protection officer if: (i) they are a public authority; (ii) their core activities consist of regular and systematic monitoring of data subjects on a large scale; or (iii) their core activities consist of processing special category personal data on a large scale (including processing information about criminal offences).
Data protection officers must also be appointed where required by national law. The 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. Details of the data protection officer must be communicated to the relevant supervisory authority.
The Article 29 Working Party has issued Guidelines on Data Protection Officers (WP243).
Accountability and Privacy Impact Assessments
Is there a general accountability obligation?
The GDPR adds a new general accountability obligation under which you must not only comply with these new rules, but also be able to demonstrate you comply with them. This means ensuring suitable policies are in place supported by audit and training.
Are privacy impact assessments mandatory?
A privacy impact assessment must be conducted where “high risk” processing is carried out. This includes: (a) systematic and extensive profiling that produces legal effects or significantly affects individuals; (b) processing on a large scale either special categories of personal data or personal data relating to criminal convictions and offences; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV). Where the assessment indicates the risk cannot be mitigated, the controller must consult the relevant supervisory authority.
The Article 29 Working Party has subsequently issued Guidelines on Data Protection Impact Assessments (WP 248). It suggests there are nine criteria to consider to determine whether to conduct a privacy impact assessment, and that an assessment should be made if two or more of those criteria are met. This is arguably wider than the criteria set out in the paragraph above.
In 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.
Rights of Data Subjects
A controller must provide data subjects with a privacy notice setting out how the individual’s personal data will be processed. The privacy notice must contain the enhanced transparency information.
The Article 29 Working Party has issued Guidelines on Transparency (WP260).
In 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 right to obtain a copy of personal data should not adversely affect the rights and freedoms of others. The response must be provided within a month, though this can be extended by two months if the request is complex.
The European Data Protection Board has issued draft Guidelines on rights of access (1/2022).
Rights to data portability
Data subjects will also have a right to data portability where the condition for processing personal data is consent or the performance of a contract. It entitles individuals to obtain any personal data they have “provided” to the controller in a machine-readable format. Individuals can also ask for the data to be transferred directly from one controller to another. There is no right to charge fees for this service.
The Article 29 Working Party has issued Guidelines on data portability (WP242).
Right to be forgotten
A data subject can ask that their data be deleted in certain circumstances. However, those circumstances are relatively limited, for example where the processing is based on consent, that consent is withdrawn and there are no other grounds for processing. Even where the right does arise, there are range of exemptions, for example where there is a legal obligation to retain the data.
The European Data Protection Board has issued Guidelines on the criteria of the Right to be Forgotten in the search engines cases under the GDPR (part 1) (5/2019).
Objection to direct marketing
A data subject can object to their personal data being processed for direct marketing purposes at any time. This includes the processing of their personal data for profiling purposes.
The GDPR contains a range of other rights, including a right to have inaccurate data corrected. There is also a right to object to processing being carried out in the performance of a public task or under the legitimate interests condition.
Finally, there are controls on taking decisions based solely on automated decision making that produce legal effects or similarly significantly affects the data subject. The Article 29 Working Party has issued Guidelines on Automated Decision Making and Profiling (WP251).
Security requirements in order to protect personal data
The GDPR contains a general obligation to implement appropriate technical and organisational measures to protect personal data.
In addition, controllers and processors must ensure, where appropriate: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of its information technology systems; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
Specific rules governing processing by third party agents (processors)
A controller must ensure that any processor it instructs will ensure adequate security for personal data and otherwise meet the requirements of the GDPR.
The controller must have written contracts with its processor containing the enhanced processor clauses.
Notice of breach laws
A personal data breach must be notified to the relevant supervisory authority unless it is unlikely to result in a risk to data subjects. The notification must, where feasible, be made within 72 hours. If the personal data breach is a high risk for data subjects, those data subjects must also be notified.
Specific notice of breach laws apply to the electronic communications sector under national laws implementing the Privacy and Electronic Communications Directive and to operators of essential services and digital service providers under national laws implementing the Network and Information Systems Directive.
The Article 29 Working Party has issued Guidelines on Personal Data Breach Notification (WP250) and the European Data Protection Board has issued Examples regarding Personal Data Breach Notification (1/2021).
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).
Transfer of Personal Data to Third Countries
Restrictions on transfers to third countries
The GDPR contains a restriction on transborder dataflows. This restriction does not apply if the transfer is to a whitelisted country.
Transfers can be made: (i) pursuant to a set of Standard Contractual Clauses; (ii) pursuant to binding corporate rules; (iii) to an importer who has signed up to an approved code or obtained an approved certification; or (iv) where otherwise approved by the relevant supervisory authority. However, following the decision in Schrems II (C-311/18) any transfer made on this basis must be subject to a transfer impact assessment of the laws of the relevant third country and supplemented by supplementary protections where necessary.
The European Data Protection Board has issued Recommendation on European Essential Guarantees for surveillance measures (2/2020) and a Recommendation on measures that supplement transfer tools (1/2020) to help conduct this transfer impact assessment. The European Commission has also issued an FAQ on the new Standard Contractual Clauses.
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 European Data Protection Board has issued Guidelines on derogations applicable to international transfers (2/2018). Finally, the European Data Protection Board has issued draft Guidelines on the interplay between Article 3 and international transfers (2/2018) to help identify when a transfer takes place.
Notification and approval of national regulator (including notification of use of Standard Contractual Clauses)
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 Standard Contractual Clauses (though it is possible some supervisory authorities may want to be notified of their use). In contrast, it will be necessary to get approval to rely on binding corporate rules, and the supervisory authority must be informed of transfers made using the minor transfers exemption.
Use of binding corporate rules
The GDPR places binding corporate rules on a statutory footing. It will be possible to obtain authorisation from one supervisory authority (subject to approval through the consistency mechanism) that will cover transfers from anywhere in the EU.
In Estonia, Data Protection Inspectorate has the right to approve binding corporate rules.
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 EDPB has published new draft Guidelines on the calculation of administrative fines (04/2022).
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 400,000 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.
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 .
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 enabling illegal access to: (i) special categories of personal data; (ii) data concerning the commission of an offence; (iii) identity of the victim of an offence before a public court hearing; (iv) decisions relating to the prosecution of an offence; or (v) termination of court proceedings in a criminal matter, if committed for the purpose of personal gain or if significant damage was caused 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.
Data subjects have a right to compensation in respect of material and non-material damage.
Regulators will have a range of other powers and sanctions at their disposal. This includes investigative powers, such as the ability to demand information from controllers and processors, and to carry out audits. They will also have corrective powers enabling them to issue warnings or reprimands, to enforce an individual’s rights and to issue a temporary or permanent ban on processing.
The most significant penalties issued by the Data Protection Inspectorate are set out below. Since the Estonian legal system does not allow for administrative fines as set out in the GDPR (see also s.151 of the GDPR), instead of fines, the Estonian Data Protection Inspectorate issues precepts with the warning that non-compliance with this will be subject to a non-compliance levy. Fines can be issued and have been imposed in case of misdemeanours:
- Three online pharmacies were given a precept to bring their activities into compliance with data protection regulations. If the pharmacies had failed to comply with the compliance-notice, they would have been issued a non-compliance levy €100,000 each for processing personal data without data subject consent. No fine or penalty payments were ultimately imposed as all pharmacies involved remedied their activities within the deadline provided by the Data Protection Inspectorate. The data subjects’ medical prescriptions were viewable to third parties in the e-pharmacy environment, provided the third party had the data subject’s personal identification code. The Data Protection Inspectorate emphasised that in spite of the importance of making it possible to buy prescription medicines on behalf of another, the companies needed to ensure that personal data processing for this person was consensual. Confirming that another person could access the data was not equivalent to voluntary consent of the prescription holder.
- In April 2020 an Estonian apartment association was given a precept to bring its activities into compliance with data protection regulations. If the association had failed to comply with the compliance notice, it would have been fined €500 for publishing photos of its members, without first obtaining their consent. As it complied before the deadline, no penalty payment was actually issued.
- A police officer was fined €48 in August 2020 for accessing personal data in a police database for private activities.
Other enforcement action: In Estonia, there is no current enforcement practice in relation to the GDPR (i.e. Data Protection Inspectorate has not published information concerning any imposed fines under the GDPR or Estonian Data Protection Act adopted on the basis of the GDPR). However, enforcement of the current law is instructive.
The Data Protection Inspectorate’s annual report of 2017 shows that the Data Protection Inspectorate received a total of 462 complaints, challenges and misdemeanour notices in 2017. Penalty payments and fines were applied on 4 occasions.
The Data Protection Inspectorate’s annual report of 2018 shows that the Data Protection Inspectorate received a total of 479 complaints, challenges and misdemeanour notices in 2018. Penalty payments and fines were applied on 9 occasions.
The Data Protection Inspectorate’s annual report of 2019 shows that the Data Protection Inspectorate received a total of 609 complaints, challenges and misdemeanour notices in 2019. Penalty payments and fines were applied on 5 occasions.
The Data Protection Inspectorate’s annual report of 2020 shows that the Data Protection Inspectorate received a total of 701 complaints, challenges and misdemeanour notices in 2020. Penalty payments and fines were applied on 12 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.
ePrivacy | Marketing and cookies
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.
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.
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