Data Protected - Lithuania

Contributed by Valiūnas ir partneriai Ellex 

Last updated October 2018

General | Data Protection Laws

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

ePrivacy | Marketing and cookies

National Legislation
Cookies
Marketing by E-mail
Marketing by Telephone

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General | Data Protection Laws

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National Legislation

General data protection laws

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

The Law on Legal Protection of Personal Data of the Republic of Lithuania (the “Law”) which was amended on 16 July 2018 to implement the requirements of the GDPR.

Entry into force

The GDPR came into force on 25 May 2018.

The Law came into force on 16 July 2018. 

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National Supervisory Authority

Details of the competent national supervisory authority

The State Data Protection Inspectorate (the “Inspectorate”)
A. Juozapavičiaus g. 6

LT-09310 Vilnius
Lithuania

www.ada.lt

The Inspectorate will represent Lithuania on 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 Law follows GDPR requirements closely, it sets forth specific rules regarding: (i) the processing of personal identification numbers; (ii) data processing for the journalistic purposes, (iii) processing for the purposes of academic, artistic or literary expression; and (iv) certification bodies services.

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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.

The Inspectorate has also determined that the transfer of personal data from one data controller to another data controller must be made under a data transfer agreement. The data transfer agreement must be a binding contract and must include provisions on: (i) purpose; (ii) scope, i.e. listing the personal data transferred; (iii) legal basis, i.e. the statutory provision enabling the transfer; and (iv) the procedure of the data transfer.

This was upheld by the Lithuanian Supreme Administrative Court in case No. eA-831-261/2015 (3 November 2015). The requirement in the Law that the purposes of the data transfer be included in the data transfer agreement is imperative and cannot be ignored even in cases where the data processing and transferring is legitimate. 

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.

The Law sets forth that in relation to online services a child can provide a valid consent at the age of 14 years old .

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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.

The Law does not specify additional conditions for the processing of sensitive personal data.

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.

The Law prohibits processing employees’ or candidates’ data related to criminal convictions or offences, unless such personal data are necessary to verify if a person meets the legal requirements for a job.

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

Consent to process sensitive personal data must be explicit. The general restrictions on consent, set out above, will also apply. This suggests a degree of formality, such as ticking a box containing the express words “I consent”. It is unlikely explicit consent could be obtained through a course of conduct.

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Data Protection Officers

When must a data protection officer be appointed?

Both controllers and processors must appoint a data protection officer if: (i) they are a public authority; (ii) their core activities consist of regular and systematic monitoring of data subjects on a large scale; or (iii) their core activities consist of processing sensitive personal data on a large scale (including processing information about criminal offences).

The Law does not specify any additional requirements to appoint a data protection officer.

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 Lithuania, the Inspectorate has the power to draw up a list of “high processing” but has not done so yet.

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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 Lithuania, there is no obligation to provide this information in Lithuanian, 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 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

The Law does not specify any additional requirements for notice of breach. However, the Inspectorate will issue an instruction on personal data breach notices. The Inspectorate has issued a recommended data breach notification form. The data breach notifications can be submitted online using the website of the Inspectorate.

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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.

According to the Law, the Inspectorate is in charge of issuing the approval to transfer personal data to third countries or international organisations. The approval shall be issued no later than within 20 working days (in certain cases – 30 working days) after the Inspectorate receives all necessary documents and information for issuing the approval. The Inspectorate has issued the recommended request for data transfer authorization form.

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.

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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 Law provisions state that the Head of the Inspectorate or the Inspector of Journalist Ethics, or their representative have a right to impose a fine for breaching the GDPR or the Law.

Imprisonment

The criminal code of Lithuania sets forth that it is a criminal offence to unlawfully: (i) collect information about the private life of a person; and (ii) disclose or use information about the private life of a person. These offences may be punishable by imprisonment of up to three years.

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

In 2017, the Inspectorate carried out 91 preventive investigations; investigated 490 complaints of data subjects; issued 250 mandatory orders; and adopted 64 statements on administrative offences. Most of the violations related to direct marketing, video surveillance, processing of data obtained from state registers, personal data processing on the internet and processing of debtors’ personal data.

In 2018, the Inspectorate issued recommendations and guidelines on various topics in preparation of the GDPR, for example: (i) extensive guidelines on the general requirements of the GDPR for small and medium sized business; (ii) guidelines on the application of the GDPR to the processing of personal data of the members of the legal person’s management bodies; (iii) guidelines on the notification about video surveillance by appropriate signage; and (iv) exemplary rules for the implementation of the rights of the data subject.

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

The Law on Electronic Communications (“LOEC”) fully implemented the Privacy and Electronic Communications Directive.

The LOEC was amended on 1 August 2011 to implement the amendments to the Privacy and Electronic Communications Directive.

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Cookies

Conditions for use of cookies

Under the LOEC, the use and storage of cookies requires that clear and comprehensive information is provided to data subjects and the consent of the website user is obtained. Consent is not required for cookies that are used for the sole purpose of carrying out the transmission of a communication over an electronic communications network or that are strictly necessary for the provision of a service requested by the user.

Regulatory guidance on the use of cookies

The Inspectorate has published recommendations about the method of consent to the use for cookies. The guidance confirmed that consent can be obtained through pop ups, banners or website registration while relevant settings contained within current browsers are not likely to form a valid consent. According to the guidance, the users must be given a genuine opportunity not to consent. There is no clear guidance on the possibility to obtain an implied consent.

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Marketing by E-mail

Conditions for direct marketing by e-mail to individual subscribers

The LOEC prohibits the use of e-mail for advertising purposes without prior and free consent of the addressees. The LOEC is designed to be implemented along with the Law, which provides that personal data may be processed for the purpose of direct marketing if this purpose is expressly declared during the collection of the data and the data subject has given his express consent.

The practice of the Inspectorate suggests that the right of consent must be clearly and separately explained to the data subject, and silence (no response) shall not be considered as consent.

Conditions for direct marketing by e-mail to corporate subscribers

The LOEC prohibits the use of e-mail for advertising purposes without prior and free consent of the addressees. The LOEC is designed to be implemented along with the Law, which provides that personal data may be processed for the purpose of direct marketing if this purpose is expressly declared during the collection of the data and the data subject has given his express consent. The practice of the Inspectorate, suggests that the right of consent must be clearly and separately explained to the data subject, and silence (no response) shall not be considered as consent.

Exemptions and other issues

The similar products and services exemption is available under the LOEC. Additionally, the LOEC expressly prohibits use of e-mail for advertising purposes when the sender’s identity is disguised or a valid e-mail address for the addressee to cancel the sending of such information is not provided.

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)

Generally, direct marketing in any form (including direct marketing by telephone) is not allowed without the prior consent of the individuals who are targeted by such direct marketing. The Inspectorate has publicly expressed its opinion that calls to randomly chosen individual telephone subscribers, and calls requesting the consent of the individual, are considered direct marketing.

In 2016, the Inspectorate issued a recommendation regarding the validity of providing telephone number of third party for direct marketing purposes. In practice, there are cases when the organisations ask individuals to provide the telephone numbers of third parties (such as friends, acquaintances, or the like) for direct marketing purposes.  The Inspectorate considers that collecting telephone numbers in this manner is unlawful.

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

As long as no personal data is involved in the direct marketing (for example, where direct marketing is made to the phone numbers of corporate subscribers), it is not subject to the requirements of the Law, however, the Law on Advertising stipulates that advertising by telephone is allowed only with consumer’s prior consent.

Exemptions and other issues

The similar products and services exemption is available if marketed to existing customers.

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