Data Protected - Portugal

Last updated October 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

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National Legislation
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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”).

Law no. 58/2019 of 8 August 2019, which adapts Portuguese law to the GDPR (“Portuguese Data Protection Law”). The Portuguese Data Protection Law revoked the previous data protection law, Law no. 67/98, of 26 October 1998.

Following the publication of the Portuguese Data Protection Law, the CNPD issued Resolution no. 2019/494 in September 2019 (“CNPD Resolution no. 2019/494”). This states that the CNPD it will disregard the following parts of the Portuguese Data Protection Law because they do not comply with the GDPR: (i) aspects of the territorial scope of the Portuguese Data Protection Law; (ii) exemptions from data subjects rights where a duty of confidence arises; (iii) processing of personal data by public entities for purposes other than those which justified the data collection; (iv) restrictions on the validity of consent provided by employees; (v) general conditions for imposing administrative fines; (vi) tying of consent to contract performance; and (vii) the annulling of existing authorisations.

In addition, Law no. 59/2019 (“Law 59/2019”) of 8 August 2019 on the protection of natural persons regarding processing of personal data connected with criminal offences or the execution of criminal penalties, and on the free movement of such data, implements the Law Enforcement Directive

Entry into force

The GDPR applies from 25 May 2018.

The Portuguese Data Protection Law and the Law 59/2019 are applicable from 9 August 2019. 

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National Supervisory Authority

Details of the competent national supervisory authority

Comissão Nacional de Protecção de Dados (the “CNPD”)
Rua de São Bento, no.
148, 3rd floor
1200-821 Lisbon
Portugal

www.cnpd.pt

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.

The Portuguese Data Protection Law clarifies how these extra-territorial provisions apply. In particular, the Portuguese Data Protection Law applies to processing carried out outside Portugal where: (a) that processing is part of an establishment situated in Portugal; (b) it affect data subjects that are in the Portuguese territory and the offering or monitoring tests in the GDPR apply; or (c) it affects personal data on Portuguese residents held by Portuguese consular posts abroad.

However, the CNPD considers that this extension may not be compliant with EU law, see CNPD Resolution no. 2019/494. 

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 Portuguese Data Protection Law does not apply to personal data collected and held under the responsibility of the Information System of the Portuguese Republic (which relates to national security).

Further, the Portuguese Data Protection Law contains a number of additional national specificities, including, for instance, for employment, archiving purposes in the public interest, scientific or historical research purposes or statistical purposes and secrecy obligations. 

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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.

There are specific rules in the Portuguese Data Protection Law on the processing of personal data about employees, particularly in relation to CCTV and biometrics. There are also general restrictions on the use of CCTV systems, which may require authorisation by the CNPD for the purposes of recording audio. 

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).

The Portuguese Data Protection Law clarifies that the consent provided by the employees shall not constitute a legitimate legal basis for the processing of his/her personal data if the processing results in a legal or economic advantage for the employee, unless otherwise specified by law. However, the CNPD considers that this provision does not comply with EU law, see CNPD Resolution no. 2019/494. 

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.

Under the Portuguese Data Protection Law, child’s consent in relation to information society services is lawful where the child is at least 13 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.

The Portuguese Data Protection Law is also applicable to the processing of sensitive personal data of deceased persons. 

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 Portuguese Data Protection Law provides further detail about the processing conditions applicable to health and genetic data.

For instance, access to data processed under condition (h)(healthcare) and (i)(public health) above may only be made by electronic means and further disclosure or transmission is prohibited. In addition, all persons who have access to health and genetic data are subject to a duty of confidentiality, that, in addition to his/her statutory duties, if foreseen by the Portuguese Data Protection Law. 

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.

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).

There are no mandatory appointment rules under national law. 

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).

Under the Portuguese Data Protection Law, in addition to the duties set out in the GDPR, the data protection officers shall: (i) ensure that periodic and/or unplanned audits are carried out; (ii) alert users to the importance of timely detection of security incidents and the need to inform the security officer immediately whenever malicious code is detected; and (iii) manage relations with data subjects regarding matters covered by the GDPR and national data protection legislation. 

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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 Portugal, the CNPD has drawn up a list of “high risk processing” activities, available here

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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).

There is no explicit obligation to provide this information in Portuguese. However, there is a risk that information in English may not be considered intelligible.

Further, under the Portuguese Data Protection Law, this right does not apply where the law imposes on the controller a duty of secrecy that justifies this information not to be provided to the data subject. However, the CNPD considers that this exemption does not comply with EU law, see CNPD Resolution no. 2019/494. 

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. 

Under the Portuguese Data Protection Law, this right does not apply where the law imposes on the controller a duty of secrecy that justifies this information not to be provided to the data subject. However, the CNPD considers that this exemption does not comply with EU law, see CNPD Resolution no. 2019/494. 

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

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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 Portugal, the practice of the CNPD is to accept 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).

Under the Portuguese Data Protection Law, the infringements foreseen in the GDPR that are subject to administrative fines up to 4% of annual worldwide turnover or €20m, whichever is the greater, are classified as very serious. Furthermore, it establishes minimum amounts for the fines applicable to the very serious breaches depending on the size of the companies, as follows: (i) between €5,000 and €20,000,000 or up to 4 % of the total worldwide annual turnover of the preceding financial year, whichever is higher, in case of a large company; (ii) between €2,000 and €20,000,000 or up to 4 % of the total worldwide annual turnover of the preceding financial year, whichever is higher, in case of small and medium-sized companies; and (iii) between €1,000 and €500,000 in case of natural persons.

The infringements foreseen in the GDPR that are subject to administrative fines up to 2% of annual worldwide turnover or €10m, whichever is the greater, are classified as serious, under the Portuguese Data Protection Law. Furthermore, it establishes minimum amounts for the fines applicable to the serious breaches depending on the size of the company, as follows: (i) between €2,500 and €10,000,000 or up to 2 % of the total worldwide annual turnover of the preceding financial year, whichever is higher, in case of a large company; (ii) between €1,000 and €10,000,000 or up to 2 % of the total worldwide annual turnover of the preceding financial year, whichever is higher, in case of small and medium-sized companies; and (iii) between €500 and €250,000 in case of natural persons.

However, the CNPD considers that GDPR does not distinguishes the negligent or wilful nature of the conduct, nor the size of the companies, or the legal nature of the agents, thus it decided not to apply the rules set out above, see CNPD Resolution no. 2019/494.

Imprisonment

The Portuguese Data Protection Law makes the following a criminal offence: (i) use of the personal data in a manner incompatible with the purpose of the collection; (ii) improper access to personal data; (iii) unauthorised disclosure of personal data; (iv) violation or destruction of personal data; (v) insertion of false data; (vi) breach of the duty of confidentiality; (vii) failure to comply with instructions from the CNPD.

These offences are punishable with a fine or imprisonment of up to four 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 Portugal, the number of investigations and prosecutions carried out by CNPD is not officially disclosed. Thus, the information available is essentially provided through the media.  

Under the Portuguese Data Protection Law no fines have yet been imposed as it only entered into force on 9 August 2019. However, and according to publicly available information, between 25 May 2018 and the end of the first quarter of 2019, the CNPD imposed four fines for violations of the GDPR.

On 17 July 2018, the CNPD imposed a fine of € 400,000 on a public hospital due to three violations of the GDPR. The breaches identified were connected to (i) the indiscriminate access by an excessive number of users to personal data of the hospital’s patients; (ii) failure to apply technical and organizational measures to prevent unlawful access to personal data and to ensure an adequate level of security; and (iii) the inability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services.

The other three fines were applied to private companies. The identity of such companies and the breaches were not disclosed. However, the CNPD has revealed that the issues often concerned failure to comply with data subjects' rights by these entities. For example, one of the cases was for breach of the right of access to personal data.

The CNPD also disclosed that during the first nine months of execution of the GDPR, 768 investigation processes were opened, which were originated in complaints, in participations made by authorities and in the initiative of CNPD itself. The CNPD has stated that there are a number of ongoing investigations that could result in the imposition of a fine. 

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

Article 13 of the Privacy and Electronic Communications Directive has been implemented by Decree-Law no. 7/2004 of 7 January 2004 (the “ECA”). Currently, the provisions regarding unsolicited communications and direct marketing are laid down by Law no. 41/2004, as amended by Law no. 46/2012 (“Law 41/2004”). 

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Cookies

Conditions for use of cookies

According to Law 46/2012, the use of cookies is only allowed on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information, in accordance with the DPA, inter alia, about the purposes of the processing. This shall not prevent any technical storage or access if it is for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order for the provider of an information society service, explicitly requested by the subscriber or user, to provide the service.

Regulatory guidance on the use of cookies

None.

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Marketing by E-mail

Conditions for direct marketing by e-mail to individual subscribers

Direct marketing by e-mail to individual subscribers is authorised provided the addressee gives its prior consent.

Conditions for direct marketing by e-mail to corporate subscribers

Direct marketing by e-mail to corporate subscribers is permitted without their prior consent but they must be given the right to object to this marketing at any time.

Exemptions and other issues

It is permitted to send e-mail for the purposes of direct marketing if the similar products and services exemption applies. Law 41/2004 also prohibits direct marketing e-mails from being sent if: (i) the identity of the sender is disguised or concealed; (ii) an opt-out address is not provided; or (iii) the e-mail encourages recipients to visit websites that do not clearly identify the promotional nature of the message, the advertiser; and promotional offers, such as discounts, premiums and gift promotional competitions or games, and their respective terms and conditions

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Marketing by Telephone

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

Direct marketing by telephone to individual subscribers is permitted without their prior consent but they must be given the right to object to this marketing at any time.

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

Direct marketing by telephone to corporate subscribers is permitted without their prior consent but they must be given the right to object to this marketing at any time.

Exemptions and other issues

None.

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