Data Protected - Romania

Contributed by Kinstellar

Last updated August 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”).

Law no. 190/2018 laying down certain measures for implementing GDPR has been promulgated by the Romanian President and is pending publication in the Official Gazette of Romania for entry into force (the “Data Protection Law”).

The Law no. 129/2018 for amending and supplementing Law no. 102/2005 regarding the establishment, organization and functioning of the National Supervisory Authority for Personal Data Processing and for repealing Law no. 677/2001 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data has entered into force (the “DPA Authority Law” and, together with the Data Protection Law, the “Laws”).

Entry into force

The GDPR applies since 25 May 2018.

The Data Protection Law will apply five days after its publication in the Official Gazette.  

The DPA Authority Law applies since 24 June 2018.

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National Supervisory Authority

Details of the competent national supervisory authority

The DPA Authority Law provides that the National Supervisory Authority for Personal Data Processing will continue to act as the supervisory authority in Romania.

The National Supervisory Authority for Personal Data Processing (the “Supervisory Authority”)

28-30 Magheru Blvd.
Bucharest, Sector 1
Romania

www.dataprotection.ro

The National Supervisory Authority for Personal Data Processing will represent Romania 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. 

The Laws do not provide any further details in this respect.

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.

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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.

In Romania, specific obligations are mentioned for national identifiers. Thus, this concept is defined under the Data Protection Law. The national identifier is defined as “that specific number which has general application and identifies a natural person in certain record systems”. Expressly mentioned examples include: (i) natural identification numbers, (ii) passport numbers, (iii) driving licence numbers and (iv) national health insurance numbers.

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).

The Data Protection Law states that processing data through IT or video surveillance systems in case of labour relations is allowed only under the following cumulative conditions: 

  • Legitimate interest: the legitimate interests of the employer in relation to highly-important activities prevail over the employees’ interests, rights and freedoms;
  • Prior information: the employer has fully and expressly informed its employees about the use of monitoring systems prior to the commencement of data processing;
  • Role of trade unions: the employer has consulted the trade union(s) or the employees’ representatives about the introduction of monitoring systems prior to the commencement of data processing;
  • Risk assessment: less intrusive means were used and were proven not to be efficient; and
  • Retention period: if there are no other cases expressly provided by law or other duly justified cases, personal data of the employees shall be retained only for a period proportionate with the processing purpose and in any case for no more than 30 days.

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 Laws do not include any specific clauses in relation to processing the personal data of children.

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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.

In addition, the  Data Protection Law states that the processing of genetic data, biometric data and data concerning health for automated decision-making or profiling is permitted if the individual expressly consents to such data processing or if the processing is performed on the basis of a legal provision. Specific exemptions are provided for processing performed by public authorities in certain specific situations.

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 Laws do not include any additional requirements in this respect.

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 Laws do not include any further details in this respect.

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. 

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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 Romania, the Laws do not provide any further details in this respect.

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 Laws do not include any further details in this respect.

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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 Romania, the Laws do not include any further details in this respect.

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Enforcement

Fines

The GDPR is intended to make data protection a boardroom issue. It introduces an antitrust-type sanction regime with fines of up to 4% of annual worldwide turnover or €20m, whichever is the greater. These fines apply to breaches of many of the provisions of the GDPR, including failure to comply with the six general data quality principles or carrying out processing without satisfying a condition for processing personal data.

A limited number of breaches fall into a lower tier and so are subject to fines of up to 2% of annual worldwide turnover or €10m, whichever is the greater. Failing to notify a personal data breach or failing to put an adequate contract in place with a processor fall into this lower tier.

The Article 29 Working Party has issued Guidelines on administrative fines (WP253).

Imprisonment

The Laws do not include any further details in this respect.

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. 

The DPA Authority Law makes it clear that the Supervisory Authority will have the power to access equipment and storage devices and take statements from any relevant individual.

Under the DPA Authority Law, the Supervisory Authority must respond within 30 days from the date a data subject files a complaint. The Supervisory Authority must also provide information to the data subject on the progress of analysing the complaint within three months from the filing of the complaint.

Practice

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

The statistics for 2016 indicate that the Supervisory Authority received a total of 6,930 notifications. As regards the number of approvals for data transfers to countries outside the EEA, the latest information available relates to 2016, when 37 such data transfers were approved by the Supervisory Authority, out of 245 requests filed in this respect (based on Model clauses and based on binding corporate rules).

The total amount of the fines for 2016 was RON 1,008,500 (approx. €219,000), an increase of over 48% compared with 2015.

According to its annual report for 2016, the Supervisory Authority carried out on its own initiative 140 investigations both in the private sector and in the public sector. As regards sanctions applied during these investigations, the authority imposed administrative penalties that consist of 72 fines and 62 warnings.

The Supervisory Authority received 2,202 petitions (of which 2,014 were complaints and 188 reclamations) resulting in a total of 632 investigations. The number of complaints and reclamations received by the authority has significantly increased by reference to previous years.

Following the investigations carried out by the Authority some deficiencies were found, as follows: (i) failure to comply with the obligation to inform data subjects; (ii) failure to comply with the confidentiality obligation and with the obligation to apply security measures; (iii) failure to notify personal data processing by way of video surveillance; (iv) failure to notify personal data processing by way of processing biometric data; (v) the processing of the personal identification number or of any other generally applicable identification data; and (vi) the use of cookies.

During 2016, the Supervisory Authority also received 515 requests for guidance to assist with the interpretation of the provisions of the current law for public authorities and private persons, as well as continuing its information campaigns around the country.

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

Law no. 506/2004 of 17 November 2004 regarding the processing of personal data and the protection of privacy in the electronic communications sector (the “PECR”), published in the Official Gazette No. 1101 of 25 November 2004 implemented Article 13 of the Privacy and Electronic Communications Directive. The PECR came into force on 28 November 2004 and has been amended in 2012 in order to implement the amendments to the Privacy and Electronic Communications Directive.

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Cookies

Conditions for use of cookies

Under the PECR, storing cookies or gaining access to such data is permitted subject to obtaining the prior consent of the data subject that has been informed of the processing activity and of its purpose in a complete, accessible and clear manner. In case of third party access to cookies, additional information obligations have to be observed prior to obtaining the consent, such as informing the data subject of: (i) the general purpose of the processing activities performed by third parties; and (ii) the possibility of using internet browser settings or other similar technologies to erase the stored personal data or to refuse third party access to the above information.

An internet browser setting or other similar technology made by the data subject to give consent to a controller for using cookies is sufficient. A controller is exempted from the obligation to obtain prior consent for using cookies when the processing: (i) is exclusively for the purpose of transmitting a communication through an electronic communication network; and (ii) is strictly necessary for providing an information society service expressly requested by the respective data subject.

Regulatory guidance on the use of cookies

There is no regulatory guidance for the use of cookies.

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Marketing by E-mail

Conditions for direct marketing by e-mail to individual subscribers

It is not permitted to transmit unsolicited direct marketing e-mails unless the recipient has expressly given his prior consent. The precise mechanism by which consent is obtained is not set out in the PECR.

Conditions for direct marketing by e-mail to corporate subscribers

It is not permitted to transmit unsolicited direct marketing e-mails unless the recipient has expressly given his prior consent. The precise mechanism by which consent is obtained is not set out in the PECR.

Exemptions and other issues

It is permitted to send e-mail for the purposes of direct marketing where the similar products and services exemption applies. It is always forbidden to send e-mail for purposes of direct marketing where: (i) the identity of the sender is disguised or concealed; and (ii) there is no valid address to which the recipient may send a request that such communications cease.

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)

As there are no specific provisions regulating live marketing by telephone, it could be said that there are no restrictions regarding direct marketing by telephone, since the consent for such marketing can be obtained directly from the data subject at the time of the call and not necessarily through a prior procedure.

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

As there are no specific provisions regulating live marketing by telephone, it could be said that there are no restrictions regarding direct marketing by telephone, since the consent for such marketing can be obtained directly from the data subject at the time of the call and not necessarily through a prior procedure.

Exemptions and other issues

No exemptions apply.

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