Data Protected - Slovakia

Contributed by Kinstellar

Last updated July 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”).

Act No. 18/2018 Coll. on the Protection of Personal Data (the “Act”) which implements the GDPR was adopted by the Slovak Parliament on 29 November 2017. It was published in the Collection of Laws on 30 January 2018. The Act entered into force on 25 May 2018.

The Decree of the Office for Personal Data Protection no. 158/2018 Coll. on Data Protection Impact Assessment Procedure (the “Decree“).

In addition, the draft of the Decree of the Office for Personal Data Protection on the certification criteria, certification procedures, content of the technical and security documentation and the conditions for the data protection audits, including requirements on professional qualities of data protection auditor, is currently in the preparatory stage.

Entry into force

The GDPR applies from 25 May 2018.

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National Supervisory Authority

Details of the competent national supervisory authority

The Office for Personal Data Protection of the Slovak Republic (Úrad na ochranu osobných údajov) (the “Office”)

Hraničná 12
820 07 Bratislava 27
Slovakia

www.dataprotection.gov.sk

The Office will represent Slovakia 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. 

There are no obligations to notify the Office of any processing under the Act.

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.

Under the Act, a controller may process personal data without a data subject’s consent, if the processing is necessary for the purposes of academic, artistic or literary expression, or if the processing is necessary for the purpose of informing the public by means of the mass media.

Under the Act, a data subject’s employer may provide or publish the personal data of an employee if it is required for the fulfilment of the job, service or administrative duties. This information includes the employee’s title/address, name, surname, job, service position, administrative position, personal / employee number of the data subject, department, place of work, telephone number, fax number, work e-mail address and identification data of the employer. Provision or publishing of personal data cannot violate the respect, dignity and safety of the data subject.

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Personal Data

What is personal data?

Personal data is information relating to an identified or identifiable natural person.

This is a broad term and includes a wide range of information. The GDPR expressly states it includes online identifiers such as IP addresses and cookie identifiers.

Is information about legal entities personal data?

No. However, information about sole traders and partnerships is likely to be personal data.

What are the rules for processing personal data?

All processing of personal data must comply with all six general data quality principles. Personal data must be: (a) processed fairly and lawfully; (b) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (c) adequate, relevant and not excessive; (d) accurate and, where necessary, up to date; (e) kept in an identifiable form for no longer than necessary; and (f) kept secure.

The processing of personal data must also satisfy at least one condition for processing personal data. These conditions are that the processing is: (a) carried out with the data subject’s consent; (b) necessary for the performance of a contract with the data subject; (c) necessary for compliance with a legal obligation; (d) necessary in order to protect the vital interests of the data subject; (e) necessary for the public interest or in the exercise of official authority; or (f) necessary for the controller’s or recipient’s legitimate interests, except where overridden by the interests of the data subject.

These rules are almost identical to the core requirements for processing personal data in the Data Protection Directive.

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

Obtaining consent will become much harder under the GDPR. 

To be valid, consent must be in clear and plain language and, where sought in writing, separate from other matters. Consent must be based on affirmative action so pre-ticked boxes are not acceptable. Consent might not be valid if: (i) there is any detriment to the data subject for refusing; (ii) there is an imbalance of power; (iii) consent for multiple purposes is bundled together; or (iv) the consent is a condition of entering into a contract. Finally, consent can be withdrawn at any time.

In practice, other processing conditions should be relied on where possible. Consent will only be an appropriate processing condition if the individual has a genuine choice over the matter, for example, whether to be sent marketing materials. 

The Article 29 Working Party has issued Guidelines on Consent (WP259).

Are there any special rules when processing personal data about children?

Consent from a child in relation to online services will only be valid if authorised by a parent. A child is someone under 16 years old, though Member States may reduce this age to 13.

In Slovakia the age at which a child can provide a valid consent remains at 16 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.

Under the Act, it is possible to process sensitive personal data where there is a special act or international treaty which is binding on the Slovak Republic.

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 Act does not set out any additional rules for processing information about criminal offences.

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. However, the Act does not impose any additional obligations 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. 

The Decree provides certain rules in relation to how controllers should carry out the Data Protection Impact Assessment. The Decree does not contain list of processing operations which are subject to the requirement for a data protection impact assessment as envisaged in the article 35 (4) of GDPR.

In Slovakia, the Office has the power to draw up a list of “high risk 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).

Under the Act, there is no explicit obligation to provide this information in Slovak but given that such information is to be provided in a comprehensible form and should be formulated in clear and simple terms, then if it is supposed to be comprehensible for the data subject, it should be in a language the data subject speaks.

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

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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 Slovakia, the national approach to binding corporate rules is described in the guidelines issued by the Office. New guidelines reflecting the GDPR are not available yet. There is no list of binding corporate rules approvals available.

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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

Under the Slovak Criminal Code as amended (the “Slovak Criminal Code”), a person is liable to a term of imprisonment of up to one year if, without lawful authority, they communicate, make accessible or disclose: (i) personal data of another person obtained in connection with the execution of public administration or with the exercise of constitutional rights of a citizen; or (ii) personal data of another person obtained in connection with the execution of his own profession, employment or function, and thus breaches his own obligation prescribed by a generally binding legal regulation.

The offence set out above is punishable by up to two years’ imprisonment in certain circumstances where there are aggravating factors.

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

According to the most recent Annual Report on Data Protection issued by the Office for 2015 and 2016, there were 510 personal data protection proceedings, of which 225 were initiated on the motion of an affected person, 121 on the motion of an unaffected person, 93 opened following an investigation and 71 opened by the Office on its own initiative.

In 2015, the Office imposed financial penalties in 28 cases, totalling €74,950. The average fine for 2015 was approximately €2,677. The lowest fine (€150) was imposed for a breach of the obligation to provide co-operation. The highest fine (€8,000) was imposed on the controller for multiple various breaches, including the provision of personal data with no legal ground, non-fulfilment of the obligation to inform data subjects, inconsistent security of personal data processing and failure to notify filing systems.

In 2016, the Office imposed financial penalties in 39 cases, totalling €83,150. The average fine in 2016 was approximately €2,132. The lowest fine (€300) was imposed on a controller for a breach of the obligation to notify filing systems. The highest fine (€7,000) was imposed on a controller primarily for failure to meet the obligation of special registration, as the controller had, in the view of the Office, handled biometric data without considering the adequacy, necessity, and legal ground for the processing of such data.  

According to the statistics kept by General Prosecution Authority of the Slovak Republic, 20 offenders were prosecuted and 7 sentenced in 2016 in connection with the crime of unauthorised handling of personal data under the Slovak Criminal Code.

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

The Act No. 351/2011 Coll. on Electronic Communications of 14 September 2011 (the “ECA”) implemented Article 13 of the Privacy and Electronic Communications Directive. Direct marketing is subject to Section 62 of the ECA, which came into force on 1 November 2011.

The ECA implemented the amendments to the Privacy and Electronic Communications Directive.

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Cookies

Conditions for use of cookies

According to the ECA, cookies may be used only if the user has given his consent based on clear and comprehensive information about the purpose of processing.

The ECA provides an exception from the consent requirement for law enforcement authorities and other state authorities. The ECA expressly refers to the use of browser settings as means to obtain the consent. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide the information society service explicitly requested by the user.

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

Direct marketing by e-mail is authorised, subject to the subscriber’s prior consent. Consent already given can be withdrawn at any time.

Conditions for direct marketing by e-mail to corporate subscribers

Direct marketing by e-mail is authorised, subject to the subscriber’s prior consent. Consent already given can be withdrawn at any time.

Exemptions and other issues

The similar products and services exemption applies. The sending of e-mail for purposes of direct marketing that does not specify the identity of the sender or a valid address to which the recipient may send a request seeking termination of such communication is prohibited. 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)

Direct marketing by telephone is authorised, subject to the prior consent of the individual subscriber. Consent already given can be withdrawn at any time.

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

Direct marketing by telephone is authorised, subject to the prior consent of the corporate subscriber. Consent already given can be withdrawn at any time.

Exemptions and other issues

The same issues apply as for marketing by e-mail.

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