Data Protected - Slovenia

Contributed by Petra Smolnikar Law

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”).

The new Slovenian Data Protection Act (“ZVOP-2”) is currently in the legislative pipeline. Its aim is to ensure the implementation of the GDPR in a systematic manner, so as to encompass as many of the personal data protection aspects of the GDPR as possible, thereby repealing the current Data Protection Act (“ZVOP-1”).

The proposed ZVOP-2 is largely based on the GDPR and borrows defined terms from both the GDPR and the Data Protection Directive. However, in some areas its provides further detail about the operation of the GDPR.

The ZVOP-1 is not considered below, though it is summarised in the last edition of Data Protected, available here.

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 ZVOP-2, as currently proposed, suggests that the Information Commissioner will continue to act as the supervisory authority in Slovenia.

The Information Commissioner (Informacijski pooblaščenec) (the “Commissioner”)
Zaloška 59
SI-1000 Ljubljana
Slovenia

www.ip-rs.si

The Commissioner will represent Slovenia 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. 

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.

As the ZVOP-2 has not yet been finalised, there is currently no conclusive information on national derogations.

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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 Slovenia, the age at which a child can provide a valid consent is likely to be reduced to 15 (or 14) years of age under the current ZVOP-2 proposal.

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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.

As the ZVOP-2 has not yet been finalised, there is currently no conclusive information on any specific national conditions

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.

As the ZVOP-2 has not yet been finalised, there is currently no information on any specific national conditions.

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. As currently proposed by the ZVOP-2, a data protection officer must be appointed if: (i) controllers and processors are a public authority, or processors in the private sector, that perform duties of processing for controllers in the public sector; or (ii) controllers and processors in the private sector perform activities of processing personal data, which due to their nature, scope or purpose comprise regular, systematic and extensive supervision of individuals, to which the data pertains, or their activities comprise extensive processing of special types of personal data or personal data pertaining to criminal judgments and misdemeanours. Other controllers and processors may voluntarily 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 Slovenia, as currently proposed by the ZVOP-2, an impact assessment must be carried out in accordance with the GDPR to assess the risk of processing personal data in relation to the protection and realisation of personal data protection rights. No list of “high risk” processing has been issued.

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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 Slovenia, in order to comply with the Public Use of the Slovene Language Act, legal entities in the public and private sector must use the Slovenian language in all communications with others in the territory of the Republic of Slovenia. When corresponding with foreigners, a foreign language may be used in addition to Slovenian.

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

Moreover, controllers in certain sectors may be required to inform sectoral regulators of any breach. However, as the ZVOP-2 has not yet been finalised, there is currently no information on sector specific requirements.

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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.

As the ZVOP-2 has not yet been finalised, there is currently no conclusive information on the Slovenian approach to 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).

Imprisonment

No information is currently available as the ZVOP-2 has not yet been finalised.

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

In 2015 the Commissioner initiated 237 inspection proceedings due to suspected violation of the ZVOP-1 in the private sector. 215 of those proceedings were initiated on the basis of received reports and 22 ex officio. Further, 244 inspection proceedings have been initiated in the public sector.

As a result, 104 violation procedures have been conducted due to the violation of the ZVOP-1, 56 of which were against legal persons and their responsible persons in the private sector. Of those violation procedures, 33 monetary fines were imposed due to the violation of the ZVOP-1 (which is 17 less than in previous year).The Commissioner has actively encouraged the education of the public on the fundamental rights giving rise to the protection of personal data and regularly appears in the public media and frequently publishes education pamphlets as well as informative memoranda relating to topics connected with personal data protection (e.g. article on the implications of membership in certain internet-based social networks, publications of topic-specific guidelines).

In 2016, the Commissioner handled 683 cases, of which 245 were in the public sector and 438 in the private sector. 211 of those proceedings were initiated on the basis of received reports and 34 were started ex officio. Within the private sector, 390 cases were investigated based on received reports and 49 ex officio.

The number of proceedings that have been initiated does not differ significantly from previous years. Predominantly, cases were referred for the: (i) disclosure of personal data to unauthorised users; (ii) unauthorised video surveillance (in particular in the workplace); (iii) use of personal data for the purposes of direct marketing; (iv) forwarding and reading of electronic messages addressed to the business addresses of employees; (v) disclosure of personal data on webpages and (vi) insufficient security of personal data. The Commissioner’s ex officio supervisory proceedings have, in the past year, been most frequent within the healthcare sector, police force, banks and insurance companies, high schools and higher education institutions, energy companies and municipalities.

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

Slovenian ePrivacy laws are mainly contained in: (i) the ZVOP-1 (soon to be repealed by the ZVOP-2); (ii) the Slovenian Consumer Protection Act (Zakon o varstvu potrošnikov, UL RS No. 98/2004, 126/2007, 86/2009, 78/2011, 38/2014 and 19/2015); (iii) Electronic Commerce Market Act (Zakon o elektronskem poslovanju na trgu, UL RS No. 96/2009 and 19/2015) (the "ZEPT"); and (iv) the Slovenian Electronic Communications Act (Zakon o elektronskih komunikacijah, UL RS No. 109/2012, 110/2013) (the “ZEKom-1”), which entered into force on 15 January 2013 and implemented the Privacy and Electronic Communications Directive. The public authority entrusted with the supervision of the effective execution of the respective provisions of ZEKom-1 is the Agency for Communicational Networks and Services of the Republic of Slovenia (Agencija za komunikacijska omrežja in storitve Republike Slovenije) (the “Agency”), being the legal successor of the (former) Slovenian Electronic Communications Agency (Agencija za Posto in Elektronske Komunikacije).

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Cookies

Conditions for use of cookies

The ZEKom-1 contains specific cookies regulations. The use of cookies is only allowed if the subscriber or user has given his or her consent, having been provided with clear and comprehensive information on the controller and on the purpose of processing of this data in accordance with the ZVOP-1. An exception is provided: (i) where such use is necessary for the transfer of the message by means of the electronic communication network; or (ii) if it is necessary for the provision of an information society service requested by the subscriber or the user. Consent by the user may be given based on browser settings where technically feasible and effective and in accordance with the ZVOP-1.

Regulatory guidance on the use of cookies

The Commissioner has issued comprehensive guidelines on 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 governed by the sector-specific ZEKom-1 and is generally permitted only with the subscriber’s or user’s prior consent.

Conditions for direct marketing by e-mail to corporate subscribers

Pursuant to the latest amendment to the ZEPT, applicable as of 4 April 2015, the prior consent of the corporate subscribers for direct marketing by e-mail is no longer required. However, the eCommerce information must be presented to the addressee.

Exemptions and other issues

ZEKom-1 allows direct marketing by e-mail where the similar products and services exemption applies. The sending of e-mail for purposes of direct marketing which: (i) disguises or conceals the identity of the sender on whose behalf the communication is made; or (ii) is sent without a valid address, to which the recipient may respond, 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)

Pursuant to the ZVOP-1, the utilisation of personal telephone numbers for the purposes of direct marketing is, in principle, permitted, if the controller has obtained the telephone number of the individual either: (i) from publicly available sources; or (ii) in the course of the lawful conduct of the business activity. The person using the individual’s telephone number for the purpose of direct marketing is further obliged to inform the individual of his right to request that such communication ceases at any time, permanently or temporarily.

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

Pursuant to the latest amendment to the ZEPT, applicable as of 4 April 2015, prior consent is no longer needed for direct marketing by telephone to corporate subscribers. However, the eCommerce information must be presented to the addressee.

Exemptions and other issues

If an individual requests that the direct marketing calls cease, the person conducting the marketing activity is obliged to prevent the telephone number of the individual from being used for the purposes of direct marketing within 15 days upon having received such request, and should inform the addressee thereon within the following five days.

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