Data Protected - Spain

Last updated December 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 Spanish Data Protection and Digital Rights Act 3/2018 (the “Data Protection Act”) helps implement the GDPR and creates a new digital charter of rights.

Entry into force

The GDPR applies from 25 May 2018.

The Data Protection Act applies from 7 December 2018.

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National Supervisory Authority

Details of the competent national supervisory authority

Agencia Española de Protección de Datos (the “AEPD”)
C/Jorge Juan, 6
28001 Madrid, Spain
Tel +34 901 100 099/ +34 91 266 35 17

www.agpd.es

The AEPD is the national data protection authority and represents Spain on European Data Protection Board.

Notification or registration scheme and timing

There is no obligation to notify regulators of any processing under the GDPR. 

Exemptions to notification

Not applicable.

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Scope of Application

What is the territorial scope of application?

The GDPR applies the processing of personal data in the context of the establishment of a controller or processor in the EU.

It also contains express extra-territorial provisions and will apply to controllers or processors based outside the EU that: (i) offer goods or services to individuals in the EU; or (ii) monitor individuals within the EU. Controllers and processors caught by these provisions will need to appoint a representative in the EU, subject to certain limited exemptions.

Is there a concept of a controller and processor?

Yes. The GDPR contains the concept of a controller, who determines the purpose and means of processing, and a processor, who just processes personal data on behalf of the controller.

Both controllers and processors are subject to the rules in the GDPR, but the obligations placed on processors are more limited. 

Are both manual and electronic records subject to data protection legislation?

Yes. The GDPR applies to both electronic records and structured hard copy records.

Are there any national derogations?

The GDPR does not apply to law enforcement activities which are instead subject to the Law Enforcement Directive. The GDPR also does not apply to areas of law that are outside the scope of Union law, such as national security, and does not apply to purely personal or household activity.

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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 Spain, the Data Protection Act sets the minimum age of consent at 14 years old.

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Sensitive Personal Data

What is sensitive personal data?

Sensitive personal data is personal data consisting of racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation.

The inclusion of genetic and biometric data is new and an extension to the types of sensitive personal data in the Data Protection Directive.
Information about criminal offences is dealt with separately and is subject to even tighter controls.

Are there additional rules for processing sensitive personal data?

Sensitive personal data may only be processed if a condition for processing sensitive personal data is satisfied. A condition arises where the processing: (a) is carried out with the data subject’s explicit consent; (b) is necessary for a legal obligation in the field of employment law; (c) is necessary to protect the vital interests of the data subject or another person where the data subject is unable to give consent; (d) is carried out by a non-profit-seeking body and relates to members of that body or persons who have regular contact; (e) relates to data made public by the data subject; (f) is necessary for legal claims; (g) is for reasons of substantial public interest under EU or Member State law; (h) is necessary for healthcare reasons; (i) is necessary for public health reasons; or (j) is necessary for archiving, scientific or historical research purposes or statistical purposes and is based on EU or Member State law.

According to the Data Protection Act, consent of the individual will not be sufficient for processing data where the main purpose is to identify that individual’s ideology, trade union membership, religion, sexual orientation, beliefs or racial or ethnical origin. This is to prevent discrimination.

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).

Data protection officers must also be appointed where required by national law. According to the Data Protection Act, there will be a mandatory obligation to appoint data protection officers for, among others, professional associations, educational institutions, some electronic communication services providers, credit institutions, insurance companies, investment services companies, those carrying out profiling for marketing purposes, companies in the health sector and online game companies.

The Data Protection Act also allows organisations to 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 Spain, the AEPD 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 Data Protection Act, the privacy notice should be given in a layered manner. This means there must be: (i) a first layer containing certain minimum information, and (ii) a full privacy notice containing all the enhanced transparency information. The AEPD has issued detailed guidelines on privacy notices.

The privacy notices can be in a foreign language (e.g. English) provided that the controller can prove that the data subject understands that language.  

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).

Under the new digital charter of rights, individuals will have a specific right to data portability for social media data. 

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. 

Under the new digital charter of rights, individuals will have the right to be de-listed from internet searches and social media. This is supplemented by a specific right to “rectification on the internet” which is particularly relevant to social media, digital and information society services platforms. 

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).

The Data Protection Act introduces a new digital charter of rights. This provides the right to net neutrality, universal access to internet, digital security, digital education and digital wills. Employees are also granted new rights to privacy when using digital devices, the right to disconnect from the use of digital tools, the right to privacy against the use of video-surveillance in the workplace and geo-localisation systems. 

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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.

The AEPD issued detailed guidelines on the provisions of contracts with third-party processors. 

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

Data controllers in certain sectors may be required to inform sectoral regulators of any breach. For example, electronic communications service providers must give notice of a personal data breach to the AEPD and to the users affected (except in certain cases). The AEPD has issued detailed guidelines on personal data breaches and breach notification. 

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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.

In Spain, the ability to carry out transborder dataflows based on Model Contracts without prior approval by the AEPD is a significant amendment.

Use of binding corporate rules

The GDPR places binding corporate rules on a statutory footing. It will be possible to obtain authorisation from one supervisory authority that will cover transfers from anywhere in the EU.

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Enforcement

Fines

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

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

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

Imprisonment

The Spanish Criminal Code does not criminalise failure to comply with the Data Protection Act as such.

However, it establishes a number of related criminal offences, such as unauthorized access to a computer system, interception of data and computer fraud. It is also an offence to carry out “sexting”, hacking or the sending of offensive communications by electronic means, which can result in imprisonment.

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

Generally, the AEPD is very active in terms of investigation and enforcement. In 2017, the AEPD initiated 2,668 proceedings, 1,381 of which resulted in sanctions against private entities and 69 against public entities. Fines imposed by the AEPD in 2017 amounted to €17,319,962.

In the private sector, seven of these sanctions (0,5%) were related to very serious breaches under Spanish law prior to GDPR (subject to fines ranging from €300,001 to €600,000), 1,177 sanctions (85%) related to serious breaches (fines from €40,001 to €300,000), and 197 sanctions (14%) related to non-serious breaches (fines of up to €40,000).

The most relevant breaches of the DPA penalised by the AEPD in 2017 relate to breaches or infringements carried out in relation to bad debtor data files, fraudulent contracting, advertising, and recovery of the debt.

The AEPD is expected to continue to vigorously enforce data protection rights under the GDPR. 

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

Law 34/2002 on information society services and electronic commerce (the “ECA”) implemented Article 13 of the Privacy and Electronic Communications Directive. The ECA is effective as of 12 October 2002.

The rest of the provisions concerning the processing of personal data and the protection of privacy in the electronic communications sector set out in the Privacy and Electronic Communications Directive such as itemised billing, traffic data, location data other than traffic data, directories of subscribers, etc. were incorporated into Spanish Law in 2005 and were re-enacted by the telecoms law (Law 9/2014 on Telecoms).

The ECA was amended to implement the amendments to the Privacy and Electronic Communications Directive.

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Cookies

Conditions for use of cookies

Under the ECA it is necessary to inform users of the use of cookies and to obtain consent to the use of cookies unless the cookie is strictly necessary for the provision of a service to that subscriber or user. The ECA was amended to expressly state it is an infringement to use cookies without providing the relevant information to, or obtaining consent from, the data subject.

Regulatory guidance on the use of cookies

The AEPD issued a guide on the use of cookies which, despite not being legally enforceable, provides a useful understanding of the AEPD’s position.

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Marketing by E-mail

Conditions for direct marketing by e-mail to individual subscribers

The ECA provides that it is forbidden to send advertising or promotional communications by e-mail, or by any other equivalent means, if they have not been requested or expressly authorised by the recipient of such communication.

Conditions for direct marketing by e-mail to corporate subscribers

The ECA provides that it is forbidden to send advertising or promotional communications by e-mail, or by any other equivalent means, if they have not been requested or expressly authorised by the recipient of such communication.

Exemptions and other issues

The similar products and services exemption applies. The ECA also prohibits direct marketing e-mails from being sent if: (i) the identity of the sender is disguised or concealed; or (ii) an opt-out address is not provided.

The sender must also include the eCommerce information.

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Marketing by Telephone

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

Data processing for marketing purposes (including direct marketing by telephone to individual subscribers) carried out by human means is permitted if the requirements set down by the DPA are met. That is when: (i) the data have been obtained lawfully (including from fixed telephony directories which are deemed a source accessible to the public); and (ii) the data subject has not objected to receiving calls for marketing purposes.

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

Direct marketing by telephone which is addressed at an individual within a corporation, must meet the requirements set out above for marketing by telephone to individual subscribers.

If the direct marketing by telephone carried out by human means is not aimed at individuals within a corporation but at a corporation itself, the DPA and the ECA apply no restrictions. However, Law 9/2014 on Telecoms gives such end user the right to object to receiving calls for marketing purposes.

Exemptions and other issues

No exemptions apply.

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