Data Protected - Sweden

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”).

On 18 April 2018, the Swedish parliament adopted a new legislative act, the Data Protection Act, with complementary provisions to the GDPR (Sw. Lag (2018:218) med kompletterande bestämmelser till EU:s dataskyddsförordning) (the ”Data Protection Act”). The Data Protection Act replaced the old Personal Data Act (Sw. Personuppgiftslag (1998:2014)) as of 25 May 2018.

Entry into force

The GDPR and the Data Protection Act apply from 25 May 2018.

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National Supervisory Authority

Details of the competent national supervisory authority

Datainspektionen (the “Data Inspection Authority”) will continue to act as the supervisory authority in Sweden.

Datainspektionen
Box 8114
SE-104 20 Stockholm
Sweden

www.datainspektionen.se

The Data Inspection Authority will represent Sweden 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.

The Data Protection Act includes an informative provision, clarifying that the provisions of the GDPR and the Data Protection Act shall not be applicable in case they contradict the provisions of the Freedom of the Press Act (Sw. Tryckfrihetsförordningen) and the Fundamental Law on Freedom of Expression (Sw. Yttrandefrihetsgrundlagen), which are both part of the Swedish constitution.

The Data Protection Act also provides a similar exemption for the processing of personal data for journalistic purposes and academic, artistic and literary creation. Accordingly, articles 5-30 and 35-50 of the GDPR, as well as chapters 2-5 of the Data Protection Act, do not apply to the processing of personal data conducted for journalistic purposes or academic, artistic and literary creation.

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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.

The Data Protection Act states that the age at which a child can provide a valid consent should be reduced to 13 years old.

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Sensitive Personal Data

What is sensitive personal data?

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

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

Are there additional rules for processing sensitive personal data?

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

The Data Protection Act includes the following additional provisions regarding the processing of sensitive personal data.

Processing of sensitive personal data shall be permitted if necessary for the controller or the data subject to fulfil their respective obligations and exercise certain rights within Swedish labour law and the areas of social security and social protection. Personal data processed based on this exception may only be disclosed to a third party in case: (i) there is an obligation for the controller to do so under Swedish labour law or within the areas of social security and social protection; or (ii) the data subject has given its consent to such disclosure.

Authorities and others who are subject to the principle of public access to public records (Sw. offentlighetsprincipen) shall be permitted to process sensitive personal data, if the data has been submitted to the controller and processing is required by law. An authority may also process sensitive personal data if it is necessary for the handling of a matter involving individuals. Sensitive personal data may be processed by an authority also in other cases, if such processing is necessary with respect to an important public interest and does not unduly infringe the data subject’s personal integrity. When processing occurs solely based on the aforementioned grounds, it would be prohibited to perform searches intended to establish a selection of people based on sensitive personal data.

The Swedish Government shall be authorised to issue regulations regarding processing of sensitive personal data which is necessary with respect to an important public interest.

Processing of sensitive personal data shall be permitted if such processing is necessary for: (i) preventive healthcare and medicine practice; (ii) the judgment of an employee’s work capacity; (iii) medical diagnoses; (iv) providing healthcare or treatment; (v) social care; or (vi) the administration of healthcare services, social care and their systems. Processing based on the foregoing is permitted provided that the obligation of professional secrecy set out in article 9.3 of the GDPR is complied with.

Processing of sensitive personal data shall also be permitted for: (i) archival purposes, if the processing is necessary for the controller to comply with archiving regulations; or (ii) statistical purposes, if the processing is necessary for statistical purposes and the public interest of the project of which the processing is part, clearly trumps the risk of unduly infringement of the individual’s personal integrity which may occur as a consequence of the processing.

The Data Protection Act also states that, even though not considered sensitive personal data, processing of personal identity numbers and co-ordination numbers without consent, shall only be permitted if there is a clear justification for that use, there is a need for proper identification or there is another good reason.

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.

According to the Data Protection Act, public authorities shall be permitted to process personal data relating to criminal convictions and offences. Others may also process such personal data, if such processing is necessary for the controller to comply with archiving regulations. The Government, or a public authority decided by the Government, may authorise other entities to process information about criminal offences in certain cases. Such authorisations may be made subject to 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. However, there will be no additional mandatory obligation to appoint data protection officers in Sweden.

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).

The Data Protection Act imposes an obligation of confidentiality on data protection officers in respect of information obtained by a data protection officer in the performance of its duties. Within the public sector, the Public Access to Information and Secrecy Act (Sw. offentlighets- och sekretesslagen) applies instead of the foregoing.

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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 Sweden, the Data Inspection Authority has established a page on its website setting out examples of “high processing” requiring a data protection impact assessment.

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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 Sweden, it is likely that the Data Inspection Authority in most cases will require controllers to provide Swedish data subjects with a privacy notice in Swedish. It may otherwise be difficult to show that the information has been fairly provided if it is not in a language the data subject is familiar with. The Data Inspection Authority has however not made any official statements as to language requirements for privacy notices.

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

In Sweden, since 2016, the authorities have been required to report certain IT incidents, such as severe data breaches, to the Swedish Civil Contingencies Agency (Sw. Myndigheten för samhällsskydd och beredskap). Moreover, controllers in certain sectors may be required to inform sectoral regulators of any breach (for example, financial services firms may be required to inform the Swedish Financial Supervisory Authority (Sw. Finansinspektionen) of any breach).

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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 Sweden, no binding corporate rules from any Swedish companies have been approved by the Data Inspection Authority. However, several companies with activity in Sweden are subject to such rules, as part of a group where the parent company has obtained approval in another EU member state.

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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).

The Data Protection Act states that fines shall also be imposed on authorities when in breach of GDPR provisions. The maximum fine for breaches by authorities shall be SEK 5m for less serious breaches, and SEK 10m for severe breaches. The provisions of the GDPR shall be applied when determining the size of the fine on a case by case basis.

Imprisonment

The Data Protection Act does not include any provisions on criminal liability, such as the provision on criminal liability under the previous Swedish data protection legislation. However, data breach is a criminal act under the Swedish Penal Code (Sw. brottsbalken).

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. 

In Sweden, the Data Protection Act states that the Government, or the authority decided by the Government, shall have power to issue regulations on when others (excluding the authorities) may process personal data regarding criminal offences. Such decisions may be made subject to certain conditions. The Government has delegated this task to the supervisory authority, i.e. the Data Protection Authority.

Practice

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

As of the beginning of June 2018, no inspection matters have been initiated by the Data Protection Authority during 2018. During 2017, 21 inspection matters were initiated in total, compared to 15 during 2016 and 53 during 2015. The significant decrease of initiated inspection matters in the last years is most likely due to the workload related to GDPR preparations.

The typical penalties imposed for violations of the Swedish Penal Code that result in prosecution are fines and damages awarded to the victim. The level of the fine varies according to the severity of the crime and the income of the person responsible for the breach.

Five people were recently sentenced to imprisonment and a charge to the Fund for the Victims of Crime (Sw. Brottsofferfonden) for gross fraud and data breaches against several hundred companies, banks, authorities and municipalities during 2015 and 2016. The victims were also awarded damages.

An employee at the Swedish Social Insurance Administration (Sw. Försäkringskassan) who had made three inadmissible searches on her husband on the administration’s IT systems was sentenced to pay fines amounting to SEK 6,000 and a charge to the Fund for the Victims of Crime.

A mobile phone vendor who sent a customer’s nude photographs to his own e-mail account whilst repairing the customer’s phone was sentenced to pay fines amounting to SEK 10,000 and damages to the victim amounting to SEK 5,000.

An employee at a Swedish hospital who accessed the medical records of 375 cancer patients (all of whom were children) was sentenced to a probationary sentence and to pay damages to the victims amounting to in aggregate SEK 1,500,000.

There have been cases of imprisonment for breaches of the data protection legislation, in particular cases where the infringer has committed other additional offences, for example, severe defamation. One case which involved imprisonment for breach of the data protection legislation concerned two persons with Nazi leanings who set up a register containing details of religious and political beliefs, sexual life and race for a large group of people. The sentence referred mainly to the breach of the data protection legislation. One of the victims of the infringement received SEK 10,000 in damages (approximately EUR 1,070 at the time).

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

The Marketing Act (Sw. marknadsföringslagen (2008:486)) which entered into force on 1 July 2009.

The Electronic Communications Act (Sw. lagen om elektronisk kommunikation (2003:389)) which was amended on 1 July 2011 to implement the amendments to the Privacy and Electronic Communications Directive.

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Cookies

Conditions for use of cookies

Consent is needed for the use of cookies unless the cookie is strictly necessary for the provision of a service to a subscriber or user that the subscriber or user explicitly has requested.

Regulatory guidance on the use of cookies

The Swedish Post and Telecom Authority (Sw. Post- och telestyrelsen) (the “PTS”) is the national regulatory authority that monitors the electronic communications and postal sectors in Sweden. The PTS has issued general guidance on the use of cookies, which can be found on the PTS’s web site. However, the PTS has not yet issued any guidance on how consent shall be obtained for a certain website except that consent shall be a conscious approval. Instead, the PTS, has explicitly stated that it considers the website holders to be best positioned to work out functional and secure solutions for how consent shall be obtained. The PTS is currently conducting an investigation on how to obtain consents 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 in principle only permitted if the recipient has given his/her consent.

Conditions for direct marketing by e-mail to corporate subscribers

The restrictions do not apply to corporate subscribers.

Exemptions and other issues

Direct marketing by e-mail does not require consent if the similar products and services exemption applies. In such case, a valid opt-out address must always be provided. The sender must also include the eCommerce information and other information that could be of particular importance from a consumer’s perspective, if any.

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Marketing by Telephone

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

Direct marketing by telephone is permitted unless the individual has clearly opposed such marketing.

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

The rules on direct marketing by telephone are not applicable in relation to corporate subscribers.

Exemptions and other issues

No exemptions apply. The recipient must be told who is responsible for the marketing and must be provided with information that could be of particular importance from a consumer’s perspective.

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