Data Protected - Belgium
Last updated February 2020
General | Data Protection Laws
National Supervisory Authority
Scope of Application
Sensitive Personal Data
Data Protection Officers
Accountability and Privacy Impact Assessments
Rights of Data Subjects
Transfer of Personal Data to Third Countries
ePrivacy | Marketing and cookies
General | Data Protection Laws
General data protection laws
The General Data Protection Regulation (EU) (2016/679) (“GDPR”).
Belgium has adapted its national legislation to the GDPR in two steps.
The first is the reform of the Belgian Privacy Commission - now called the Data Protection Authority - in terms of organisation as well as in terms of powers. This was done with the adoption of the law of 3 December 2017 (the “DPA Act”).
The second step is the Law on the protection of individuals with regard to the processing of personal data of 30 July 2018 (the “Framework Act”). The Framework Act is extensive as it both implements the elements which the GDPR left to the national law and also implements the Law Enforcement Directive.
Entry into force
The GDPR has applied since 25 May 2018.
The Belgian DPA Act applies from the same date as the GDPR, except for Section III (Appointment of the members of the Data Protection Authority), which applied as of 10 January 2018 (the date of its publication in the Official Journal).
The Framework Act applies as of 5 September 2018 (the date of its publication in the Official Journal).
National Supervisory Authority
Details of the competent national supervisory authority
Data Protection Authority (the “Data Protection Authority”)
Rue de la Presse - Drukpersstraat 35
The DPA Act provides the Data Protection Authority with additional powers to ensure compliance with the GDPR. It has also entirely re-organised the Data Protection Authority. It is now composed of an executive board, a body in charge of general affairs, a front office (for first line advice), a knowledge centre, an inspection service and a litigation chamber.
The Data Protection Authority represents Belgium 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. However, controllers and processors must keep a record of their processing and make it available to their supervisory authority on request (subject to limited exemptions).
Exemptions to notification
Scope of Application
What is the territorial scope of application?
The GDPR applies to 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.
The European Data Protection Board has issued Guidelines on the territorial scope of the GDPR (3/2018).
The Framework Act reflects the rules on the territorial scope of application of the GDPR. It applies to: (i) controllers and processors established in Belgium processing personal data in the context of the activities of that establishment, regardless of where the actual processing takes place; and (ii) controllers and processors established outside the EU that either offer goods or services to individuals in Belgium or monitor individuals’ behaviours taking place in Belgium.
However, the Framework Act does not apply to a Belgian-based processor if: (i) that processor is used by a controller established in another EU Member State; and (ii) the processing takes place in that other Member State. In that case, the law of the other EU Member State applies to the Belgian-based processor.
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 Framework Act does not contain any derogations for the processing of employee data. However, it does contain derogations for processing for journalistic, academic, artistic and literary purposes. These types of processing may, depending on the circumstances, be exempt from various obligations under the GDPR including the rights of data subjects and the rules on transborder dataflow.
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 cookies.
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: (i) processed fairly, lawfully and transparently; (ii) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (iii) adequate, relevant and not excessive; (iv) accurate and, where necessary, up to date; (v) kept in an identifiable form for no longer than necessary; and (vi) 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 old Data Protection Directive. The European Data Protection Board has issued Guidelines on the performance of a contract processing condition for online services (2/2019).
Are there any formalities to obtain consent to process personal data?
The requirements for consent under the GDPR are strict.
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 Belgium, the Framework Act reduced the age as from which a child may consent alone to the processing of his/her personal data in the context of online services to 13 years.
Are there any special rules when processing personal data about employees?
The GDPR allows Member States to implement more specific national rules governing the processing of personal data about employees. It may also be possible to process special category personal data where it is necessary for a legal obligation in the field of employment law.
Belgium has not implemented any specific national rules (through an Act or collective bargaining agreement) as a result of the entering into force of the GDPR in relation to the processing of personal data of employees. Such processing is therefore based on legal obligations (such as social security legislation), the performance of the employment contract or the employer’s legitimate interest. Existing specific employment rules may also apply to the processing. For example, in relation to camera surveillance, the introduction of new technologies or the monitoring of electronic communications. These rules are likely to be updated in the coming years.
Sensitive Personal Data
What is sensitive personal data?
Special category 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?
Special category data may only be processed if a condition for processing special category 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 fields of employment, social security and social protection 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 Framework Act clarifies what is to be understood by a ‘substantial public interest’ under Belgian law. It namely covers: (i) processing operations by associations defending fundamental rights and freedoms of individuals (provided such processing is authorised by a Royal Decree); (ii) processing done by the Foundation for Missing and Sexually Exploited Children; and (iii) associations whose main objective is the evaluation, guidance and treatment of persons whose sexual conduct can be qualified as an offence (provided such processing is authorised by a Royal Decree).
The Framework Act also imposes additional requirements on controllers when processing genetic, biometric or health related data, namely to: (i) keep a list of categories of persons having access to the personal data with a description of their function; (ii) make this list available to the Data Protection Authority upon request; and (iii) ensure those persons are bound by a statutory or contractual confidentiality duty towards the data.
Are there additional rules for processing information about criminal offences?
It is only possible to process personal data relating to 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 providing for appropriate safeguards for the rights and freedoms of data subjects.
The Framework Act provides for certain exceptions to the prohibition to process the personal data relating to criminal convictions and offences, i.e. when it is: (i) necessary for the management of the controller's own litigation; (ii) done by lawyers or other legal counsel to defend their clients; (iii) necessary for reasons of a substantial public interest; (iv) necessary for scientific, historical or statistical research or for archiving; (v) allowed by the individual’s express written consent; or (vi) relating to personal data which have been made public by the individual itself for one or more specific purposes and the processing remains limited to such purpose.
The Framework Act also imposes additional requirements on controllers when processing personal data relating to criminal convictions and offences, namely to: (i) keep a list of categories of persons having access to the personal data with a description of their function; (ii) make this list available to the Data Protection Authority upon request; and (iii) ensure those persons are bound by a statutory or contractual confidentiality duty towards the data.
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.
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 special category 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, Belgium has not made such appointment mandatory in the private sector in any additional circumstances.
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. Details of the data protection officer must be communicated to the relevant supervisory authority.
The Article 29 Working Party has issued Guidelines on Data Protection Officers (WP243).
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 on a large scale either special categories of personal data or personal data relating to criminal convictions and offences; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV). Where the assessment indicates the risk cannot be mitigated, the controller must consult the relevant supervisory authority.
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.
On 22 March 2019, the Data Protection Authority published in the Belgian State Gazette its list of high risk processing activities for which a data protection impact assessment must be conducted.
Rights of Data Subjects
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).
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.
The European Data Protection Board has issued Guidelines on the criteria of the Right to be Forgotten in the search engines cases under the GDPR (part 1) (5/2019).
Objection to direct marketing
A data subject can object to their personal data being processed for direct marketing purposes at any time. This includes profiling to the extent related to direct marketing.
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).
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.
Specific notice of breach laws apply to the electronic communications sector under national laws implementing the Privacy and Electronic Communications Directive and to operators of essential services and digital service providers under national laws implementing the Network and Information Systems Directive.
The Article 29 Working Party has issued Guidelines on Personal Data Breach Notification (WP250).
Moreover, data controllers in certain sectors may be required to inform sectoral regulators of any breach as may be required by other laws.
Transfer of Personal Data to Third Countries
Restrictions on transfers to third countries
The GDPR contains a restriction on transborder dataflows. A transfer can take place if it: (i) is to a whitelisted country; (ii) is made pursuant to a set of Model Contracts; (iii) 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 old 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 (subject to approval through the consistency mechanism) that will cover transfers from anywhere in the EU.
In Belgium, the Data Protection Authority is usually supportive to the adoption of binding corporate rules.
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).
In addition to the administrative fines provided for in the GDPR, the Framework Act also reintroduces criminal sanctions that vary depending on the nature of the infringement of the GDPR and/or the Framework Act. Those criminal sanctions apply to both controllers and processors as well as their representatives and agents. In some cases, gross negligence or malicious intent must be proven to establish an infringement. In other cases, mere negligence is sufficient.
The Framework Act does not provide for any imprisonment as sanction for breaches of the GDPR and/or the Framework Act.
Data subjects have a right to compensation in respect of material and non-material damage.
The Framework Act allows non-for-profit bodies, organisations and associations to claim compensation on behalf of data subjects in court proceedings, subject to such bodies, organisations and associations meeting certain criteria in relation to their legal status and scope of activities.
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 November 2019, a mayor and municipal alderman were each fined €5,000 for sending election mailings to email addresses which were not collected for that purpose.
- A merchant was fined €10,000 for requiring its customers to provide their electronic ID cards as the sole means of issuing loyalty cards. This decision was annulled in appeal by the Market Chamber.
First annual report of the Data Protection Authority: in November 2018, i.e. six months after the entry into force of the GDPR, the Data Protection Authority published its first annual report. During this six-month period, the Data Protection Authority received 317 data breach notifications (compared to 13 in 2017), 3,599 information requests were introduced (compared to 2,145 in 2017), 148 complaints were introduced (compared to 76 in 2017), 137 advice cases were opened (compared to 44 in 2017), and 3,540 data protection officers were notified.
Strategic Plan: in December 2019, the Data Protection Authority issued its strategic plan for 2019 – 2020, highlighting the sectors it intends to focus on, following a pragmatic and risk-based analysis. These sectors are telecommunications & media, public authorities, direct marketing, education and SMEs. This does however not mean that enforcement will only occur within these sectors.
ePrivacy | Marketing and cookies
Belgian ePrivacy laws are contained in the Code of Economic Law (the “CEL”) and the Royal Decree of 4 April 2003 on the sending of advertising by e-mail (the “RD”), with regard to e-mails, all of which implemented Article 13 of the Privacy and Electronic Communications Directive.
Belgian law has been amended to implement some of, but not all, the amendments to the Privacy and Electronic Communications Directive.
As in most other Member States, the law does not specify how consent from users should be obtained. This matter has to be clarified through regulatory guidance.
The Data Protection Authority confirmed such requirements in a guidance that it published in April 2020. In this guidance, the Data Protection Authority also specified that functional cookies should in principle only be set for the duration of the session or even less, that cookie walls are not authorised, and that social network plug-ins on an internet site or mobile app cannot be activated without first obtaining user consent thereto.
Conditions for direct marketing by e-mail to individual subscribers
The CEL prohibits the use of e-mails for advertising purposes without prior, free, specific and informed consent of the addressees. Such consent can be revoked at any time, without any justification or any cost for the addressee.
Conditions for direct marketing by e-mail to corporate subscribers
The sending of direct marketing e-mails does not require consent if they are sent to a legal entity using “impersonal” electronic contact details (e.g. firstname.lastname@example.org). The use of addresses such as email@example.com, however, remains subject to the requirement for prior consent.
Exemptions and other issues
It is permitted to send e-mail for the purposes of direct marketing if the similar products and services exemption applies. The CEL 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.
Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)
Marketing calls to individual subscribers are prohibited in relation to subscribers who object to such marketing calls.
The CEL created an obligation on network operators to enable subscribers to exercise their opt-out right, free of charges. The CEL requires the setting up of a file in which every opt-out request by the subscribers is registered. The operator must give access to this file to the persons involved in direct marketing activities. Such an opt-out list has been put in place on behalf of the industry by the Belgian Direct Marketing Association (the “BDMA”).
By signing the so-called “Ne m’appelez plus/Bel me niet meer” list, subscribers indicate that they no longer wish to receive direct marketing by phone. Phone calls for direct marketing purposes to a phone number which is listed in the “Ne m’appelez plus/Bel me niet meer” list are prohibited.
The BDMA has also put in place another opt-out list which is not set forth in the law. The so-called “Robinson list” follows the same principles but covers marketing by mail. BDMA members undertake not to use these subscribers' addresses for marketing purposes.
Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)
Non-automated marketing calls to corporate subscribers are prohibited in relation to subscribers who object to such marketing calls.
Exemptions and other issues
No exemptions apply.