Data Protected - Liechtenstein

Contributed by Wanger Advokatur

Last updated April 2020

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 GDPR was incorporated into the European Economic Area (EEA) agreement on 6 July 2018 applies from 20 July 2018 in all non-EU EEA countries.

Datenschutzgesetz, the current Data Protection Act ("Data Protection Act") and Datenschutzverordnung ("Privacy Regulation") came into force on 1 January 2019.

Entry into force

The GDPR has applied since 25 May 2018.

The Data Protection Act came into force on 1 January 2019.

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National Supervisory Authority

Details of the competent national supervisory authority

The Datenschutzstelle is the supervisory authority in Liechtenstein.

Contact details:
Datenschutzstelle

Städtle 38 Post box 684
FL-9490 Vaduz
Liechtenstein

www.datenschutzstelle.li/

Notification or registration scheme and timing

There is no obligation to notify regulators of any processing under the GDPRHowever, 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

Not applicable.

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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).

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 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 DirectiveThe 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.

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.

Employers may not process personal data of employees, including data pertaining to criminal convictions and offences, unless necessary for: (i) deciding whether an employer-employee relationship is to be established; (ii) performing an employer-employee relationship or terminating it; or (iii) compliance with applicable laws.

Sensitive personal data may be processed when in relation to the exercise of rights and obligations in relation to employment.

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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.

Under the new Data Protection Act, sensitive personal data may be processed if the data subject's valid consent is obtained.

Sensitive personal data may be processed when in relation to the exercise of rights and obligations in relation to employment, social security and social protection.

Employers may not process personal data pertaining to criminal convictions and offences, unless necessary for: (i) deciding whether an employer-employee relationship is to be established; (ii) performing an employer-employee relationship or terminating it; or (iii) compliance with applicable laws.

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. 

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 special category personal data on a large scale (including processing information about criminal offences).

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).

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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 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 (WP248). 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. 

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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).

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. 

The Data Protection Act restricts the access of information in certain circumstances. These include situations which would: (i) endanger public security; (ii) in case of public bodies, endanger the performance of obligations as listed under Article 23(1)(a)-(e) of the GDPR; and (iii) affect the assertion, exercise or defence of legal claims, provided that these interests outweigh the interests of the data subject.

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 Data Protection Act, right to data portability does not apply in cases of data processing for archiving purposes in public interest insofar as it renders impossible or seriously impairs the achievement of the purposes, and the limitation is necessary to fulfil those purposes.

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.

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).

Restrictions on the right to object to automated decision making have been imposed by the Data Protection Act in cases of credit transactions, provision of investment services, taking measures to evaluate risks to prevent money laundering and so on. However, the controller has to take appropriate measures to safeguard the data subject's legitimate interests to contest the decision.

The right to erasure is also restricted under the Data Protection Act in cases of non-automatic processing where the erasure would be impossible or would involve a disproportionate effort due to the mode of storage. The restriction would only be applicable where the data was processed lawfully and the data subject's interest in the erasure was minimal.

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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. 

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).

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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. 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.

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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 controllers or processors may be liable for fines upto 360 day-fines for: (i) processing personal data without authorisation; (ii) breaching their obligation of confidentiality for personal data in their possession; or (iii) committing an offence to gain a financial advantage for either themselves or someone else, or to inflict a disadvantage on another person.

Imprisonment

Controllers or processors may be liable for imprisonment up to six months for: (i) processing personal data without authorisation; or (ii) breaching their obligation of confidentiality for personal data in their possession.

Controllers or processors may be liable for imprisonment up to a year for committing an offence to gain a financial advantage for either themselves or someone else, or to inflict a disadvantage on another person.

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

Fines: No fines have been issued in Liechtenstein for breaches of the GDPR.

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

The Communication Act dated 17 March 2006, which came into force on 6 June 2006 (the “CA”), implemented Article 13 of the Privacy and Electronic Communications Directive. It was amended on 10 November 2017. 

The CA has not been amended yet to implement the amendments to the Privacy and Electronic Communications Directive made by the Citizens’ Rights Directive. The implementation will be arranged by the Office for Communication as the regulatory, supervisory administrative authority for telecommunications in Liechtenstein in the fields of telecommunication, radio, television, cable television and Internet.

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Cookies

Conditions for use of cookies

If the cookie is strictly necessary and proportionate for the use of the website (e.g. for a shopping cart), there is no obligation to obtain consent. However, it is still necessary to provide website visitors with appropriate information on the use of cookies, e.g. in a data protection policy.

In other cases, due to the implementation of the GDPR it is necessary to obtain consent to the use of cookies.

Regulatory guidance on the use of cookies

A model privacy policy for a website is available from the regulator.

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Marketing by E-mail

Conditions for direct marketing by e-mail to individual subscribers

Under the CA it is not permitted to transmit messages for the purpose of direct marketing by e-mail unless the recipient has previously consented explicitly to the transmission. In addition, an organisation can send one single e-mail to customers asking them if they consent to further direct marketing.

Conditions for direct marketing by e-mail to corporate subscribers

The same conditions apply as for direct marketing by e-mail to individual subscribers.

Exemptions and other issues

Under the CA it is permitted to transmit messages if the similar products and services exemption applies. Notwithstanding this exemption or the receipt of consent from the recipient, the transmission of messages is not permitted if: (i) the recipient’s contact details have been obtained by chance; (ii) the sender is informed or should be informed about the recipient’s subsequent refusal of consent; or (iii) the transmission violates any other provision of Liechtenstein law.

Finally, the CA 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 eCommerce information. The Law on electronic commerce dated 16 April 2003 ( "ECG") states that a service provider must always provide users with at least the following information in an easily and directly accessible form: (a) his name or business name; (b) the geographical address at which he is established; (c) information enabling users to contact him rapidly and directly, including his electronic mail address; (d) the commercial register number, if available; (e) where the activity is subject to official supervision, the supervisory authority competent for him; f) in the case of a service provider subject to trade or professional regulations, the chamber, professional association or similar body to which he belongs, the professional title and the Contracting State in which it has been conferred, as well as an indication of the applicable trade or professional regulations and access thereto; (g) the VAT number, if any.

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Marketing by Telephone

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

The CA is also applicable in relation to direct marketing by telephone.

In cases of direct telephone advertising by call or text message, it is important to assess the reasonable expectations of new customers. If the contact data has been voluntarily entered by a customer in a list for advertising purposes, it can be used as such unless the consent is subsequently revoked.

If a potential customer's details have been sourced from a public directory where their details have been voluntarily entered, and such person has not indicated that they should not be contacted for advertising, such advertising is permissible. This is because it can be assumed that the person (whether a natural or a legal person) must reasonably expect their number to be used for advertising purposes.

As with e-mails, in the case of direct advertisement through SMS or fax, it is permissible to contact individuals through an SMS or a fax to request consent for further direct marketing. For such modes of communication, in addition to the data protection law requirement of an explicit reference to a possibility of objection and revocation, such contact must also meet the content requirements under the CA and contain information on the identity of the sender, a valid e-mail and delivery address of the sender and a header clearly describing the content of the message.

As per the CA, direct advertisement is prohibited if the contact data was not obtained through consent from the individual concerned, or if the advertiser was informed, or should have received intimation, of the recipient not consenting to being contacted, or if the contact with the recipient was otherwise in breach of Liechtenstein law.

Liechtenstein also implemented the Distance Selling Act to give effect to several European Regulations including the Directive 2011/83/EU on consumer rights. Under the legislation, direct marketing calls to customers are only permitted if it is obvious that they would not object to that call. This restriction is only applicable to telecommunications between an individual subscriber and a seller of goods or services where such telecommunication is used for the initiating and signing of a contract relating to such goods and services.

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

The same provisions apply. 

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