Data Protected - Poland
Last updated August 2022
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”).
The Personal Data Protection Act of 10 May 2018 (“New Data Protection Act”) entered into force on 25 May 2018 to help implement the GDPR in Poland.
The old Personal Data Protection Act of 29 August 1997 has been repealed.
Finally, the act amending certain acts in connection with ensuring the application of the GDPR of 21 February 2019 (“2019 GDPR Implementation Act”) has entered into force. The act amended Polish sectoral laws, such as labour, consumer protection, insurance, banking or telecommunication laws, in order to ensure compliance with the GDPR. In total, the 2019 GDPR Implementation Act amended 162 different acts.
Entry into force
The GDPR has applied since 25 May 2018.
The New Data Protection Act has also applied since 25 May 2018.
National Supervisory Authority
Details of the competent national supervisory authority
The New Data Protection Act appointed a new supervisory authority in Poland, namely the President of the Office of Personal Data Protection. This Office replaced the Inspector General for Personal Data Protection which office ceased to exist as of 25 May 2018.
President of the Office of Personal Data Protection (“Office of Personal Data Protection”)
ul. Stawki 2
The President of the Office of Personal Data Protection represents Poland 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).
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.
The European Data Protection Board has issued Guidelines on the concepts of controller and processor in the GDPR (7/2020).
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.
Furthermore, the New Data Protection Act excludes the application of the GDPR in several other fields. Fully exempt are the activities of special forces as well as the processing of personal data by entities of the public finance sector if such processing is necessary for the execution of tasks which are aimed to ensure the national security.
The GDPR is also partially excluded from application in scope of editing, preparing or publishing press materials, and in scope of literary or artistic activities (e.g. there is an exemption to the obligation to provide privacy notices).
Data controllers conducting public services are exempted from complying with certain obligations to provide privacy notices and respond to subject access requests where it is related to performance of public duties and exercising of these provisions may breach the protection of classified information or prevent or significantly obstruct the proper execution of a public service.
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 a third party's legitimate interests, except where overridden by the interests or fundamental rights and freedoms 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 European Data Protection Board has issued Guidelines on consent (5/2020).
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.
Poland has not reduced this age.
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 from the financial and banking sector have an explicit right to check criminal records with respect to certain employees and job applicants, including employees employed in, and job applicants applying for, a position requiring access to confidential data or making high risk decisions.
The 2019 GDPR Implementation Act updated the list of categories of personal data of employees and job applicants which can be processed by the employers or potential employers. The 2019 GDPR Implementation Act excluded from this list categories of personal data such as the parents’ names, while adding new categories such as employee’s contact data. The consent of an employee or a job applicant may constitute a valid legal basis for personal data processing in some cases and would fall within the scope provided for in the amended Labour Act.
The 2019 GDPR Implementation Act also included provisions on employee monitoring. It is strictly prohibited to monitor the premises entrusted to trade union organisations. It is also prohibited to monitor sanitary rooms, cloakrooms, canteens and smoking rooms, unless the monitoring in these rooms is necessary to ensure the safety of employees, the security of the property, the production control, or to keep the confidentiality of the information, disclosure of which could expose the employer to harm.
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 decision in OT (C-184/20) might suggest this should be interpreted broadly to include publication of information that indirectly discloses these characteristics.
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.
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.
In addition, new legislation concerning processing information about criminal offences in the financial sector has been in force since June 2018. It gives employers from the financial and banking sector an explicit right to check criminal records with respect to certain employees and job applicants, including employees employed in, and job applicants applying for, a position requiring access to confidential data or making high risk decisions. It includes a broad list of financial sector entities which fall within the scope of its application and sets out the specific requirements for processing information about criminal offences of job applicants and employees.
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, Poland 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.
The President of the Office of Personal Data Protection has published a list of processing operations requiring a data privacy impact assessment (“DPIA List”). The current version of the DPIA List is available here (in Polish).
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).
In Poland, the obligation to provide information to data subject in Polish does not result from New Data Protection Act. Please note however that pursuant to the Act on Polish Language any communication with the consumers must be in Polish, so any privacy notices directed at consumers must be in Polish. The same applies to employment relationships.
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 right to obtain a copy of personal data should not adversely affect the rights and freedoms of others. The response must be provided within a month, though this can be extended by two months if the request is complex.
The European Data Protection Board has issued draft Guidelines on rights of access (1/2022).
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) and the European Data Protection Board has issued Examples regarding Personal Data Breach Notification (1/2021).
Pursuant to the New Data Protection Act the President of the Office of Personal Data Protection may introduce an online system enabling controllers to report personal data breaches. The President of the Office of Personal Data Protection has created such system which enables notification of personal data breach in electronic form. More information on the data breach notification procedure can be found here (in Polish).
Transfer of Personal Data to Third Countries
Restrictions on transfers to third countries
The GDPR contains a restriction on transborder dataflows. This restriction does not apply if the transfer is to a whitelisted country.
Transfers can be made: (i) pursuant to a set of Standard Contractual Clauses; ; (ii) pursuant to binding corporate rules; (iii) to an importer who has signed up to an approved code or obtained an approved certification; or (iv) where otherwise approved by the relevant supervisory authority. However, following the decision in Schrems II (C-311/18) any transfer made on this basis must be subject to a transfer impact assessment of the laws of the relevant third country and supplemented by supplementary protections where necessary.
The European Data Protection Board has issued Recommendation on European Essential Guarantees for surveillance measures (2/2020) and a Recommendation on measures to supplement transfer tools (1/2020) to help conduct this transfer impact assessment. The European Commission has also issued an FAQ on the new Standard Contractual Clauses.
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 European Data Protection Board has issued Guidelines on derogations applicable to international transfers (2/2018). Finally, the European Data Protection Board has issued draft Guidelines on the interplay between Article 3 and international transfers (2/2018) to help identify when a transfer takes place.
Notification and approval of national regulator (including notification of use of Standard Contractual Clauses)
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 Standard Contractual Clauses(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.
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 EDPB has published new draft Guidelines on the calculation of administrative fines (04/2022).
The New Data Protection Act lowers the level of these administrative fines for public authorities. The fines for public authorities cannot exceed 100,000 PLN (approximately EUR 21,000).
The New Data Protection Act also introduces criminal fines that can be imposed on an individual as a result of a criminal conviction for criminal offences related to data protection, such as unlawful data processing or hindering inspection proceedings. Their value is determined by the Polish Criminal Code.
The New Data Protection Act also provides that persons who process personal data unlawfully or without authorisation face a criminal fine, restriction of personal liberty or imprisonment of up to two years (three years if such processing concerns special categories of data).
A criminal fine, restriction of personal liberty or imprisonment of up to two years may also be imposed as a criminal sanction for hindering inspection proceedings.
Data subjects have a right to compensation in respect of material and non-material damage.
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.
Fines: Some of the most significant fines issued in Poland are set out below:
- In January 2022, Fortum Marketing and Sales Polska S.A. was fined €1,080,000 for not having the correct security measures in place which resulted in a data breach. The data involved was not correctly pseudonymised or encrypted which would have provided an adequate level of data security. The data breach resulted from the data processor’s actions. Furthermore, Fortum Marketing and Sales Polska S.A., acting as a controller, did not verify its processor prior to entering into a data processing agreement, nor did they use their audit rights the GDPR. The data processor was also fined €55,000 for this breach.
- In December 2020, ID Finance Poland Sp. z o.o. w likwidacji (owner of a lending platform MoneyMan.pl) was fined €250,000 for providing an unauthorised access to personal data of 140,699 customers. This occurred during a server restart where the settings of the software responsible for the server's security were reset, as a result of which the personal data on the server was made publicly available. The controller did not respond adequately to the signals about gaps in its server’s security. The database was downloaded and deleted by an unidentified third party, which requested ransom for its return. In the opinion of the President of the Office of Personal Data Protection, the controller should maintain the ability to quickly and effectively identify any security breaches in order to be able to take appropriate action.
- In December 2020, Virgin Mobile Polska was fined €460,000 for failing to implement appropriate technical and organisational measures that would ensure an adequate level of IT security. Owing to this, they suffered a data breach whereby the personal data of 114,963 customers was accessed by an unauthorised person, in the scope of name and surname, PESEL registration number, series and number of ID card, telephone number and NIP number. Due to the scope of the personal data disclosed, the breach resulted in a high risk to the rights and freedoms of natural persons.
- In September 2019, Morele.net was fined €660,000 for insufficient organisational and technical safeguards, which according to the President of the Office of Personal Data Protection did not prevent the violation of the integrity of the Morele.net platform against organized hacker attacks in November and December 2018. As a result of these attacks, personal data (including PESEL number) of over 2.2 million of Morele.net’s clients were stolen, and hackers carried out attempts to extort fake payments.
- In March 2019, Bisnode, a digital marketing company was fined €220,000 for not notifying data subjects it had acquired their personal data through data scraping methods. The data protection authority ordered the company to reach out directly to these individuals, stating that a notice on its website would not be sufficient notification. It is to be noted that the company had reached out to 679,000 persons whose email addresses it had access to, but did not reach out directly to the data subjects in relation to the 5.7 million other records, which it had estimated would cost it €8 million.
Other enforcement action: According to the Office of Personal Data Protection, there were 12 inspections conducted in 2020. The low number of inspections in 2020 (for comparison, in 2019, 98 inspections took place) was caused by the Covid-19 pandemic. Furthermore, in 2020 the Office of Personal Data Protection received 6,442 complaints regarding infringement of data protection laws.
ePrivacy | Marketing and cookies
The Act on the Provision of Services by way of Electronic Means, dated 18 July 2002 (Journal of Laws of 2020, Item 344, as amended, the “ECA”), which entered into force on 10 March 2003, and the amended Telecommunications Law, dated 16 July 2004 (Journal of Laws of 2021, Item 576, as amended, the “TL”), the majority of which entered into force on 3 September 2004, together implemented Article 13 of the Privacy and Electronic Communications Directive.
The ECA and TL were amended to implement the amendments to the Privacy and Electronic Communications Directive.
The draft Electronic Communications law was published in late 2020 and submitted for public consultation in Poland. However, it has not yet been adopted by the Parliament.
The main purpose of the new law is to implement the EU Directive 2018/1972 on European Electronic Communications Code. The law will replace the TL and will be wider in scope, covering not only the telecom sector but all other forms of electronic communications. It will regulate matters related to the rights and obligations of electronic communications entrepreneurs, “over-the-top” (OTT) services, network security, processing of data, direct marketing, and cookies. The time limit for the transposition of the EU Directive has been extended from 21 December 2020 to the second half of 2022.
According to the TL’s provision on cookies, it is necessary to provide users with information relating to: (i) the purpose of storing and obtaining access to information; and (ii) the ability of the user to determine the conditions of storage or access using software settings or by configuring the service. Once the information is provided and the user grants consent, the cookies can be used. A user may express their consent by means of the service configuration or the settings of their software or browser.
Conditions for direct marketing by e-mail to individual subscribers
Direct marketing by e-mail is authorised if the recipient gave his prior consent to receiving such e-mails, in particular by disclosing his e-mail address for that purpose. The consent cannot be presumed and can be revoked at any time. According to recent rulings of Polish courts, such consents should also be separated from consent regarding general processing of personal data.
Conditions for direct marketing by e-mail to corporate subscribers
As of December 2014 provisions on direct marketing by e-mail are also applicable to corporate subscribers.
Exemptions and other issues
The ECA imposes a range of conditions on any direct marketing, including a requirement that the entity sending the marketing material identify itself and provide an e-mail address.
The sender must also include the eCommerce information.
Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)
Direct marketing by telephone is permitted if certain conditions are fulfilled, including restrictions imposed by the Law on Counteracting Unfair Market Practices, dated 23 August 2007 (Journal of Laws 2016 No. 3, as amended, the “CUMP”), and particularly those in relation to aggressive marketing practices. It should also be noted that according to the TL the use of the telephone for the purpose of direct marketing is permitted solely upon the recipient’s prior consent.
Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)
As of December 2014 the rules on direct marketing by telephone are also applicable in relation to corporate subscribers.
Exemptions and other issues
No exemptions apply.