Data Protected - Slovenia
Contributed by Petra Smolnikar Law
Last updated March 2024
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 new Slovenian Data Protection Act (“ZVOP-2”) helps ensure the implementation of the GDPR in a systematic manner and repeals the previous Data Protection Act (“ZVOP-1”).
ZVOP-2 is largely based on the GDPR and borrows defined terms from both the GDPR and the Data Protection Directive. However, in some areas it provides further detail about the operation of the GDPR.
Entry into force
The GDPR has applied since 25 May 2018.
ZVOP-2 entered into force on 26 January 2023.
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National Supervisory Authority
Details of the competent national supervisory authority
Pursuant to ZVOP-2, the Information Commissioner continues to act as the supervisory authority in Slovenia.
The Information Commissioner (Informacijski pooblaščenec) (the “Commissioner”)
Dunajska 22
SI-1000 Ljubljana
Slovenia
The Commissioner represents Slovenia 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
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.
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.
ZVOP-2 introduces specific provisions concerning the processing of personal data for scientific research, historical research, statistical and archival purpose; processing of personal data using biometrics and genetic data and provisions for processing of personal data in the exercise of the right to freedom of expression, speech and publicity, press and other forms of public information. Additionally, ZVOP-2 also contains special protections for personal data of deceased individuals.
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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 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.
Pursuant to ZVOP-2, a child can provide a valid consent from the age of 15. If the child is under 15 years of age, the consent is valid only if it is given or authorised by one of the child’s parents, the child’s guardian or by the person to whom parental care has been granted.
Furthermore, the child’s consent should not be subject to excessive conditions on the part of the controller, such that the child would be required to provide more personal data than is necessary for the purpose of providing that consent.
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.
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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 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.
ZVOP-2 provides that another act (the Act on the Protection of Personal Data in the Area of Treatment of Criminal Offences) shall specify: (i) the purpose of the processing, including the association (which must be in the public interest); (ii) the types of data processed; (iii) the data subjects; (iv) the persons to whom the personal data may be disclosed; (v) the purpose limitations; and (vi) the retention period, including measures to ensure lawful and fair processing.
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).
Data protection officers must also be appointed where required by national law. Pursuant to ZVOP-2, a data protection officer must be appointed: (i) in accordance with the GDPR; (ii) by controllers and processors in the public sector; and (iii) by controllers and processors that process personal data identified in Article 23 of ZVOP-2 (e.g. where processing pertains to 100,000 or more individuals; or where the predominant type of processing relates to special categories of personal data etc.).
Other controllers and processors may voluntarily appoint a data protection officer.
What are the duties of the data protection officer?
The data protection officer must be involved in all data protection issues and cannot be dismissed or penalised for performing their role. The data protection officer must report directly to the highest level of management. 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 (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.
Pursuant to ZVOP-2, an impact assessment must be carried out in accordance with the GDPR to assess the risk of processing personal data in relation to the protection and realisation of personal data protection rights. It must be carried out for: (i) the processing of personal data specified in the laws governing administrative internal affairs, financial administration, citizenship, the Slovenian Intelligence and Security Agency, defence, health care, compulsory health insurance, the exercise of rights deriving from public funds, and criminal and criminal offence records; (ii) when the personal data of more than 100,000 individuals is processed; (iii) when the controller or processor carries out large-scale processing of special categories of personal data as its core activity; or (iv) when special category personal data of more than 10,000 individuals is processed.
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Rights of Data Subjects
Privacy notices
A controller must provide data subjects with a privacy notice setting out how the individual’s personal data will be processed. The privacy notice must contain the enhanced transparency information.
The Article 29 Working Party has issued Guidelines on Transparency (WP260).
In Slovenia, in order to comply with the Public Use of the Slovene Language Act, legal entities in the public and private sectors must use the Slovenian language in all communications with others in the territory of the Republic of Slovenia. When corresponding with foreigners, a foreign language may be used in addition to Slovenian.
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 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.
Other rights
The GDPR contains a range of other rights, including a right to have inaccurate data corrected. There is also a right to object to processing being carried out in the performance of a public task or under the legitimate interests condition.
Finally, there are controls on taking decisions based solely on automated decision making that produce legal effects or similarly significantly affects the data subject. The Article 29 Working Party has issued Guidelines on Automated Decision Making and Profiling (WP251).
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Security
Security requirements in order to protect personal data
The GDPR contains a general obligation to implement appropriate technical and organisational measures to protect personal data.
In addition, controllers and processors must ensure, where appropriate: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of its information technology systems; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
Specific rules governing processing by third party agents (processors)
A controller must ensure that any processor it instructs will ensure adequate security for personal data and otherwise meet the requirements of the GDPR.
The controller must have written contracts with its processor containing the enhanced processor clauses.
Notice of breach laws
A personal data breach must be notified to the relevant supervisory authority unless it is unlikely to result in a risk to data subjects. The notification must, where feasible, be made within 72 hours. If the personal data breach is a high risk for data subjects, those data subjects must also be notified.
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 European Data Protection Board has issued Guidelines on Personal Data Breach Notification (9/2022) and Examples regarding Personal Data Breach Notification (1/2021).
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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. 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 that 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.
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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.
Fines can only be imposed where there is an intentional or negligent infringement of the GDPR, see Deutsche Wohnen (C-807/21).
The EDPB has published Guidelines on the calculation of administrative fines (04/2022).
Imprisonment
ZVOP-2 does not impose imprisonment for breaches of its provisions, but merely fines. However, pursuant to the Slovenian Criminal Code, whoever makes personal data available to the public or publishes it publicly without any basis in law or the personal consent of the data subject, shall be liable to a fine or to imprisonment for up to one year. A person who makes sensitive personal data public or publicly available, shall be imprisoned for up to two years.
Compensation
Data subjects have a right to compensation in respect of material and non-material damage. This requires more than a mere infringement of the GDPR and there must be actual material or non-material damage, however there is no minimum threshold of seriousness before compensation is available, see Österreichische Post (C-300/21).
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
In January 2023, ZVOP-2 finally came into force and repealed ZVOP-1. According to the Information Commissioner, the very late adoption of the ZVOP-2 negatively impacted its ability to impose sanctions for breach of data protection laws.
There was a trend during 2021 of increasing reports of breaches of data protection law. Examples include the Information Commissioner accepting 1,360 reports/summons to take action, and nine cases of unauthorised communication or other unauthorised processing of patients personal data, under the Patient’s Rights Act.
There are also 313 complaints about violations of individual’s rights. This includes 226 appeals from individuals about violations of the right of access to their own personal data, three appeals for breach of the right to rectification and 29 appeals for infringement of the right to erasure of personal data.
The Information Commissioner noted, when dealing with these complaints, that the responsiveness of controllers was often inadequate and that many controllers are not aware of their obligations under constitutional and data protection law.
The Information Commissioner received over 100 official reports of personal data in 2021.The most frequent causes were: (i) breaches arose from sending personal data to unauthorised or wrong persons,; (ii) unlawful access to personal data due to program errors or misuse of authorisations by employees,; (iii) attacks on the information system through viruses and cryptographic means; and (iv) the loss or theft of carriers of personal data. Generally, there have been a lot of attacks to information systems.
The year 2021 was marked by an increase in the number of requests for opinions from the Information Commissioner on measures to address Covid-19. The Information Commissioner provided advice to 3,647 individuals and legal entities. It issued 1,471 written opinions and referrals for opinions.
In 2022, the Information Commissioner responded to 275 written requests for informal opinions and assistance. In addition, it responded to 838 telephone calls requesting for assistance, which is a popular practice in Slovenia. In 2022, the Information Commissioner led 1,030 of inspectorial matters, of which 282 were in the private sector and 748 in the public sector. The Information Commissioner initiated an inspectorial procedure in 999 cases. Most frequently, this related to suspicions of unlawful disclosure or transfer of personal data to unauthorised persons and the unlawful publication of personal data, the unlawful collection or requesting of personal data and unlawful video surveillance.
More than 2,500 entities appointed data protection officers by the end of 2021, and 2,951 by the end of 2022.
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ePrivacy | Marketing and cookies
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National Legislation
ePrivacy laws
Slovenian ePrivacy laws are mainly contained in: (i) the ZVOP; (ii) the Slovenian Consumer Protection Act (Zakon o varstvu potrošnikov, UL RS No. 98/04, 114/06 – ZUE, 126/07, 86/09, 78/11, 38/14, 19/15, 55/17 – ZKolT in 31/18); (iii) Electronic Commerce Market Act (Zakon o elektronskem poslovanju na trgu, UL RS No. 96/2009 and 19/2015, 189/21 – ZDU-1M) (the "ZEPT"); and (iv) the Slovenian Electronic Communications Act (Zakon o elektronskih komunikacijah, UL RS No. 130/22 in 18/23 - ZDU-1O (the “ZEKom-1”) and implemented the Privacy and Electronic Communications Directive.
The public authority entrusted with the supervision of the effective execution of the respective provisions of ZEKom-2 is the Agency for Communicational Networks and Services of the Republic of Slovenia (Agencija za komunikacijska omrežja in storitve Republike Slovenije) (the “Agency”), being the legal successor of the (former) Slovenian Electronic Communications Agency (Agencija za Posto in Elektronske Komunikacije).
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Cookies
Conditions for use of cookies
The ZEKom-2 contains specific cookies regulations. The use of cookies is only allowed if the subscriber or user has given his or her consent, having been provided with clear and comprehensive information on the controller and on the purpose of processing of this data in accordance with ZVOP-2. An exception is provided: (i) where such use is necessary for the transfer of the message by means of the electronic communication network; or (ii) if it is necessary for the provision of an information society service requested by the subscriber or the user. Consent by the user may be given based on browser settings where technically feasible and effective and in accordance with ZVOP-2.
Regulatory guidance on the use of cookies
The Commissioner has issued comprehensive guidelines on the use of cookies.
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Marketing by E-mail
Conditions for direct marketing by e-mail to individual subscribers
Direct marketing by e-mail is governed by the sector-specific ZEKom-2 and is generally permitted only with the subscriber’s or user’s prior consent.
Conditions for direct marketing by e-mail to corporate subscribers
The prior consent of the corporate subscribers for direct marketing by e-mail is no longer required. However, the eCommerce information must be presented to the addressee.
Exemptions and other issues
ZEKom-2 allows direct marketing by e-mail where the similar products and services exemption applies. The sending of e-mail for purposes of direct marketing which: (i) disguises or conceals the identity of the sender on whose behalf the communication is made; or (ii) is sent without a valid address, to which the recipient may respond, is prohibited. The sender must also include the eCommerce information.
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Marketing by Telephone
Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)
Pursuant to ZEKom-2, direct marketing by telephone to individual subscribers is possible only with the consent of the subscriber or user. Refusal of consent must be free of charge to the subscriber or user concerned. The Information Commissioner emphasises that only an active and freely given, specific, informed and unambiguous prior consent of the individual is considered valid consent.
Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)
Prior consent is no longer needed for direct marketing by telephone to corporate subscribers. However, the eCommerce information must be presented to the addressee.
Exemptions and other issues
Refusal of consent must be free of charge to the subscriber or user concerned._____________________________________________________________________ Top