Czech Republic: Data Protection Laws of the World Handbook: Second Edition - Czech Republic
E-Commerce And Privacy Alert

LAW

The regulation of personal data protection in the Czech Republic is based on Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (the "Data Protection Directive"). The main provisions are contained in the Act no. 101/2000 Coll., on the Protection of Personal Data, as amended ("Act").

DEFINITION OF PERSONAL DATA

Personal data means any information relating to an identified or identifiable data subject. A data subject shall be considered identified or identifiable if it is possible to identify the data subject directly or indirectly in particular on the basis of a number, code or one or more factors specific to his/her physical, physiological, psychical, economic, cultural or social identity

DEFINITION OF SENSITIVE PERSONAL DATA

Sensitive data means personal data revealing nationality, racial or ethnic origin, political attitudes, trade union membership, religious and philosophical beliefs, conviction of a criminal act, health status and sexual life of the data subject, as well as any genetic or biometric data of the data subject.

NATIONAL DATA PROTECTION AUTHORITY

The office for Personal Data Protection ("Office")Pplk. Sochora 27

REGISTRATION

Whoever intends to process personal data as a data controller (or change the already registered processing), shall be obliged to notify this fact in writing to the Office prior to commencing personal data processing (or change of data processing).

The notification must include at least the following information:

• identification details of the data controller (business name, seat and identification number, and name of persons who are statutory representatives of the data controller);
• purpose of processing;
• categories of data subjects and of personal data;
• sources of personal data;
• description of the manner of personal data processing;
• location or locations of personal data processing;
• recipient or category of recipients of personal data;
• anticipated personal data transfers to other countries; and
• description of measures adopted for ensuring the protection of personal data.

If the notification including all required information is accepted by the Office, personal data processing may be started by a data controller after the expiration of 30 days from the delivery of the notification to the Office. In such case the Office records the information stated in the notification in the register of data controllers.

DATA PROTECTION OFFICERS

There is no requirement to appoint a data protection officer stipulated by the Act.

COLLECTION AND PROCESSING

The unequivocal (and revocable) consent of a data subject is required for the processing of personal data. Written consent is not required. However, it is recommended to obtain consent in writing, since the data controller must be able to prove the consent of a data subject during the whole period of the data processing.

Before the consent of the data subject is granted, the data subject must be clearly informed about all the aspects of processing of their personal data.

Personal data may be collected only for processing, or to be processed, if it is adequate, relevant and not excessive in relation to specific purposes for which the data is collected. Personal data may not be used for purposes which are incompatible with the reasons for which the data has been collected.

Personal data collected for different purposes may not be merged.

Personal data must be accurate and maintained up to date and it must accurately reflect the current situation of the data subject. Partially or wholly inaccurate data must be deleted or corrected.

The data controller or data processor must not disclose the personal data of the data subject to any third party without the consent of the data subject except where required or allowed to do so by law.

The personal data must be deleted once it ceases to be necessary or relevant for the purposes for which it was collected. However, where a specific law (e.g. the Archiving Act) sets an obligation on the data controller or data processor to keep personal data for a specific period of time, such data may not be deleted even if the data is no longer needed for the purpose for which it has been collected and processed.

Personal data must be stored in a format which permits the data subject to exercise their rights of access, rectification, cancellation and opposition.

Special protection rules apply in the case of processing certain "sensitive data" relating to ideology, religion, beliefs, trade union membership (this data often appears on the payroll), racial origin, health (e.g. disability, time off work due to illness, maternity leave, etc.) and sex life. Special care is required when collecting and processing such data. Express informed consent is generally required for the collection, processing and transfer of such data.

Since 1 January 2006 special protection rules also apply for the processing of birth numbers. Birth numbers (a 10 digit number sequence containing information about date of birth and sex of the holder) are widely used by businesses as key identifiers (of customers, employees etc.) in databases because they provide unambiguous identification of all Czech citizens. Data controllers need the express consent of data subjects before processing their birth numbers.

TRANSFER

There is a free flow of personal data guaranteed by the Act if personal data is transferred to a member state of the European Union.

As for personal data transfer to other countries, the Act distinguishes several different groups of data transfers.

In the first group, the Act stipulates that personal data may be transferred to other countries if the prohibition to restrict free movement of personal data ensues from an international treaty, the ratification of which was approved by the Parliament and which is binding for the Czech Republic. A typical example of such treaty is the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.

In the second group, a personal data transfer is possible on the basis of a decision of an institution of the European Union, for example Commission Decision pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequate protection of personal data provided in Switzerland, or Commission Decision pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce regarding subjects of the Safe Harbour by the US Department of Commerce. It should be noted that not every American or Canadian subject is covered by the aforementioned decision.

There are also European decisions providing that personal data may be transferred without official approval under the condition that the contract includes certain standard contractual clauses set by those decisions. These decisions are for example Commission Decision on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council, Commission Decision amending Decision 2001/497/EC as regards the introduction of an alternative set of standard contractual clauses for the transfer of personal data to third countries or Commission Decision on standard contractual clauses for the transfer of personal data to third countries, under Directive 95/46/EC.

Neither of the above described ways of transfer of personal data is subjected to an official approval.

In cases other than the two above described ways of transfer of personal data, controllers shall seek a prior permission of the Office to the transfer. For this purpose the controller must prove that:

• the data transfer is carried out with the consent of, or on the basis of an instruction by the data subject;
• in a third party country, where personal data is to be processed, sufficient specific guarantee for personal data protection have been created;
• the personal data concerned is part of a publicly accessible data file on the basis of a special Act or, on the basis of a special Act accessible to someone who proves they have a legal interest;
• the transfer is necessary to exercise an important public interest following from a special Act or from an international treaty binding the Czech Republic;
• the transfer is necessary for negotiating the conclusion or change of a contract, carried out by the data subject, or for the performance of a contract to which the data subject is a contracting party;
• the transfer is necessary to perform a contract between the controller and a third party, concluded in the interest of the data subject, or to exercise other legal claims; or
• the transfer is necessary for the protection of rights or important vital interests of the data subject, in particular for saving lives or providing health care.

SECURITY

The controller and the processor are obliged to adopt measures preventing unauthorised or accidental access to personal data, its alteration, destruction or loss, unauthorised transmission, other unauthorised processing, as well as other misuse of personal data. This obligation remains valid also after termination of personal data processing.

The controller and the processor are also obliged to develop and to document the technical organisational measures adopted and implemented in order to ensure personal data protection in accordance with the Act and other legal regulations.

BREACH NOTIFICATION

There is no mandatory requirement in the Act to report data security breaches or losses to the Office or to data subjects.

ENFORCEMENT

Both data controllers and data processors are potentially liable for any breach of the Act. In case of a breach of the Act, the Office may order measures to be adopted and impose fines. The Office may impose fines of up to 5 million CZK (approx. EUR 175,000). Fines of up to 10 million CZK (approx. EUR 350,000) may be imposed if:

• a substantial number of persons are jeopardised by unauthorised interference in their private and personal life; or
• obligations relating to the processing of sensitive data are breached.

A data subject who considers that there has been personal data processing in breach of the Act is entitled to complain directly to the Office.

ELECTRONIC MARKETING

When dealing with e-marketing, it is necessary to bear in mind that it is quite strictly regulated in terms of Act No. 480/2004 Col. on Some Services of Information Agencies ("ASSIA") as well as other previously mentioned regulations (esp. the Data Protection Directive and the Act).

The ASSIA states that before sending an e-mail containing marketing information, the consent of the receiver must be obtained. Furthermore, each such message must contain clear and visible information that any further sending of such e-mails can be rejected by the receiver together with the sender's contact information and information on under whos name the e-mail is being sent. Last but not least, each such e-mail must contain information that it is a commercial message.

In order to maintain e-marketing as an effective tool, its provider should operate with good-quality databases, which enable a direct targeting of the relevant message. When processing personal data for marketing databases, it is necessary to abide strictly by the Act. All rules described above apply to e-marketing respectively.

ONLINE PRIVACY (INCLUDING COOKIES AND LOCATION DATA)

Online privacy is supervised by the Office. Handling personal data is subject to the similar rules as mentioned above and specific areas are governed by Act No. 127/2005 Coll. on Electronic Communications ("AEC").

Consent to collection and processing of personal data means the consent is made by electronic means (especially by filling in an electronic form).

Public electronic communication service providers are obliged to ensure the security of the personal data they process which includes technical security and creation of internal organizational regulations.

In cases of a breach of the protection of the personal data of an individual, a public electronic communication service provider is obliged to notify the Office, and in the event that breach of protection is capable of affecting privacy of an individual in a serious way, the individual must be notified.

Apart from a few exceptions, traffic data held by a public electronic communication service provider must be erased or anonymised when it is no longer necessary for the purpose of the transmission of a communication.

As regards cookies, the Czech law is still using the "opt-out" principle (the user must be informed and explicitly allowed to refuse the cookies storage). The "opt-in" principle as introduced by the Directive 2009/136/EC has not implemented into the Czech law.

Relevant supervising and enforcing authorities in this area are primarily the Office and to some extent also the Czech Telecommunication Office.

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