Even though Romania has only been a member of the European Union since 1 January 2007, the EU Data Protection Directive 95/46/EC was implemented into national legislation in November 2001 through Law no 677/2001 on the protection of individuals with regards to the processing of personal data and the free movement of such data ("Data Protection Law").
DEFINITION OF PERSONAL DATA
"Personal Data" is defined under the Data Protection Law as any information referring to an identified or identifiable natural person. An identifiable person is one who can be identified either directly or indirectly by referring to a personal identification number or to one or several distinctive factors that are typical for the physical, physiological, mental, economic, cultural or social identity of the respective person.
DEFINITION OF SENSITIVE PERSONAL DATA
Under the Data Protection Law, the following categories of data are deemed as sensitive personal data (data presenting special risks): (i) data regarding racial or ethnical origin; (ii) political, religious, philosophical or other similar beliefs; (iii) affiliation to certain unions; (iv) physical or mental health condition; (v) sexual life; (vi) criminal or administrative offences.
Moreover, according to the template notification form issued by the National Supervisory Authority for Personal Data Processing, genetic, biometric data, national identification number, series and number of identification documents are also qualified as sensitive personal data.
NATIONAL DATA PROTECTION AUTHORITY
National Authority for the Surveillance of Personal Data Processing (in romanian "Autoritatea Nationala de Supraveghere a Prelucrarii Datelor cu Caracter Personal" or "ANSPDCP").
ANSPDCP operates the national registry of data controllers which can be accessible online free of charge. All public and private entities processing personal data must notify ANSPDCP in respect of their personal data processing with at least 30 days in advance and obtain a data controller number, unless an exemption applies.
Based on the standard notification form issued by ANSPDCP, the notification should include the following information:
- the personal data that are being processed (both sensitive and non-sensitive);
- the purpose of processing;
- the categories of targeted data subjects;
- the categories of recipients;
- information regarding the transfer outside Romania, either within the European Economic Area, to states whose level of protection has been considered as adequate by the European Commission or to other third party countries;
- identification details of entities acting as processors on behalf of the data controller;
- the manner in which data subjects are informed regarding their rights: verbally, via a website, or through a document (in which case it must be enclosed);
- the estimated duration of personal data processing; and
- data security measures. In this sense, the notification must include the security policy of the data controller describing the measures undertakes in order to ensure the security of the personal data processed.
Should the controller process personal data for various purposes, a notification must be filed separately for each purpose, unless such purposes can be correlated.
The notification procedure involves two stages. The first step is to file the online application. The second step is to send by post to ANSPDCP the first page of the notification stamped and signed by the legal representative of the data controller.
Once registered in the general registry, each data controllers shall be allocated a registration number which must be indicated in all official documents of the respective entity relating to the declared purpose of processing.
DATA PROTECTION OFFICERS
Currently, there is no requirement in Romania for data controllers to appoint a data protection officer.
COLLECTION AND PROCESSING
Under Data Protection Law, data controllers may collect and process personal data provided that the data subject has expressly and unequivocally consented thereto. The data subject's consent is not required under the following circumstances:
- the processing is necessary for the performance of a contractual or pre-contractual arrangement where the data subject is a party;
- where the data controller needs to protect the life, physical integrity or health of the data subject or another person;
- the data controller must comply with a legal obligation;
- the processing is necessary for the performance of public interest measures;
- the data controller has a legitimate reason for processing, provided that fundamental civil liberties of data subjects are not breached; or
- processing is performed exclusively for statistical, historical or scientific research purposes.
Where sensitive data is processed, apart from the above conditions, data controllers must comply with additional requirements, depending on the specific type of sensitive data in question.
Data controllers must ensure that the data processed are proportional in relation to the declared purpose of processing, and not excessive.
Data subjects must be thoroughly informed in respect of data processing activities. They must be provided with the following information:
- identity of the data controller and its representative;
- purpose of data processing;
- recipients of personal data and transfer abroad;
- rights provided by law in favour of data subjects as well as their manner of exercise; or
- the consequences of the refusal to provide personal data.
Different rules shall have to be observed depending on the destination country of such personal data. While personal data transfers outside within the EEA (or to countries with an adequate level of protection) must only be notified to AMSPDCP, transfer to third party countries outside the EEA requires an authorization from ANSPDCP.
If the personal data is transferred to another EU Member State, no other requirement must be met other than ticking the appropriate box in the on line notification form.
In case the data is transferred to a country with an adequate level of data protection (i.e. USA, Argentina, Canada, Switzerland, Jersey, Guernsey, Isle of Man), such countries shall have to be explicitly listed in the on line notification form.
In case the data is transferred to a third party country which is not included in either of the above categories, the transfer is permitted provided that the controller has obtained data subject's consent, or in case it has concluded a data transfer agreement with the recipient of data located in the respective third country. This contract must be submitted with ANPDCP for its review.
For the transfer of data to the United States, compliance with the US/EU Safe Harbor principles satisfies the requirements of the Data Protection Law.
ANSPDCP does not recognize intra-group international data transfers based on Binding Corporate Rules.
Data controllers and data processors must take appropriate technical and organizational measures to protect personal data against unauthorised or unlawful access or processing and against accidental or unlawful loss or destruction alteration, unauthorised disclosure or access to personal data, in particular where the processing involves the transmission of data over a network, and against all forms of illegal processing.
The measures taken must ensure a level of security appropriate to the nature of the data.
Minimum security measures that data controllers must comply with are described in Order no 52/2002 issued by the Romanian Ombudsman.
Data controllers must ensure that when processing data through data processors, the latter have also agreed to comply with data security obligations.
There is not yet a mandatory requirement in the Data Protection Law to report data security breaches or losses to ANSPDCP or to data subjects.
ANSPDCD is entitled to investigate any breach of Data Protection Law ex officio or following a complaint filed by a prejudiced data subject. In this sense, ANSPDCP may perform an audit over data processing activities performed by data controllers.
ANSPDCP may impose administrative fines for failure to comply with the Data Protection Law, ranging from approximately EUR 115 to EUR 11,400 (the highest sanction is applied for failure to comply with security measures). The level of fines is higher in case of failure to comply with the regulations in the electronic communications sector, as further detailed below.
Under certain conditions, failure to comply with Data Protection Law may be considered as a criminal offence, in which case ANSPDCP shall contact the competent criminal authorities.
In addition to this, ANSPDCP may impose the temporary suspension of data processing activities as well as the partial or complete deletion of processed data.
According to Data Protection Law, data subjects must be granted the right to oppose to the processing of their personal data for direct marketing purposes (opt-out). The processing of personal data for electronic marketing purposes is further regulated under Law no. 506/2004 on the processing of personal data in the electronic communications sector implementing Directive 2002/58/CE ("Law 506/2004"). According to this law, it is forbidden to send commercial communications by using automatic systems that do not require the intervention of a human operator, by fax or electronic mail or any other similar method, except where data subjects have expressly consented in advance. It may be considered that SMS marketing falls under the same restrictions.
Moreover, cases where the data controller has directly obtained the e-mail address of a data subject upon the sale or provision of a certain service towards the latter, the controller may use the respective address for the purpose of sending electronic communications regarding similar products or services, provided that data subjects are clearly and expressly offered the possibility to oppose by way of an easily accessible and free of charge method, not only when the e-mail address is collected but also with each commercial communication received by the data subject.
ANSPDCP has not issued any specific guidelines in relation to electronic marketing.
ONLINE PRIVACY (INCLUDING COOKIES AND LOCATION DATA)
The processing of traffic data, location data and the implementation of cookies are dealt with under Law 506/2004.
Traffic data – Traffic Data relating to subscribers and users processed and stored by the provider of a public communications network or publicly available electronic communications service must be erased or made anonymous when it is no longer needed for the purpose of the transmission of a communication.
However, traffic data may be retained for the purpose of marketing the services offered to data subjects, or in view of the provision of value added services, solely throughout the marketing period and provided that data subjects have consented to the processing of traffic data.
The processing of traffic data for billing purposes or the establishment of payment obligations for interconnection is permitted solely for a period of three years following the due date of the respective payment obligation.
Data subjects may withdraw their consent at any time.
The provider of electronic communication services must inform data subjects in respect of the processed traffic data, and the duration of processing, prior to obtaining their consent.
Communication service providers and entities acting under their authority may process traffic data for:
- management of billing and traffic;
- dealing with enquiries of data subjects;
- prevention of fraud; or
- the provision of communication services or value added services.
Location data – The processing of such data is permitted in one of the following instances:
- data is rendered anonymous;
- data subjects have consented to such processing for the duration necessary for the performance of value added services; or
- when the purpose of the value added service is the unidirectional and non-differentiated transmission of information towards users.
The service provider must inform the users or subscribers, prior to obtaining their consent, in respect of the type of location data which will be processed, of the purposes and duration of the processing and whether the data will be transmitted to a third party for the purpose of providing the value added service. Users or subscribers shall be given the possibility to withdraw their consent at any time.
Where consent of the users or subscribers has been obtained for the processing of location data other than traffic data, communication service providers must grant users the possibility, using a simple means and free of charge, of temporarily refusing the processing of such data for each connection to the network or for each transmission of a communication.
Cookies – The storing of cookies on user terminals is permitted subject to the following cumulative conditions:
- users have expressly consented thereto; (Law 506/2004 also provides that consent may be given by way of browser settings or other similar technologies); and
- the information requirements provided by Data Protection Law have been complied with in a clear and user-friendly manner, to include references regarding the purpose of processing of the information stored by users.
Should the service provider allow the storing of third party cookies within a users' computer terminal, they will have to be informed about the purpose of such processing and the manner in which browser settings may be adjusted in order to refuse third party cookies.
Consent is not required where cookies are:
- used for the sole purpose of carrying out the transmission of a communication over an electronic communications network; or
- strictly necessary for the provision of a service requested by the user.
Failure to comply with the requirements of Law 506/2004 is classified as a minor offence and is sanctioned with fines ranging from EUR 1,140 to EUR 22,700. In case of companies whose turnover exceeds approximately EUR 1,140,000, the amount of fines may reach up to 2% of the respective company's turnover.
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