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

LAW

As a member of the European Union, Spain formally implemented the EU Data Protection Directive 95/46/EC in November 1999 with the Special Data Protection Act 1999 (the "Act", also known as the "LOPD" in Spain). Nevertheless, from 1992, Spain already had a Data Protection Act ("LORTAD") that was fully consistent with most of the contents of the EU Data Protection Directive 95/46/EC. The Act, simply represents an up-to-date version of LORTAD, rather than being a major change in the legal framework. Enforcement is through the Spanish Data Protection Commissioner's Office ("AEPD"). Its last amendment took place in March 2011.

DEFINITION OF PERSONAL DATA

Any information (including numbers, text, graphics, pictures, video, sounds or any other type of data) related to individuals that are identified or identifiable.

DEFINITION OF SENSITIVE PERSONAL DATA

Personal data related to political orientation, religion, beliefs, trade union membership, ethnic origin, health and sex life. Each category of sensitive information enjoys, however, a different level of protection. Of note, criminal/administrative infringements data can be included only in the databases of certain public authorities and companies, with individuals being forbidden to do so, whilst other categories allow collection and processing under certain conditions.

NATIONAL DATA PROTECTION AUTHORITY

The Spanish Data Protection Commissioner's Office ("AEPD", standing in Spanish for "Agencia Española de Protección de Datos"). It is based in Madrid. Regional commissioners exist as well in certain territories, dealing only with data protection issues of the regional public authorities themselves.

REGISTRATION

Unlike other EU Member States, Spain does not maintain a register of controllers or of processing activities. Instead, the AEPD holds a registry of databases containing personal information. Registration, carried out through state of the art software provided by the AEPD (called NOTA), is very detailed and identifies in full not only the data controller, but also any data processors supporting it. It contains a clear description of the database contents, the sources of the data, the purposes for which the data is collected, processed and transferred, as well as the identity of the recipients of the information, with special attention paid to international transfers. Any changes to the database require the registration to be amended.

DATA PROTECTION OFFICERS

Although there is no blanket requirement in Spain for organisations to appoint a data protection officer as such, organisations handling personal information to which "medium" or "high" security requirements apply shall appoint a Head of Data Security. The Head of Data Security is not in charge of data protection matters in general, but only the security measures to be applied to databases.

COLLECTION AND PROCESSING

Data controllers may collect and process personal data when any of the following conditions are met:

• the data subject consents;
• the data controller needs to process the data to enter into or carry out a contract or pre contractual deal to which the data subject is a party so that the contract or deal can be maintained or executed;
• the data is collected from "public open sources" and the processing is necessary to satisfy a legitimate interest of the data controller or a third party receiving the data, provided that the constitutional basic rights of the data subject are preserved;
• the processing protects the data controller's vital interests; or
• the processing is required by an enactment or to legitimately perform a public function in the public interest.

Where sensitive personal data is processed, one of the above conditions must be met plus one further condition from a separate list of more stringent conditions (explicit and written consent in the case of political, moral and religious beliefs and trade union membership or explicit consent from the data subject plus general interest grounds supported by a law, in the case of ethnic origin, health and sex life).

Whichever of the above conditions is relied upon, the data controller must provide the data subject with "fair processing information". This includes the existence of a database storing his/ her personal data, the identity and address of the data controller, the purposes of processing, the consequences of supplying/refusing to supply the information, whether it is mandatory or not to supply the information requested, and how the data subject may exercise the rights of access, modification, cancellation and objection to the data.

TRANSFER

Data controllers may transfer personal data to third parties (group companies being considered third parties for this purpose) if any of the following conditions are met:

• the data subject consents;
• the transfer is endorsed by a law;
• the data is collected from "public open sources";
• the transfer to a third party is essential to a contract to which the data subject has become freely and legitimately a party;
• the transfer is intended for the national or regional Ombudsman ("Defensor del Pueblo"), Public Prosecutor, Judges and Courts, and the Public Finances Court, within their legal faculties;
• the transfer takes place between public bodies and is intended for historical, statistical or scientific research; or
• the transfer is urgently needed to protect the health of the data subject or other individuals.

Consent can be revoked at any time and will be void if the information provided to the data subject did not allow them to determine the purposes for which the data should be used, or the scope of the activities of the recipient.

These principles apply to transfers within Spain or within the European Economic Area. Transfers of a data subject's personal data to non EU/European Economic Area countries is similarly allowed under the following circumstances: those countries provide "adequate protection" for the security of the data (e.g. Argentina); if the transfer takes place under a Treaty to which Spain is a party; if it is intended to provide or to request international judiciary cooperation; if the transfer is required for serious medical matters, if it refers to international money transfers; if the data subject consents to it in a unequivocal manner; if the transfer is necessary to execute a contract or a pre-contractual deal between the data subject and the data controller upon a request of the former; if the transfer is necessary to execute, in the interests of the data subject, a contract between the data controller and a third party; if the transfer is necessary to protect a public interest; if the transfer is necessary for the enforcement, exercise or defence of a right at court; or if the transfer takes place from a Public Registry for a legitimate purpose and to a legitimate recipient, following the instructions of a legitimated person.

In any other case, the transfer abroad to non-adequate territories must be authorised in advance by the AEPD (the use of "standard contractual clauses" approved by the European Commission, or the implementation of Binding Corporate Rules easing the granting of such approval).

For the transfer of data to the United States, compliance with the US/EU Safe Harbor principles satisfies the requirements of the AEPD. Consent clauses, however, are deemed valid only if they explicitly mention that the recipient is based in the US and that data protection laws there do not offer a level of privacy protection equivalent to that applied within the EU.

SECURITY

Data controllers and processors must take appropriate technical and organisational measures against unauthorised or unlawful access or processing, and against accidental loss or destruction of, or damage to, personal data. The measures taken must ensure a level of security appropriate to the nature of the data. "Basic" security measures must be applied to all data, and include, inter alia, control of access to data by employees of the data controller. "Medium" security measures must be applied to data relating to financial services, public security, public tax matters or which may allow data controllers to profile a data subject in detail. These measures include, inter alia, the execution of privacy audits every two years and the appointment of a Head of Data Security. Databases containing sensitive information (as well as data relating to gender violence, and police records) require "high" security measures, including, inter alia, tougher access control and data encryption when communicating the data.

BREACH NOTIFICATION

As of yet, there is no mandatory requirement in the LOPD to report data security breaches or losses to the AEPD or to data subjects. Nevertheless, the organisation is required to record such incidents in the Security Incidents Ledger. The AEPD is entitled to request to see the Security Incidents Ledger at any time. As a matter of fact, Police Forces and Public Offices do normally immediately report to the AEPD any data breach or loss of personal data they may be informed about (e.g. when a claim for the theft of a hard disk is filed by the owner). In March 2012, the Spanish General Telecommunications Act was amended to oblige telecommunications operators to rapidly report data breaches to AEPD and to the relevant data subjects. Rumours on the possibility of extending that obligation to other companies have been heard, but this has not happend to date.

ENFORCEMENT

In Spain, the AEPD is responsible for enforcement of the Act. Acting either ex officio or upon a complaint from a data subject (or a public authority, for example the Consumer Protection Office to which the data subject has complained), the AEPD is entitled to start:

• an investigation procedure, to collect information;
• a privacy rights protection procedure, when a data controller is refusing to allow a data subject to exercise his/her access, rectification, cancellation or objection rights; and
• a disciplinary procedure when enough evidence has been gathered to suspect that a data controller has infringed the LOPD.

Notably, the AEPD does not issue any "warnings" to the data controllers asking them to comply with the law. The first notice that, an organisation may receive from the AEPD is the commencement of a disciplinary procedure. As data protection rights are constitutional rights in Spain, negligence or error are not commonly considered as a reason to mitigate the sanction.

Sanctions are essentially monetary fines. They range from EUR 900 to EUR 40,000 for minor infringements, EUR 40,001 to EUR 300,000 for serious infringements and EUR 300,001 to EUR 600,000 for very serious infringements. Very serious and serious infringements are more frequently detected and sanctioned than minor ones. The fines stated here are per infringement, but very often fines are aggregated within a given case to form a larger total fine.

ELECTRONIC MARKETING

Electronic Marketing is regulated in Spain, in addition to the Spanish Data Protection Act, by the Spanish Act on the Information Society Services and e-Commerce ("LSSI"), as amended in March 2012. The general principle is that deliveries of electronic marketing materials are lawful only if they have been explicitly authorised in advance by the recipients (authorisation that is required not just for individuals, but also when the recipient is a legal entity, broadening here the scope of Spanish Data Protection Act). An exception to this general principle applies to deliveries to clients when the materials refer to products/services that are equal or similar to the ones sold to them in the past by the company sponsoring the advertisement.

Electronic publicity shall (i) be clearly marked as such by means of the terms PUBLI or PUBLICIDAD placed inside the subject line, (ii) shall allow the recipient to opt-out at all times, even by the time of registration, and (iii) shall clearly identify the sponsor of the delivery. It is the sponsor of the delivery, not the electronic publicity company that shall be held liable in case of enforcement. Opt-out shall include an email address when the publicity was delivered by email too. Opt-out procedure shall be simple and free for the recipient of the publicity.

Enforcement shall include, inter alia, fines that, in most cases, shall be between EUR 30,000 and EUR 150,000.

ONLINE PRIVACY (INCLUDING COOKIES AND LOCATION DATA)

Cookies are regulated in Spain, in addition to the Spanish Data Protection Act, by the Spanish Act on the Information Society Services and e-Commerce ("LSSI"), as amended in March 2012.

The new regulation requires data controllers to inform cookies' recipients (referred to in the LSSI as giving users the "actual opportunity") – including legal entities – of the existence and use of cookies, their scope and how to deactivate them. Actual opportunity is interpreted by the regulator as a procedure by which the user cannot browse the website, for example, without noticing the invitation to review the above-mentioned information and carrying out an active behaviour (even a simple one like pressing the ESC key) to continue browsing after being presented with the information or the opportunity to review it. A semi-transparent layer on the usual homepage screen is a generally approved mechanism to request the consent. Certain types of cookies (e.g. session cookies) are exempt from these restrictions as per the WP29 criteria released during the summer of 2012. The Spanish AEPD has made known to the public, by the way of a resolution, that in some cases the delivery of cookies to the computer of a user based in Spain may trigger the application of Spanish Data Protection Act in full.

On location data, the local position is that it may be acceptable provided that (i) users are informed at all times on whether the location system is active, (ii) users have agreed to be located and (iii) users have the option (especially when being off-duty if the location data is used in an employment context) to turn off the system.

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