Collection and processing in Spain
EU regulation
Data Protection Principles
Controllers are responsible for compliance with a set of core principles which apply to all processing of personal data. Under these principles, personal data must be (Article 5):
- processed lawfully, fairly and in a transparent manner (the "lawfulness, fairness and transparency principle");
- collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes (the "purpose limitation principle");
- adequate, relevant and limited to what is necessary in relation to the purpose(s) (the "data minimization principle");
- accurate and where necessary kept up to date (the "accuracy principle");
- kept in a form which permits identification of data subjects for no longer than is necessary for the purpose(s) for which the data are processed (the "storage limitation principle"); and
- processed in a manner that ensures appropriate security of the personal data, using appropriate technical and organizational measures (the "integrity and confidentiality principle").
The controller is responsible for and must be able to demonstrate compliance with the above principles (the "accountability principle"). Accountability is a core theme of the GDPR. Organisations must not only comply with the GDPR but also be able to demonstrate compliance perhaps years after a particular decision relating to processing personal data was taken. Record keeping, audit and appropriate governance will all form a key role in achieving accountability.
Legal Basis under Article 6
In addition, in order to satisfy the lawfulness principle, each use of personal data must be justified by reference to an appropriate basis for processing. The legal bases (also known lawful bases or lawful grounds) under which personal data may be processed are (Article 6(1)):
- with the consent of the data subject (where consent must be "freely given, specific, informed and unambiguous", and must be capable of being withdrawn at any time);
- where necessary for the performance of a contract to which the data subject is party, or to take steps at the request of the data subject prior to entering into a contract;
- where necessary to comply with a legal obligation (of the EU) to which the controller is subject;
- where necessary to protect the vital interests of the data subject or another person (generally recognised as being limited to 'life or death' scenarios, such as medical emergencies);
- where necessary for the performance of a task carried out in the public interest, or in the exercise of official authority vested in the controller; or
- where necessary for the purposes of the legitimate interests of the controller or a third party (which is subject to a balancing test, in which the interests of the controller must not override the interests or fundamental rights and freedoms of the data subject. Note also that this basis cannot be relied upon by a public authority in the performance of its tasks).
Special Category Data
Processing of special category data is prohibited (Article 9), except where one of the following exemptions applies (which, in effect, operate as secondary bases which must be established for the lawful processing of special category data, in addition to an Article 6 basis):
- with the explicit consent of the data subject;
- where necessary for the purposes of carrying out obligations and exercising rights under employment, social security and social protection law or a collective agreement;
- where necessary to protect the vital interests of the data subject or another natural person who is physically or legally incapable of giving consent;
- in limited circumstances by certain not-for-profit bodies;
- where processing relates to the personal data which are manifestly made public by the data subject;
- where processing is necessary for the establishment, exercise or defence of legal claims or where courts are acting in their legal capacity;
- where necessary for reasons of substantial public interest on the basis of Union or Member State law, proportionate to the aim pursued and with appropriate safeguards;
- where necessary for preventative or occupational medicine, for assessing the working capacity of the employee, medical diagnosis, provision of health or social care or treatment of the management of health or social care systems and services;
- where necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of health care and of medical products and devices; or
- where necessary for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with restrictions set out in Article 89(1).
Member States are permitted to introduce domestic laws including further conditions and limitations for processing with regard to processing genetic data, biometric data and health data.
Indeed, NLOPD has done so in a very intense manner. In 2023, the Spanish AEPD confirmed a new and stricter approach regarding the use of biometric data for monitoring access to offices / workplaces, that should be allowed for the future only in very exceptional circumstances.
Criminal Convictions and Offences data
Processing of personal data relating to criminal convictions and offences is prohibited unless carried out under the control of an official public authority, or specifically authorised by Member State domestic law (Article 10).
The NLOPD has confirmed this prohibition in very strict terms, with only very extraordinary exceptions (e.g. activities of lawyers and court representatives acting on behalf of their clients, verification imposed by AML law, verification imposed by child-protection law).
Processing for a Secondary Purpose
Increasingly, organisations wish to 're-purpose' personal data â i.e. use data collected for one purpose for a new purpose which was not disclosed to the data subject at the time the data were first collected. This is potentially in conflict with the core principle of purpose limitation; to ensure that the rights of data subjects are protected. The GDPR sets out a series of factors that the controller must consider to ascertain whether the new process is compatible with the purposes for which the personal data were initially collected (Article 6(4)). These include:
- any link between the original purpose and the new purpose;
- the context in which the data have been collected;
- the nature of the personal data, in particular whether special categories of data or data relating to criminal convictions are processed (with the inference being that if they are it will be much harder to form the view that a new purpose is compatible);
- the possible consequences of the new processing for the data subjects; and
- the existence of appropriate safeguards, which may include encryption or pseudonymisation.
If the controller concludes that the new purpose is incompatible with the original purpose, then the only bases to justify the new purpose are consent or a legal obligation (more specifically an EU or Member State law which constitutes a necessary and proportionate measure in a democratic society).
Transparency (Privacy Notices)
The GDPR places considerable emphasis on transparency, i.e. the right for a data subject to understand how and why his or her data are used, and what other rights are available to data subjects to control processing. The presentation of granular, yet easily accessible, privacy notices should, therefore, be seen as a cornerstone of GDPR compliance.
Various information must be provided by controllers to data subjects in a concise, transparent and easily accessible form, using clear and plain language (Article 12(1)).
The following information must be provided (Article 13) at the time the data are obtained:
- the identity and contact details of the controller;
- the data protection officer's contact details (if there is one);
- both the purpose for which data will be processed and the legal basis for processing, including, if relevant, the legitimate interests for processing;
- the recipients or categories of recipients of the personal data;
- details of international transfers;
- the period for which personal data will be stored or, if that is not possible, the criteria used to determine this;
- the existence of rights of the data subject including the right to access, rectify, require erasure, restrict processing, object to processing and data portability;
- where applicable, the right to withdraw consent, and the right to complain to supervisory authorities;
- the consequences of failing to provide data necessary to enter into a contract;
- the existence of any automated decision making and profiling and the consequences for the data subject; and
- in addition, where a controller wishes to process existing data for a new purpose, they must inform data subjects of that further processing, providing the above information.
Somewhat different requirements apply (Article 14) where information has not been obtained from the data subject.
Rights of the Data Subject
Data subjects enjoy a range of rights to control the processing of their personal data, some of which are very broadly applicable, whilst others only apply in quite limited circumstances. Controllers must provide information on action taken in response to requests within one calendar month as a default, with a limited right for the controller to extend this period thereby a further two months where the request is onerous.
Right of access (Article 15)
A data subject is entitled to request access to and obtain a copy of his or her personal data, together with prescribed information about the how the data have been used by the controller.
Right to rectify (Article 16)
Data subjects may require inaccurate or incomplete personal data to be corrected or completed without undue delay.
Right to erasure ('right to be forgotten') (Article 17)
Data subjects may request erasure of their personal data. The forerunner of this right made headlines in 2014 when Europeâs highest court ruled against Google (Judgment of the CJEU in Case C-131/12), in effect requiring Google to remove search results relating to historic proceedings against a Spanish national for an unpaid debt on the basis that Google as a data controller of the search results had no legal basis to process that information.
The right is not absolute; it only arises in quite a narrow set of circumstances, notably where the controller no longer needs the data for the purposes for which they were collected or otherwise lawfully processed, or as a corollary of the successful exercise of the objection right, or of the withdrawal of consent.
Right to restriction of processing (Article 18)
Data subjects enjoy a right to restrict processing of their personal data in defined circumstances. These include where the accuracy of the data is contested; where the processing is unlawful; where the data are no longer needed save for legal claims of the data subject, or where the legitimate grounds for processing by the controller are contested.
Right to data portability (Article 20)
Where the processing of personal data is justified either on the basis that the data subject has given his or her consent to processing or where processing is necessary for the performance of a contract, then the data subject has the right to receive or have transmitted to another controller all personal data concerning him or her in a structured, commonly used and machine-readable format (e.g. commonly used file formats recognised by mainstream software applications, such as .xls / .xlsx).
Right to object (Article 21)
Data subjects have the right to object to processing on the legal basis of the legitimate interests of the data controller or where processing is in the public interest. Controllers will then have to suspend processing of the data until such time as they demonstrate âcompelling legitimate groundsâ for processing which override the rights of the data subject.
In addition, data subjects enjoy an unconditional right to object to the processing of personal data for direct marketing purposes at any time.
The right not to be subject to automated decision making, including profiling (Article 22)
Automated decision making (including profiling) "which produces legal effects concerning [the data subject] ⌠or similarly significantly affects him or her" is only permitted where:
- necessary for entering into or performing a contract;
- authorised by EU or Member State law; or
- the data subject has given their explicit (i.e. opt-in) consent.
Further, where significant automated decisions are taken on the basis of grounds (a) or (c), the data subject has the right to obtain human intervention, to contest the decision, and to express his or her point of view.
Spain regulation
Data protection principles
The NLOPD foresees certain scenarios where the controller shall not be responsible for inaccurate data (provided it has taken all reasonable measures to ensure deletion or rectification without delay).
Criminal Convictions and Offences data
Article 10 of the NLOPD allows lawyers and procedural representatives to process the information provided by their clients related to criminal convictions and offences for the purposes of rendering the corresponding legal services. There are also other isolated exceptions if and when endorsed by the law (e.g. verification imposed by AML law, verification imposed by child protection law).
Processing of administrative offence or penalties
The processing of personal data related to administrative offences or penalties is permitted if it is carried out by the relevant public bodies having sanctioning powers over such offenses, and only to the extent necessary for achieving their legitimate purposes. If those requirements are not met, the processing shall be allowed by an specific law, or be based on the data subjectâs consent.
Please note that lawyers and procedural representatives are also allowed to process the information provided by their clients related to administrative offenses or penalties for the purposes of rendering the corresponding legal services.
Credit Solvency Databases
The NLOPD sets out stringent requirements for including personal data on credit solvency databases. In this regard, the information to be provided to data subjects as well as the particularities of the debt are, among others, key aspects to be taken into account.
CCTV Processing
Under the NLOPD, the processing of images through CCTV is only permitted for security purposes, provided that (i) the data obtained is duly deleted within the corresponding period of time (unless it is relevant for evidence purposes), and (ii) the mandatory notice requirements are met. Additional detailed requirements do apply.
Whistleblowing
The processing of personal data relating to whistleblowing (including anonymous reporting) is permitted provided that (i) employees are duly informed ,(ii) whistleblowing databases are only accessed by the necessary persons to carry out internal control purposes or to initiate the relevant disciplinary proceedings, and (iii) the data obtained is duly deleted within the mandatory period of time. Additional detailed requirements do apply.
Unfair competition
The NLOPD generates a new catalogue of âunfair competition practicesâ linked to personal data.
Data processing for electoral purposes
Political parties, coalitions and electoral groups can use personal data obtained from websites and other public sources to carry out political activities during an election period. Likewise, sending electoral propaganda by electronic means, as well as contracting any such propaganda on social or similar networks will not be deemed a commercial activity.
Transparency (Privacy Notices)
The NLOPD allows (Article11) provision of the information required by Articles 13 and 14 of the GDPR in layers. In this sense, a first layer should include the âbasic informationâ of the relevant processing as well as an immediate and easily accessible form (i.e. a link) to the second layer, where the rest of information to be provided under Articles 13 and 14 of the GDPR shall be included. Please note that the content of the before-mentioned âbasic informationâ depends on each case, but most of the times includes (i) the identity of the controller, (ii) the purpose of the processing, and (iii) the rights under Article 15 â 22 of the GDPR.
Rights of the data subject
Under the NLOPD, a data subjectâs right of access is deemed granted when the controller provides him/her with a means that permanently guarantees remote, direct and secure access to his / her personal data. In addition, the NLOPD indicates that more than one right of access request within six months shall be considered repetitive for the purposes of Article 12(5) of the GDPR unless the relevant requests are based on a legitimate reason.
Under the NLOPD, controllers must clearly indicate in their internal information systems the cases where the processing of personal data is restricted.
Blocking right / Blocking duty (NLOPD)
The NLOPD states that following the exercise of rectification or erasure, controllers shall "block" the personal data so that it shall remain available to the relevant public authorities in very specific situations. The NLOPD also offers other alternatives in case the âblockingâ of personal data is not feasible or involves a disproportionate effort.
Rights of the deceased
The NLOPD recognizes the right to digital testament. Moreover, the heirs of the deceased are entitled to exercise the rights of access, erasure and rectification of data unless the deceased person would had prohibited it (or if it is not in line with applicable law).
Special category data
The NLOPD deviates from GDPR mainstream approach on special category data. Most of this type of data cannot be processed relying on the consent of the data subject (health, biometric and genetic data being the exception to this ban, but relying on consent may be also not permitted for the latter and even standard data in employment and other contexts).
Location data
The overall position in Spain is that it may be acceptable provided that:
- users are informed at all times on whether the location system is active and retain full control on the system, freely deciding when to switch it on or off;
- the purposes of the processing are legitimate and proportionate and do not harm in an unfair manner the constitutional rights of the data subjects;
- users have been clearly informed on the circumstances under which they can be located and the purposes of such processing;
- users have the option (especially when being off-duty if the location data is used in an employment context) to turn off the system; and
- if in an employment context, Works Council / representatives of the employees, have been informed in advance about the collection of this type of information and the purposes of the processing (which shall remain within the limits of the authority of the employer to direct, control and monitor workersâ professional activities)
One of the main originalities of the NLOPD when compared with the GDPR is that it accepts new âdigital rightsâ, including, i.e. Internet neutrality, universal access to Internet, security of online communications, digital education, protection of minors on the Internet, amendment / update of non-accurate information on the Internet, a right to be forgotten-like right not to be found by search engines on the Internet and social networks.
On top of this, certain provisions of the NLOPD may have an impact on the relationship between a company and its employees (i.e. monitoring of digital devices, digital disconnection of the employees outside working hours, privacy at the workplace).
