Abstract
The entry into force of the General Data Protection Regulation (GDPR) was expected to cause difficulties to data controllers and data processors mostly due to the practical consequences of the accountability principle and the role of risk. However, in Portugal, there were supplementary problems triggered by two events: the long legislative process of the national law implementing the GDPR and the decision of the national supervisory authority to disapply nine provisions of it. In August 2019, the Portuguese Parliament adopted the law implementing the GDPR, Law 58/2019, and one month later, the Portuguese supervisory authority, Comissão Nacional de Proteção de Dados, decided that nine articles of the recently adopted national law were incompatible with European Union Law. This chapter aims to address this chain of events, to understand the reasoning behind the decision of the Portuguese authority, and to tackle its practical consequences to day-to-day data-processing activities of data controllers and data processors. Overall, it also aims to evaluate what is left of the national piece of legislation after this decision.
TopThe Birth Of The Portuguese Law Implementing The Gdpr
The Government’s Draft
The applicability of the GDPR, according to article 99 (2), started on May 25, 2018. In Portugal, the legislative process for its implementation began in August 2017, when the Government designated a special group (Presidency of the Council of Ministers, 2017) to prepare the first draft of its proposal (hereinafter government’s proposal). This draft would be presented and approved by the Portuguese Parliament (article 197 of the Portuguese Constitution).
However, in May 2018, the document (Presidency of the Council of Ministers, 2018) prepared by this committee failed to pass the Portuguese Parliament. Indeed, among others, it was impossible to reach an agreement in the following issues (Portuguese Parliament, 2018): a) the broad possibility, for public authorities and bodies, to process personal data for a purpose other than that for which the personal data have been collected (articles 6 (4) (1) (e) and 9 (2) (g) of the GDPR); b) the conditions applicable to children’s consent regarding information society services (article 8 (1) of the GDPR); c) the rules on whether and to what extent administrative fines could be imposed on public authorities and bodies from the sanction’s regime (article 83 (7) of the GDPR); and d) the rules governing processing personal data and the right to freedom of expression and information (article 85 of the GDPR).
Key Terms in this Chapter
Processing: Any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
Data Controller: The natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of processing personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law.
Data Processor: The natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller.
Personal Data: Any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;