CNPD (Portugal) - Deliberação/2021/1569
|CNPD (Portugal) - Deliberação/2021/1569|
|Relevant Law:||Article 5(1)(a) GDPR|
Article 5(1)(c) GDPR
Article 5(1)(e) GDPR
Article 9(1) GDPR
Article 13 GDPR
Article 83(7) GDPR
Article 83(3) GDPR
Article 35(3)(b) GDPR
Lei n. 58/2019
|National Case Number/Name:||Deliberação/2021/1569|
|European Case Law Identifier:||n/a|
|Original Source:||CNPD (in PT)|
|Initial Contributor:||Jennifer Vidal Ferreira and Giovanna Lahude|
The Portuguese DPA issued a €1,250,000 fine against the Lisbon Municipality for sharing personal and sensitive data of protestors with third parties, including the embassies and foreign ministers of the countries targeted by the protests.
English Summary[edit | edit source]
Facts[edit | edit source]
The case has its origins in what became known in the Portuguese media as “Russiagate”, when it became known that the Lisbon Municipality (the Municipality) had collected and shared personal data belonging to a promoter of a demonstration in Lisbon in favour of Russian dissident Alexei Navalny, and whose personal data was subsequently shared with Russian authorities. It was then revealed that data from many other protest promoters had been shared with a vast set of third parties in the past, including the offices of the Portuguese Prime Minister, the Minister of Internal Administration (MAI) and the Public Security Police (PSP), as well as embassies and foreign ministers from third countries targeted by protests in Lisbon.
Although this practice was carried out at least since 2012, and up until 2021 (as an internal database of the Municipality showed), the decision focuses on cases that occurred from 2018 and onward, corresponding to the entry into force of the GDPR. Within the decision is a list of 111 specific protests, and the data that was collected and shared in each case. The data collected from the protestors included name, address (postal or electronic), profession, telephone number, nationality, date of birth, affiliations, marital status, tax identification number, civil identification number, residence permit details, and sometimes even copies of civil identification documents.
After an initial draft decision by the Portuguese DPA (CNPD), the Municipality presented its defense, in which they argued, among other things, that their actions did not constitute willful misconduct but were rather based on a per-existing tradition within civil governments, and the execution of a "bureaucratic procedure" that was not detected as problematic when evaluating internal conformity with GDPR. It also stated that the Mayor had issued an order dated April 3 2013, in which it was established that the data collected on protestors should only be shared with the MAI and PSP, which was justified in order to ensure not only the safety of the protest, but also the provision of additional public services such as electricity and urban cleaning. The Municipality claimed that any sharing of data beyond these agencies was attributable to officials acting contrary to the Mayor's order, and that any assessment on the subjectivity of these actions should find them to be slightly censurable, but not malicious.
With regards to its potential obligation to carry out a Data Protection Impact Assessment (DPIA), the Municipality argued that this obligation had legally prescribed. They also argued that the data shared should not be considered sensitive data under Article 9(1) GDPR as it does not reveal any of the dimensions protected within this provision, and that the adherence of promoters to the causes defended in the demonstrations were made manifestly public, including on social networks, which constitutes an exception to the processing of this kind of data under Article 9(2)(e) GDPR.
Additionally, the Municipality claimed that there was no applicable rule to sanction them, because according to Article 83(7) GDPR, the imposition of fines only apply to the public sector when established by a national law, and that there is no sanctioning rule applicable to non-business entities in the public sector under Portuguese GDPR National Implementation Law (Law 58/2019). The Municipality also requested an exemption of any potential fine against them according to the terms of Article 44(3) of the aforementioned national law.
Holding[edit | edit source]
On the allegation by the Municipality that these data sharing practices were based on tradition already established under the jurisdiction of civil governments, the CNDP noted that an initial procedure was established in 2012 by the Mayor of Lisbon at the time through Protocol No. GPCML/1/2012, in which the protest promoter's data was shared with the Prime Minister's Office, the MAI, the PSP, the Lisbon Municipal Police, the Security Coordination Office, the Office of the Deputy Minister for Parliamentary Affairs, municipal services, and in case they were targeted, the Parliament, ministries and embassies.
The CNPD also recalled that the Municipality itself recognized the disorganisation of the data remittance procedure when the Mayor issued the order dated April 13, 2013, in which the aforementioned protocol was amended. This new protocol limited the sending of notices to the MAI and the PSP. However, as the facts in the case show, in practice this order was not complied with. Hence, the CNDP held that merely issuing an order without a proper evaluation to ensure its compliance was a clearly insufficient measure. The CNPD also rejected the Municipality's attempt to remove responsibility from itself based on their employee's non-compliance with this new order.
Regarding the subjective elements in the Municipality's conduct, the CNPD held that willful misconduct can be established through inferences from the factual circumstances in the case. The CNPD highlighted a consistent disregard for personal data protection rules and notorious laxity on data protection management. This was exhaustively substantiated by the CNPD with numerous examples, including the fact that the Lisbon Chamber remained inactive during the two year GDPR adaptation period, and that the Municipality's action plan for the implementation of the GDPR was approved only until August 2019. The CNDP attributes circumstances observed in the operational procedures of the Municipality, including the non-verification of compliance with data protection rules, to an “organizational culture, at the very least, very deficient”, and acting contrary to the principle of responsibility.
The CNPD held that a person's registration with the Municipality as the organiser of a protest should be considered a special category of data protected under Article 9(1) GDPR. The CNDP also highlighted the mistake made by the Municipality in confusing the purpose of the demonstrations with the purpose of collecting the organiser's personal data. Hence, the CNDP stated that regardless of the fact that a person publicly manifests it will participate in a protest, this does not authorize any entity to then proceed with the processing and sharing of their personal data collected for the purpose of organising the event. The CNPD also warned that this publicity should not be taken advantage of in order to categorise people according to their ideas, orientations and religions, or put them in danger by sharing their data with third parties against which they are protesting. The CNDP considered the fact that more and more protesters around the world are concerned about revealing their identities, and that the growing array of means of identifying, recording and preserving personal information in public places should lead to the updated consideration of the risks that these means pose to freedom of assembly and expression.
The CNDP held that there was no justification for the failure to comply with the duty of carrying out a DPIA provided for in Article 35(3)(b) GDPR because, among other things, Law 58/2019 does not have any mention of a prescription period, and even maintains this obligation after fines have been imposed. The CNPD also pointed out that the need to carry out a DPIA is not restricted to the presence of processing of special categories of data, and that a potential violation or risk to the exercise of fundamental rights such as freedom of assembly in itself, would justify the realization of a DPIA.
Regarding the lack of a sanctioning rule applicable to the Municipality of Lisbon, the CNPD noted that indeed Article 83(7) GDPR states that each Member State may lay down the rules on whether and to what extent administrative fines may be imposed on public authorities, and that Article 44(1) of Law 58/2019 is crystal clear in its wording establishing that "the fines provided for in the GDPR and in this law apply equally to public and private entities”.
To establish its fine on the Municipality, the CNPD, applied Article 83(3) GDPR taking into account that the infringements were related to the same or linked processing operations, and issued a single fine of € 1,250,000 for the violation of the principle of lawfulness, fairness and transparency under Article 5(1)(a) GDPR, the principle of data minimization (in terms of "need to know") under Article 5 (1)(c) GDPR, the principle of storage limitation under Article 5 (1)(e)GDPR, the duty to provide information under Article 13 GDPR, and the obligation to carry out a DPIA under Article 35(3)(b) GDPR. The CNDP also highlighted the fact that it took the financial difficulties faced by public entities due to the COVID19 pandemic into consideration, and that if it had not done so, the severity of the fines imposed would certainly be much higher.
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English Machine Translation of the Decision[edit | edit source]
The decision below is a machine translation of the Portuguese original. Please refer to the Portuguese original for more details.