Data protection and cybersecurity laws in Belgium

Data protection

1. Local data protection laws and scope

  • General Data Protection Regulation n° 2016/679 (GDPR);
  • Law of 30 July 2018 on the protection of natural persons with regard to the processing of personal data (Privacy Act) and implementing decrees;
  • Law of 5 September 2018 establishing the Information Security Committee and amending various laws concerning the implementation of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC;
  • Law of 21 March 2018 on the use of surveillance cameras (the new Camera Act);
  • Law of 3 December 2017 on the creation of a Data Protection Authority (DPA);
  • Law of 13 June 2005 on electronic communications (on cookies);
  • Book VI and Book XII Belgian Economic Code (on direct marketing and cookies);
  • Royal Decree of 3 February 2019 on the implementation of the Law of 25 December 2016 on the processing of passenger data, including the obligations for bus carriers;
  • Royal Decree of 3 February 2019 on the implementation of the law of 25 December 2016 on the processing of passenger data, including the obligations for HST (High Speed Train) carriers and HST ticket machines;
  • Royal Decree of 6 December 2018 determining the places where the controller can direct his surveillance cameras towards the perimeter directly surrounding the site, keep the images of the surveillance cameras for three months and give real-time access to the images to the police services;
  • Royal Decree of 8 May 2018 on declarations of installation and use of surveillance cameras and on the register of activities for the processing of images from surveillance cameras;
  • Royal decree of 4 April 2003 regulating advertising by electronic mail;

To consult these laws, see hyperlinks below.

Law of 3 December 2017:

Law of 5 September 2018:

Privacy Act:

The Privacy Act (Articles 2 and 4) applies when:

  • the processing is carried out wholly or partly by automatic means or otherwise forms part of or is intended to form part of a filing system
  • AND
  • the processing is carried out in the context of the effective and actual activities of a permanent establishment of the controller or processor on Belgian territory or a place where Belgian law applies by virtue of private international law; or
  • the processing of personal data of data subjects on Belgian territory or a place where Belgian law applies by virtue of private international law is carried out by a controller or processor not established in Belgium/a place where Belgian law applies by virtue of private international law where the processing activities are related to:
    • the offering of goods and services to such data subjects; or
    • the monitoring of their behaviour as far as their behaviour takes place in Belgium or a place where Belgian law applies by virtue of private international law.

Book VI and Book XII of the Belgian Economic Code apply to all processing/marketing activities on Belgian territory.

2. Data protection authority

Data Protection Authority: https://www.dataprotectionauthority.be

3. Anticipated changes to local laws

There are no anticipated changes to local laws.

4. Sanctions & non-compliance

Administrative sanctions:

The Belgian Supervisory Authority has investigative and enforcement powers, meaning that it can, among others, conduct investigations and impose administrative fines on companies (as provided for in Article 83 GDPR, and Articles 221-230 Privacy Act).

Criminal sanctions:

The Privacy Act also provides for criminal sanctions (which can only be imposed by court order): with a maximum criminal fine of EUR 30,000 (to be multiplied by the factor applying to criminal fines i.e. eight at the time of the last update of this document); confiscation of any carriers containing personal data to which the breach relates; court order to erase such personal data; court order to publish all or part of the court decision.

Failure to comply with the obligations in the Belgian Economic Code/Royal Decree of 4 April 2003 may result in a criminal fine of up to EUR 200,000.

Others:

A data subject may (in addition to making a complaint to the Data Protection Authority) also make a claim to the courts for compensation for material or non-material damage (which may include distress). There is the potential for class actions to be brought.

5. Registration / notification / authorisation

Data Protection Officers must be registered with the Data Protection Authority (Article 63, Privacy Act). For more information, see:

As from 25 May 2018, surveillance cameras must be registered with police authorities (instead of the Data Protection Authority). For more information, see:

6. Main obligations and processing requirements

In a nutshell, the Privacy Act:

  • sets the age of children to validly consent to information society services at 13 (Article 7, Privacy Act);
  • provides a comprehensive list of the processing activities considered as “processing necessary for reasons of substantial public interest” (Article 8(1), Privacy Act);
  • requires that the controller, when processing genetic data, biometric data and data concerning health, lists the categories of persons having access to those personal data (Article 9, Privacy Act);
  • specifies a limitative list of cases where the processing of data relating to criminal convictions and offences is authorised (Article 10, Privacy Act);
  • enunciates some of the derogations and exemptions to the rights of data subjects as authorised under Article 23, GDPR (Articles 11-17, Privacy Act);
  • provides derogations and exemptions for processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes (Article 24, Privacy Act);
  • introduces the possibility to seek an injunction (“action en cessation”; “vordering tot staking”) (under summary proceedings) before the president of the Court of First Instance in case of a violation of the GDPR or the Privacy Act (Article 209, Privacy Act);
  • provides administrative fines (except on public sector entities) and criminal sanctions for violations of the GDPR or the Privacy Act (Articles 221-230, Privacy Act)

7. Data subject rights

The Privacy Act provides for some limitations to these rights, e.g. in the context of processing of personal data by state intelligence services (Articles 11-17, Privacy Act).

8. Processing by third parties

There are no derogations from the GDPR.

9. Transfers out of country

There are no derogations from the GDPR.

10. Data Protection Officer

There are no derogations from the GDPR.

11. Security

There are no derogations from the GDPR.

12. Breach notification

There are no derogations from the GDPR.

13. Direct marketing

If by email: need to obtain consent, unless you can rely on (i) the soft opt-in exemption (customers, own similar products or services, and opt-out at the time of collection and afterwards, in every marketing communication) or (ii) the B2B exemption (if the phone number/email address is of an impersonal nature).

If by regular mail: opt-out regime.

If by (manual) call: opt-out regime (you can freely call consumers unless they have subscribed to a do-not-call-me list or otherwise indicated that they do not want you to contact them for marketing purposes).

In February 2020, the DPA published new detailed guidelines on direct marketing (see our Law Now for more information).

14. Cookies and adtech

Need to obtain prior informed, freely given, specific and unambiguous consent, unless cookies are used for the sole purpose of carrying out a transmission of a communication over an electronic communications network or if strictly necessary to provide a service explicitly requested by the user. Data subjects should be allowed to withdraw consent at any time, free of charge, and without prejudice.

In December 2019, the DPA imposed a EUR 15,000 fine on a website for unlawful use of cookies (decision available in Dutch and in French).

In April 2020, the DPA published new guidelines on the implementation of cookies (see link below).  

15. Risk scale

Moderate.

Template record of processing activities:

Law of 3 December 2017: 

Law of 5 September 2018:

Privacy Act:

Guidance on the need to conduct a Data Protection Impact Assessment (DPIA) and non-exhaustive list of processing operations requiring a DPIA to be carried out:

List of processing operations requiring a DPIA:

Guidelines on the implementation of cookies:

To notify a data breach to the Data Protection Authority, you must fill in the e-form available here:

Cybersecurity

1. Local cybersecurity laws and scope

Law of 1 July 2011 on the security and protection of critical infrastructure (Critical Infrastructures Act)

  • Law of 11 December 1998 on classification, security clearances, security certificates and security advice (Classification Act)
  • Law of 7 April 2019 establishing a framework for the security of networks and information systems in the general interest of public security (Belgian NIS Act)
  • Royal Decree of 12 July 2019 implementing the Act of 7 April 2019 establishing a framework for the security of network and information systems of general interest for public safety, and the Act of 1 July 2011 on the security and protection of critical infrastructure (NIS Royal Decree)

2. Anticipated changes to local laws

There are no anticipated changes to local laws.

3. Application 

Critical Infrastructures Act: sets out security obligations for European and national critical infrastructure in the energy, transport, financial and electronic communications sector

Classification Act: covers the main processes to evaluate which information should be classified, and determining which individuals may be granted a security access level.

Belgian NIS Act: covers a number of obligations imposed on operators of essential services and digital service providers to take technical and organisational security measures to prevent incidents or limit their impact on and ensure the continuity of (essential) services. It also includes the notification of incidents, supervision and sanctions.

NIS Royal Decree: implements the Belgian NIS Act on topics such as the NIS notification Platform, the notification, processing of the incident, voluntary notifications and institutions for the conformity assessment.

4. Authority

  • Centre for Cybersecurity Belgium (CCB) https://ccb.belgium.be/en;
  • The National Crisis Centre (NCCN);
  • The sectoral government and/or its sectoral CSIRT

5. Key obligations 

  • Critical Infrastructures Act
    • Appoint a security officer and establish a security plan
    • Mandatory reporting obligation of all incidents threatening the security of critical infrastructure
  • Classification Act
    • Requires data that may cause a threat to national security or the national interest of Belgium to be classified
    • Maps security practices to assigned classification levels
  • Belgian NIS Act
    • Need to appoint a DPO, a single contact point and establish an Information Security Policy (ISP)
    • Implement the appropriate and proportionate technical and organisational security measures described in the ISP

Mandatory reporting obligation of all incidents threatening significantly affecting the availability, confidentiality, integrity or authenticity of the network and information systems on which the essential service(s) it provides depend.

6. Sanctions & non-compliance 

Please provide your answers under the following headings:

Administrative sanctions:
  • Belgian NIS Act
    • Administrative fine up to EUR 200,000
Criminal sanctions:
  • Belgian NIS Act
    • Imprisonment of up to three years
    • Criminal fine of up to EUR 75,000
  • Critical Infrastructures Act
    • Imprisonment of up to one year
    • Criminal fine of up to EUR 80,000
  • Classification Act
    • Imprisonment of up to five years
    • Criminal fine of up to EUR 40,000
Others:
  • Belgian NIS Act
  • Two types of audits and checks by the inspectorate

7. Is there a national computer emergency response team (CERT) or computer security incident response team (CSIRT)? 

  • CERT.be is the federal cyber emergency team that assists companies with: (i) coordination in the event of cyber incidents; (ii) advice on finding a solution when cyber incidents arise; and (iii) support to prevent these security incidents occurring.
  • Cert.be is part of the CCB
  • The Centre for Cybersecurity Belgium (CCB) is the national CSIRT.
  • Sectoral CSIRTs are possible to support the national CSIRT.

8. National cybersecurity incident management structure

The notification must be made via the NIS notification platform: https://nis-incident.be/nl/.

The CCB is responsible for replying to cybersecurity incidents targeting strategically important institutions.

9. Other cybersecurity initiatives 

N/A

Portrait of Janick Van Daele
Janick Van Daele
Associate
Brussels
Portrait of Deven Dobbelaere
Deven Dobbelaere
Associate
Brussels