CMS Expert Guide: Data Law Navigator

Data protection

1. Local data protection laws and scope

PRC Cybersecurity Law (2017), a high-level legislation setting out the basic regulatory framework for both data protection and cybersecurity matters. 

Personal Information Security Specification (GB/T 35273-2020), a comprehensive standard setting out detailed data protection requirements. 

Law n. 9887 dated 10 March 2008 “On protection of personal data”.

This law shall apply to the processing of personal data, wholly or partly by automatic means and to the processing by other means of a personal data stored in a filing system, or intended to form part of a filing system. 

This law shall apply to the processing of personal data by:

  1. controllers established in the Republic of Albania;
  2. diplomatic missions or consular offices of the Albanian state;
  3. controllers who are not established in the Republic of Albania, making use of any equipment situated in the Republic of Albania; 

In circumstances stipulated in point 3, the controller designates a representative established in the territory of Albania. Stipulations of this law applying to controllers are also applicable to their representatives. This law applies also to the public authorities that process personal data.

This law is not applicable to processing of data: 

  • by a natural person for purely personal or family purposes;

only in case the information is provided about public officials or public (state) administration servants, reflecting their public, administrative activities or issues related to their duties.

2. Data protection authority

  • Cyberspace Administration of China 
  • Ministry of Industry and Information Technology
  • Ministry of Public Security
  • Sector regulators

The Commissioner for the Right to Information and Protection of Personal Data is the independent authority in charge of supervising and monitoring the protection of personal data and the right to information by respecting and guaranteeing the fundamental human rights and freedoms in compliance with the law.

3. Anticipated changes to local laws

China published the Draft Data Security Law on 3 July 2020 for public consultation until 16 August 2020. Once passed, this legislation will be the first specialised data security supervision law in China.

China published the Draft Personal Information Protection Law on 21 October 2020 for public consultation until 19 November 2020. Once passed, this legislation will be the first designated personal data protection law in China.

Law no. 48/2012 "On some additions and changes to the law no. 9887, dated 10 March 2008" On the protection of personal data", dated 08 May 2012.

Law no. 120/2014 "On some additions and changes to the law no. 9887, dated 10 March 2008" On the protection of personal data", dated 18 September 2014.

4. Sanctions & non-compliance

Administrative sanctions:
  • administrative fines 
  • confiscation of illegal income
  • suspension of business operations
  • revocation of business licences
Criminal sanctions:
  • criminal detention
  • imprisonment up to seven years
  • criminal fines    
Others: 
  • negative impact on social credit scores

Cases of data processing in contradiction with the provisions of this law do not constitute any criminal offence and are subject to a fine. The Fines shall be imposed by the Commissioner when he finds that the obligations set forth in the law are infringed.

5. Registration / notification / authorisation

There is no registration for collecting personal data in China.

A data controller is required to report data breaches or incidents to the relevant government authorities and to notify the affected data subjects.

Registration and the notification must contain the following information:

  • name and address of the controller;
  • the purpose of processing personal data;
  • categories of data subjects and categories of personal data;
  • recipients and categories of recipients of personal data;
  • the proposal for international transfers that the controller intends to carry out;
  • a general description of the measures for the security of personal data (this is not part of the registration)
The responsibility to notify

Every controller shall notify the Commissioner about the processing of personal data for which he is responsible. The notification shall be made before the controller processes the data for the first time, or when a change of the processing notification status is required.

The processing of personal data the sole purpose of which is to keep a record, which in accordance with the law or sub-legal acts provides information for the public in general, is exempted from the obligation to notify the processing of data. Data that are processed for the purpose of protection of the constitutional institutions, interests of national security, foreign policy, economic or financial interests of the state, prevention or prosecution of the criminal offences are exempted from the obligation to notify. 

Other cases on which notification is not necessary are established under a decision of the Commissioner.

6. Main obligations and processing requirements

A data controller is required to:

  • publish rules specifying the purpose, methods and scope of the collection and use of personal data;
  • obtain consent from data subjects;
  • follow the principle of legality, propriety, and necessity;
  • take technical measures to prevent personal data from being disclosed, damaged or lost;
  • take remedial measures, in a timely manner, when a leak, destruction or loss of personal data occurs;
  • inform affected data subjects of any incident, and report the incident to the relevant government authorities; and
  • delete or revise the personal data collected, after receiving legitimate complaints from data subjects.

A data controller shall also ensure that the data processors engaged follow all applicable data protection requirements.

Protection of personal data is based on: 

  • processing that is fair and lawful; 
  • a collection for specific, clearly defined and legitimate purposes and shall be processed in a way that is compatible with these purposes; 
  • adequate data, which are relevant to the purpose of their processing and not excessive in relation to such purpose; 
  • accurate data, and where necessary, updated; every reasonable step must be taken to ensure that data which are inaccurate or incomplete, having regard to the purposes for which they were collected or for which they are further processed, are erased or rectified;
  • keeping data in a form that allows the identification of data subjects for no longer than it is necessary for the purpose for which they were collected or further processed;

The controller is in charge of applying these requirements to all kinds of processing of data, be it automatically or by other means.

The personal data may be processed only if:

  • Personal data subject has given his or her consent;
  • Processing is necessary for the performance of a contract to which the data subject is party or in order to negotiate or amend a draft/contract at the request of the data subject;
  • in order to protect the vital interests of the data subject;
  • to comply with a legal obligation of the controller;
  • for the performance of a legal task of public interest or in exercise of powers of the controller or of a third party to whom the data are disclosed;
  • processing is necessary for the protection of the legitimate rights and interests of the controller, the recipient or any other interested party. However, in any case, the processing of personal data cannot be in clear contradiction with the data subject’s right to protection of personal life and privacy.

Processing of personal data in the framework of crime prevention and prosecution activities, in cases of a criminal offence against the public order and other violations in the field of criminal law, defence and national security, shall be performed by official authorities as stipulated in the law. 

In the event, the controller or processor may carry out personal data processing for the purpose of offering business opportunities or services provided that the data were taken from a public list of data. 

The controller or processor cannot process any further the data specified in this paragraph, if the data subject has expressed his or her disagreement or has objected to further processing. No additional personal data may be attached to the data specified above without the consent of the data subject. 
The controller is allowed to keep the personal data in its own filing system.

Such data can only be used if the data subject gives his or her consent.

The collection of personal data which is related to a data subject solely for reasons of direct marketing is allowed only if the data subject has given his or her explicit consent.

Obligations of the Controller and Processor:

  • obligation to inform;
  • obligation to rectify and erase;
  • obligations of the Processor.

7. Data subject rights

A data subject has the following rights: 

  • right of access 
  • right to rectification 
  • right to erasure 
  • right to withdrawal consent
  • right to deregister accounts
  • right to request copies 
  • right to request responses to their request based on the above rights
  • right to complain
  • The right to access;
  • right to request blocking, rectification and erasure;
  • automated decision;
  • right of the data subject to refuse;
  • right to complain;
  • compensation for damage.

8. Processing by third parties

Entrusting third party processors and sharing data with third party are both allowed. They both require data subjects' consent and impact assessments, and are subject to different requirements concerning recipient due diligence, continuous monitoring, and liability allocation. 

Processing by third parties is not allowed.

9. Transfers out of country

The current law requires a critical information infrastructure operator to store all personal information and important data collected within China in China. No cross-border transfer is allowed unless the required security assessment is passed. 

A few draft regulations propose to extend the coverage of this data localisation requirement to all data controllers. It is not clear whether the proposal will remain unchanged in the final versions.

The Draft Personal Information Protection Law provides alternative conditions for cross-border transmission of personal information other than the required security assessment, including obtaining personal information protection certification by professional agencies or signing a contract with overseas recipient of the personal information to stipulate the rights and obligations of both parties as well as supervise the recipient’s personal information protection. Therefore, requirements for cross-border transmission of personal information and important data may be further updated by the enactment of the PRC Personal Information Protection Law and relevant regulations.

International transfer 

The international transfer of personal data is allowed for recipients from states which have an adequate level of personal data protection. The level of personal data protection for a state is established by assessing all circumstances related to nature, purpose and duration of the processing, country of origin and final destination, legal provisions and security standards in force in the recipient state. States that have an adequate level of data protection are assessed under a decision by the Commissioner. International transfer of personal data with a state that does not have an adequate level of personal data protection may be carried out when: 

  • it is authorised by international acts ratified by the Republic of Albania and are directly applicable; 
  • the data subject has given his or her consent for the international transfer; 
  • the transfer is necessary for the performance of a contract between the data subject and the controller or for the implementation of pre-contractual measures taken in addressing the data subject’s request, or the transfer is necessary for the conclusion or performance of a contract between the controller and a third party, in the interest of the data subject;
  • it is a legal obligation of the controller; 
  • it is necessary for protecting vital interests of the data subject; 
  • it is necessary or constitutes a legal requirement over an important public interest or for exercising and protecting a legal right;
  • transfer is done from a register that is open for consultation and provides information to the general public. 

Exchange of personal data to the diplomatic representations of foreign governments or international institutions in the Republic of Albania shall be considered an international transfer of data. 

International transfer of data that need to be authorized 

In cases other than those provided herein, the international transfer of personal data with a state that does not have an adequate level of data protection, shall be carried out upon an authorisation from the Commissioner, if adequate safeguards are foreseen with respect to the protection of the privacy and fundamental human rights and freedoms, as well as regarding the exercise of the corresponding rights. 

The Commissioner, after making an assessment, under the specification provided herein may give authorisation to transfer personal data to the recipient State by defining conditions and obligations. 

The Commissioner issues instructions in order to allow certain categories of personal data international transfer to a state that does not have an adequate level of personal data protection. In these cases, the controller is exempted from the authorisation request. 

The controller shall submit a request for authorisation to the Commissioner prior to the data transfer. In the authorisation request, the controller shall guarantee the observance of the interests of the data subject to protection of confidentiality outside the Republic of Albania.

10. Data Protection Officer

The current law requires the appointment of the persons who are responsible for cybersecurity. Therefore, a data controller must designate qualified staff or a team to be responsible for personal data protection matters.

In the privacy policies, a data controller must share the contact information of the person or team who is able to take enquiries or complaints from data subjects.  

The Commissioner.

11. Security

Depending on the nature of personal data and the contexts of where personal data is processed, security measures concerning data back-up, classification, encryption, access control and the general IT security environment must be taken in accordance with the relevant technical standards. 

The controller or the processor shall take appropriate organisational and technical measures in order to protect personal data from unlawful or accidental destruction, accidental loss, from access or disclosure to unauthorised persons, especially when the processing of data takes place in a network, as well as from any other unlawful form of processing. 

The controller shall take the following special security measures: 

  • defines the functions of the organisational units and those of the operators as regards the use of data;
  • data shall be used with the order of authorised organizational units or operators; 
  • instructs all operators concerning their obligations, in conformity with this law and the internal regulations on data protection, including the regulations on data security;
  • Prohibits access of unauthorised persons to the working facilities of the data controller or processors;
  • data and programmes shall be accessed only by authorised persons;
  • Prohibits access to the filing system and their use by unauthorised persons; 
  • Operation of the data processing equipment shall be carried out upon authorisation and every device shall be secured with preventive measures against unauthorised operation;
  • records and documents the alteration, rectification, erasure, transfer, etc. 

The controller is obliged to document the technical and organisational measures adjusted and implemented to ensure protection of personal data in compliance with the law and other legal regulations. 

The data recorded shall not be used for different purposes which are not compliant with the purpose of collection. Acquaintance with or processing of the data registered in files for a purpose other than the right to enter the data shall be prohibited. In case data are used to guarantee national security, public security, for prevention or investigation of a criminal offence, or prosecution of the author thereof, or of any infringement of ethics for the regulated professions, it is exempted from this rule. Documentation of the data shall be kept for as long as it is necessary for the purpose for which they were collected.

The security level shall be in compliance with the nature of personal data processing. Detailed rules on data security shall be specified by decision of the Commissioner. Procedures for the administration of the data registration, data entry, their processing and disclosure shall be regulated by a decision of the Commissioner.

Controllers, processors and persons who come to know the content of the processed data while exercising their duty, shall remain under obligation of confidentiality and credibility even after termination of their functions. These data shall not be disclosed save when otherwise provided by law. Everyone acting under the authority of the controller or the processor shall not process the personal data to which he or she has access, without the authorisation of the controller, unless it is mandatory by law.

12. Breach notification

After a data breach or incident occurs, a data controller is obliged, within a reasonable time, to report it to the relevant government authorities and to notify it to the affected data subjects.

N/A

13. Direct marketing

Data subjects’ explicit consent is required. Not giving such consent shall not prevent data subjects’ access to core functions of the underlying services or products. Data subjects must be given the option to withdraw consent and receive non-personalised push or display.

Collection of personal data that is related to a data subject solely for reasons of direct marketing is allowed only if the data subject has given his explicit consent.

The data subject has the right to ask the controller not to start processing, or if processing has started, to stop the processing of personal data related to him or her for the purposes of direct marketing and to be informed in advance before personal data are disclosed for first time for such purpose.

14. Cookies and adtech

There is no designated law governing the specific use of Cookies or adtech. The general cybersecurity and data protection requirements apply. 

N/A

15. Risk scale

Moderate.

Moderate

Cybersecurity

1. Local cybersecurity laws and scope

PRC Cybersecurity Law (2017), a high-level legislation setting out the basic regulatory framework for both cybersecurity and data protection matters. 

A series of implementation regulations and supporting technical standards following the principles of the PRC Cybersecurity Law. 

Law n. 2/2017 “For Cyber Security”, dated 09.02.2017

2. Anticipated changes to local laws

More implementation rules and technical standards will be published to provide detailed requirements concerning the scope of critical information infrastructure, the implementation of the classified cybersecurity protection regime, and the security quality requirements for connected network devices. 

There are no anticipated changes to local laws.

3. Application 

The Cybersecurity Law and the implementation rules apply to the establishment, operation, maintenance, and use of networks. 

The scope is broad and might not only cover operators registered in China, but also foreign operators who supply goods or services to Chinese users or who place IT facilities within China.

This law is applied to communication networks and information systems, the violation or destruction of which would affect the health, safety, wealth of citizens and the effective functioning of the economy in the Republic of Albania.

Excluded from the application of this law are electronic communications networks and information systems that are subject to legal regulations in force for electronic signature, electronic identification and trusted services, electronic communications networks and information systems that process, archive or transmit classified information of the state, as well as electronic communications networks and information systems, as far as it is provided in the legislation on electronic communications in the Republic of Albania.

4. Authority

  • Cyberspace Administration of China 
  • Ministry of Industry and Information Technology
  • Ministry of Public Security
  • Sector regulators

The National Computer Security Agency (ALCIRT) is the central authority for identifying, anticipating and taking measures to protect against computer threats and attacks, in accordance with applicable law.

5. Key obligations 

Network operators and online service providers shall perform security protection obligations suitable for the specific cybersecurity protection levels that they fall in. The main obligations include: 

  • formulating internal security management systems, operating rules and assigning responsible personnel;
  • taking technical measures to prevent computer viruses, network attacks, and other actions endangering cybersecurity;
  • monitoring and recording network operational status and network security incidents, and keeping network logs for at least six months;
  • taking data classification, important data back-up, data encryption and other relevant measures; and
  • establishing cybersecurity incident response capabilities, mitigating breaches and reporting to the relevant government authorities.

Critical information infrastructure operators are subject to additional requirements concerning data localisation and the use of certified network products.

Manufacturers of connected products must comply with the mandatory technical requirements provided in the applicable national standards, and get their “critical equipment and specialised network security products” (if any) certified.

The responsible authority has the following competencies in the field of cyber security:

  • to determine cybersecurity measures;
  • to act as a central point of contact at the national level for the responsible operators in the field of cybersecurity and to coordinate the work to solve cybersecurity issues;
  • to manage incident reports in the cybersecurity sector and ensure their storage and registration;
  • to provide methodological assistance and support to the responsible operators in the field of cybersecurity;
  • to analyse for weaknesses in the field of internet security;
  • to perform awareness and education activities in the field of cybersecurity;
  • to act in the capacity of the national CSIRT.

The Authority coordinates its activities with security and defence institutions and cooperates with sectoral CSIRTs and international authorities in the cybersecurity sector, through joint agreements, in accordance with applicable law.

6. Sanctions & non-compliance 

Administrative sanctions:

  • administrative fines 
  • confiscation of illegal income
  • suspension of business operations
  •  revocation of business licences 
Criminal sanctions:
  • criminal detention
  • imprisonment 
  • criminal fines 
Others: 
  • negative impact on social credit scores
  • Corrective measures;
  • Administrative offences;
  • Administrative sanctions.

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

The Cybersecurity Administration of China (and the Emergency Response Office to be established under the CAC) will coordinate with other relevant government authorities to handle national cybersecurity incidents.

Yes.

8. National cybersecurity incident management structure

The National Cybersecurity Incident Response Plan (2017) sets out the basic national incident management structure, as well as an allocation of responsibilities among different government authorities. 

Business operators are required to formulate their own internal incident response plans, and report incidents to the relevant government authorities in time.

Computer Security Incident Response Teams (CSIRTs) comprise computer security specialists at each operator that manages critical information infrastructure.

9. Other cybersecurity initiatives 

None.

With NATO membership and progress towards EU membership, Albania is increasingly participating in European cybersecurity initiatives and programmes.

Initiatives in the Field of Information Society in SNSHI (Intersectoral Strategy for the Information Society), are as follows:

  • Keeping children safe online and encouraging and coordinating the process for codes of conduct
  • Establishment of the National Agency for Computer Security (ALCIRT)
  • Establishment of PKI (public key government infrastructure) infrastructure and provision of secure services
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