CMS Expert Guide: Data Law Navigator

Data protection

1. Local data protection laws and scope

In addition to the GDPR, the Portuguese legal framework comprises specific local legislation on data protection, namely:

  • Law no. 58/2019 of 8 August, Portuguese Data Protection Law on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (transposing Directive 2016/679 of the European Parliament and of the Council of 27 April 2016);
  • Law no. 59/2019 of 8 August, which approves the rules on the processing of personal data for prevention purposes, detection, investigation or prosecution of criminal offences or the enforcement of penalties (transposed Directive (EU) 2016/680 of the European Parliament and the Council, of 27 April 2016);
  • Law no. 41/2004 of 18 August, amended by the Law no. 46/2012 of 29 August, concerning the processing of personal data and privacy in electronic communications sector (Directive 2002/58/EC on privacy and electronic communications);
  • Law no. 32/2008 of 17 July, concerning the  retention of data generated or processed in the context of electronic communications services (Directive 2006/24/EC);

The Portuguese framework also comprises a set of legal diplomas that foresee multiple legal provisions regarding data protection, such as:

  • Constitution of the Portuguese Republic, sets forth the main principles and fundamental rights regarding privacy and data protection;
  • Law no. 7/2009 of 12 February, (Portuguese Labour Code), that includes provisions on data protection regarding employees;
  • Law no. 34/2013 of 16 May, regarding the use of video surveillance systems  by private security entities and auto protection;
  • Law no. 1/2005 of 10 January, which establishes the provisions concerning the use of video surveillance means by public authorities in public places;
  • Decree-Law no. 207/2005 of 29 November, on electronic surveillance used by public authorities in traffic control.
  • Regulation no. 798/2018, approved by the Portuguese Data Protection Authority regarding the List of Personal Data Processing Activities subject to Data Protection Impact Assessment

The principal data protection legislation is Law 19.628 “on protection of private life” (also known as the Chilean Data Protection Law or “CDPL”). 

There are also two other legal provisions that regulate some aspects of personal data processing:

  • The Chilean Constitution, in its article 19 No. 4 and No. 5, which enshrine the right to privacy, as well as the protection of personal data, and also;
  • Law 19.496 (Consumer Protection Law) that establishes the regulation regarding unsolicited commercial marketing communications for consumers.

The Personal Data Protection Act 2012 (PDPA) is the data protection law that governs the collection, use, disclosure and handling of personal data. It recognises both the rights of individuals to protect their personal data, including rights of access and correction, and the needs of organisations to collect, use or disclose personal data for legitimate and reasonable purposes.

The PDPA also provides for the establishment of a national Do Not Call (DNC) Registry. The DNC Registry allows individuals to register their Singapore telephone numbers to opt out of receiving marketing phone calls, mobile text messages such as SMS or MMS, and faxes from organisations.

Some key subsidiary legislation that operates alongside the PDPA include the Personal Data Protection Regulations 2021, Personal Data Protection (Notification of Data Breaches) Regulations 2021 and Personal Data Protection (Do Not Call Registry) Regulations 2013.

Personal Data Protection Act 2012: https://sso.agc.gov.sg/Act/PDPA2012 

2. Data protection authority

Comissão Nacional de Proteção de Dados (CNPD) https://www.cnpd.pt/

Chile does not have a Data Protection Authority.

The Personal Data Protection Commission (PDPC) 

3. Anticipated changes to local laws

There are no anticipated changes.

Congress is discussing a new law that will replace the current one and raise the protection standards.

Anticipated changes:

  • A new legal definition: The objective will be to update and expand it, in accordance with international standards;
  • Legitimate Basis for Processing: A more robust basis for processing has been incorporated;
  • The creation of a Data Protection Authority: A National Directorate for Personal Data Protection with the obligation to register databases;
  • Cross-Border Data Transfer: It will be regulated for the first time. According to the current law, there is no statement that controls cross-border data transfers.
  • A new set of infringements;
  • A complaint procedure: This procedure will consist of three steps. First, a direct claim to the data processor. Secondly, an administrative claim before the new National Directorate for Personal Data Protection, and finally, a judicial claim that disputes the decision of the National Directorate for Personal Data Protection.

The following changes to the PDPA have been passed by Singapore’s Parliament, however they have not yet come into effect:

  • Data portability – mandatory obligation for organisations to provide an individual’s data, at the individual’s request, to another organisation in a commonly used machine-readable format; 
  • provisions which exempt organisations from the proposed data portability obligation and the obligations to provide an individual with access to or to correct personal data at the individual’s request in respect of “derived personal data” (i.e. new data that is created through the processing of other data by applying business-specific logic or rules); and
  • Higher penalties – an increase in the financial penalties that may be imposed on organisations: in the case of a breach of the data protection provisions, 10% of its annual turnover in Singapore or SGD 1m, whichever is higher; and in the case of a breach of the prohibitions on the use of dictionary attacks and address-harvesting software, 5% of its annual turnover in Singapore or SGD 1m, whichever is higher. 

4. Sanctions & non-compliance

CNPD under the current law has administrative supervision and enforcement powers. According to Portuguese Law, CNPD has the power to impose fines when there is serious infringement of:

Administrative sanctions:

1. Law no. 58/2019, of 8 August (Portuguese Data Protection Law)

Serious administrative offences:

  • From EUR 5,000 to EUR 20,000,00 or 4% of annual worldwide turnover, depending on the whichever is higher, being a large company;
  • From EUR 2,000 to EUR 2m or 4% of annual worldwide turnover, as appropriate. Whichever is higher, in the case of SMEs;
  • from EUR 1,000 to EUR 500,000 in the case of natural persons.

Considerable administrative offences:

  • From EUR 2,500 to EUR 10m or 2% of the annual worldwide turnover according to whichever is higher, being a large company;
  • From EUR 1,000 to EUR 1m or 2% of annual worldwide turnover, as appropriate whichever is higher, in the case of SMEs;
  • From EUR 500 to EUR 250,000 in the case of natural persons. 

2. Law no. 41/2004, of 18 August (Processing of personal data and privacy in electronic communications sector)

Serious administrative offences:

  • From EUR 1,500 to EUR 25,000 when committed by natural persons; 
  • From EUR 5,000 to EUR 5m when committed by legal persons.

Considerable administrative offences:

  • From EUR 500 to EUR 20,000 when committed by natural persons; 
  • From EUR 2,500 to EUR 2.5bn when committed by legal persons.

3. Law no. 32/2008, of 8 August (retention of data generated or processed in the context of electronic communications services)

Administrative offences:

  • From EUR 1,500 to EUR 50,000 when committed by natural persons; 
  • From EUR 5,000 to EUR 10m, when committed by legal persons.
Criminal sanctions:

1. Law no. 58/2019, of 8 August  (Portuguese Data Protection Law)

Incompatible use of data with the purpose of processing 
Prison sentence of up to one year or a fine of up to 120 days

Inappropriate access 
Prison sentence of up to one year or a fine of up to 120 days

Misappropriation of data 
Prison sentence of up to one year or a fine of up to 120 days

Tampering or destruction of data 
Prison sentence of up to two years or a fine of up to 240 days

Falsifying data
Prison sentence of up to two years or a fine of up to 240 days

Breach of confidentiality 
Prison sentence of up to one year or a fine of up to 120 days

Disobedience 
Prison sentence of up to one year or a fine of up to 120 days

Note: The attempt of any of the above-mentioned crimes is punishable.

2. Law no. 32/2008, of 8 August (retention of data generated or processed in the context of electronic communications services)

Crimes related to the violation of the security of personal data, non-blocking of data or the access by unauthorised persons in punishable with prison sentence of up to two years or a fine of up to 240 days. This penalty may be doubled if the action is premeditated.

Note: The attempt or negligence of any of the above-mentioned crimes is punishable.

Since there is no Data Protection Authority, sanctions can only be imposed by a judge (in a civil procedure). To this end, Law 19.628 establishes a special procedure called “habeas data”. However, it is common practice to also use the “Remedy for the Protection of Constitutional Rights”, a constitutional action, to protect the fundamental rights affected by an illegal or arbitrary treatment of personal data.

Administrative sanctions:
  • In relation to the enforcement of the data protection provisions, the PDPC may issue fines of up to SGD 1m for each breach.
  • In relation to the enforcement of the DNC Registry provisions and the prohibition on use of dictionary attacks and address-harvesting software, the PDPC may issue a fine up to an amount not exceeding SGD 200,000 in the case of an individual, and up to SGD 1m in any other case.
  • The PDPC may also issue directions for non-compliance, which includes directions to stop collection, use or disclosure of personal data, and to destroy personal data collected. 
Criminal sanctions:
  • Imprisonment for a term not exceeding: 
    • Two years – for knowing or reckless unauthorised disclosure of personal data; knowing or reckless unauthorised use of personal data for a gain or to cause a harm or loss to another person; or knowing or reckless unauthorised re-identification of anonymised information;
    • 12 months – for unauthorised request to access or correct personal data about another individual; obstructing or hindering the PDPC in the exercise of its powers or duties; knowing or reckless false statement made to the PDPC; or knowing attempts to mislead the PDPC; or
    • Six months – for neglect or refusal to provide any information or produce any document to the PDPC or attend before the PDPC without reasonable excuse; or unauthorised use of a symbol or representation identical to or which resembles that of the PDPC. 
  • Criminal fines may also be imposed and varies depending on the specific offence, although in general not exceeding SGD 10,000 in the case of individuals, and SGD 100,000 in the case of organisations.
Others: 
  • Individuals have a private right of action and may seek relief by way of injunction, declaration or damages for damages or losses suffered directly as a result of a contravention of the PDPA.     

5. Registration / notification / authorisation

With the application of the GDPR there is no obligation to notify the CNPD as a legal requirement to begin processing activities/operations. Hence, data controllers can begin the processing without the need of a prior authorisation and/or inform/registry before the CNPD.

There is no registration or notification obligation since there is no data protection authority in Chile and the law does not establish this requirement.

There is no requirement for organisations to register with the PDPC. However, voluntary registration of the Data Protection Officer is encouraged. 

6. Main obligations and processing requirements

There are no derogations from the GDPR. 

Data processing: 

According to the CDLP the processing of all data shall be carried out:

  • In a manner consistent with the law;
  • For the purposes permitted by the legal system; and
  • With attention to the full exercise of the fundamental rights of the data subject.

Consent of the data subject: Article 4 of the law establishes that the processing of personal data is permitted only when the law authorises it, or the subject expressly consents or authorises it. However, the law does not provide a definition of what the “authorisation” or “consent” of the data subject means or entails.

Quality: Article 6 of the law establishes that personal data will be: destroyed or cancelled when the purpose of its storage has no legal basis or when it has expired; modified when it is inaccurate, inexact, misleading or incomplete; and blocked when it cannot be destroyed or cancelled, and its accuracy cannot be established or whose validity is doubtful.

Confidentiality: Article 7 of the law establishes that people who work in the processing of personal data, in the private and public sector, must maintain confidentiality when the data comes from sources not accessible to the public, as well as with respect to other data information related to the data bank; an obligation that does not cease upon completion of its functions or activities in that field.

Purpose: Personal data will be used only for the purposes for which it was collected, unless it is obtained from sources accessible to the public (Article 9 of the law)
Personal data: Article 10 of the law prescribes that sensitive personal data, defined as any information regarding characteristics of a physical or moral nature of an individual or facts or circumstances of his private life, such as personal habits, racial or ethnic origin, ideologies and political opinions, religious beliefs or convictions, physical or mental health and sexual life, cannot be processed unless:

  • The law authorises it;
  • The data subject expressly accepts said processing;
  • Such data is necessary to establish or grant health benefits that pertain to the respective data subject.

Data security: Article 11 of the law establishes that those responsible for the registries or personal data must “take care of them with due diligence” and be liable for damages.

Organisations, wherever located, that process personal data of individuals in Singapore are required to comply with the PDPA.

The PDPA sets out ten main data protection obligations which are to be complied with when processing personal data.

Under the PDPA, to collect and process personal data lawfully, organisations must comply with the following obligations:

  1. Consent Obligation – to obtain the consent of the individual; 
  2. Purpose Limitation Obligation – to collect, use or disclose personal data about an individual for the purposes that a reasonable person would consider appropriate in the circumstances and for which the individual has given consent;
  3. Notification Obligation – to notify individuals of the purposes for which the organisation is intending to collect, use or disclose their personal data on or before such collection, use or disclosure of personal data;
  4. Access and Correction Obligation – upon request, provide information in which the individual’s personal data has been or may have been used or disclosed and to correct any error or omission in an individual’s personal data;
  5. Accuracy Obligation – make reasonable effort to ensure that personal data collected by or on behalf of the organisation is accurate and complete;
  6. Protection Obligation – make reasonable security arrangements to protect the personal data that the organisation possesses or controls;
  7. Retention Limitation Obligation – cease retention of personal data or remove the means by which the personal data can be associated with particular individuals when it is no longer necessary for any business or legal purpose;
  8. Transfer Limitation Obligation – ensure that the standard of protection provided to the personal data transferred to another country will be comparable to the protection under the PDPA; 
  9. Data Breach Notification Obligation – assess whether a data breach is notifiable and notify the affected individuals and/or PDPC where it is assessed to be notifiable; and
  10. Accountability Obligation – implement policies and procedures to meet its obligations under the PDPA, and make information about its policies and practices publicly available and to appoint a data protection officer.

Organisations that have contracted to process personal data on behalf of another organisation may be considered a “data intermediary”. 

A data intermediary that processes personal data pursuant to a written contract will only be responsible for the Protection Obligation, the Retention Obligation and the Data Breach Notification Obligation – protecting the personal data in its care, ensuring that the personal data is not retained by the data intermediary when there is no longer a business or legal need to do so, and notifying the organisation or public agency for which it is processing personal data on behalf of where the data intermediary discovers that a data breach has occurred.

7. Data subject rights

There are no derogations from the GDPR. 

Access to data

The rights pertaining to all data subjects to demand from the person responsible for any public or private data bank, any information that pertains to them, its source, the purpose for collecting, the legality of the data processing and the name of the individuals or entities to which the data is regularly transmitted. 

Correction and deletion

Correction or modification: The right of all data subjects to request the modification of inaccurate, incomplete, misleading or outdated data that concerns them.

Cancellation

The right of all data subjects to demand the destruction or cancellation of personal data when the purpose of its storage has no legal basis or when it has expired.
Data subjects have the right to request the cancellation of data, if the data storage is not authorised by law or if the authorisation has expired. The data subject is also entitled to exercise this right even if this data has been voluntarily provided or is being used for commercial communications, and he no longer wishes to appear in such records, temporarily or permanently.

Marketing objection

The Consumer Protection Law regulates unsolicited commercial or marketing communications sent by email to consumers. That communication must obtain a valid email address to which the recipient may request the suspension of future communications.

Under the PDPA, individuals have the following rights:

  • private right of action for direct loss or damage suffered directly as a result of the contravention of the PDPA; 
  • right to ask the organisation to provide the contact of a person who can answer, on behalf of the organisation, their questions about the collection, use or disclosure of the personal data;
  • right to withdraw their consent for the collection, use or disclosure of their personal data by an organisation at any time, with reasonable notice;
  • right to request access to their personal data that an organisation possesses or controls, including to be provided with information about the ways in which such personal data has or may have been used or disclosed within the year before the request;
  • right to request an organisation to correct an error or omission in their personal data; and
  • right to file a complaint.

8. Processing by third parties

There are no derogations from the GDPR. 

The laws do not regulate processing by third parties. According to Article 8 of the CDLP:
If the processing of personal data is carried out by virtue of a mandate, the general rules will apply. Also, the mandate must be granted in writing, regulating the conditions of use of the data.

An organisation must observe the same obligations under the PDPA in respect of personal data processed on its behalf by a data intermediary as if the personal data were processed by the organisation itself.

Data intermediaries that process personal data on behalf of and for the purposes of another organisation pursuant to a written contract will only be subject to the Protection Obligation, the Retention Obligation and the Data Breach Notification Obligation.

9. Transfers out of country

There are no derogations from the GDPR. 

The law does not establish specific requirements or restrictions on transfers of personal data abroad.

However, the law contains rules for the automated transmission of data. Article 5 of the law prescribes that the person responsible for the database can establish an automated system for the transmission of personal data, provided that it adequately ensures the rights or interests of the parties involved and such transmission is strictly related to the duties and objectives of the participating entities.

In the case of a request for the transmission of personal data through an electronic network, the following shall be recorded:

  • Identification of the requesting party;
  • Reason and purpose of the request;
  • Type of data transmitted.

The law does not restrict transfers of personal data to third countries.

Since there are no data transfer restrictions, foreign companies mostly rely on standard clauses to binding corporate rules established by EU legislation. 

The transfer of personal data does not require registration/notification or prior approval from the relevant data protection authority or entity (given the fact that this body does not exist)

There is a limitation on transfers of personal data outside Singapore unless conditions are met. The transfers of personal data outside of Singapore requires the recipient of the personal data to provide safeguards equivalent to or greater than the requirements under the PDPA. The PDPA does not provide a white-list of countries that are deemed to have equivalent protection.

As such, organisations may transfer personal data overseas if they have taken appropriate steps to comply with the data protection provisions in respect of the transferred personal data while such personal data remains in their possession or control. When the personal data is transferred to a recipient outside of Singapore, organisations need to ensure that the recipient is bound by legally enforceable obligations to provide a standard of protection comparable to that under the PDPA. Such legally enforceable obligations include obligations imposed under law, any contract or binding corporate rules. In addition, organisations and data intermediaries that are certified under the Asia-Pacific Economic Cooperation Cross Border Privacy Rules System are deemed to be bound by legally enforceable obligations for the purpose of transfers of personal data outside Singapore. 

10. Data Protection Officer

Pursuant to Portuguese Data Protection Law (Law no. 58/2019, of 8 August), the designation of data protection officers in public authorities is mandatory.

Additionally, it states the designation of Data Protection Officers in private entities is mandatory when the data controller and the data processor shall appoint a data protection officer whenever the principal private activity involves:

  • Processing operations which require regular and systematic control of large-scale data subjects, because of their nature, scope and or purpose; or
  • Large-scale processing of special categories of data pursuant to Article 9 of the GDPR, or personal data related to criminal and offense convictions under Article 10 of the GDPR.

There is no legal requirement for the appointment of a Data Protection Officer.

Organisations are required to designate at least one individual, known as the Data Protection Officer (DPO), to oversee the data protection responsibilities within the organisation and ensure compliance with the PDPA. 

The business contact information of the DPO must be made available to the public. Although not a legal requirement, in practice, the PDPC does request for the information of the DPO to be registered with it.

11. Security

The GDPR clearly provide that data controller’s and data processor´s must implement appropriate technical and organisational measures to safeguard the data processing risks. Data controllers and data processors should adopt internal policies and implement measures which meet in particular the principles of data protection by design and data protection by default.

The following are examples of the expected security measures:

  • Pseudonymisation and encryption of personal data;
  • Ensuring ongoing confidentiality, integrity, availability and resilience of processing systems; and
  • A process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.

In addition, Resolution no. 41/2018 of the Council of Ministers was approved, establishing the minimum compulsory and recommended technical requirements applicable to the IT systems and networks of public entities, which should be adopted until 29 September 2019.

For example, data storage systems must ensure redundancy, resiliency and availability with no single point of failure. Two types of back-ups (online and off-site) should be secured, with the off-site back-ups stored in a separate location.

There are no legal requirements to take appropriate technical and security measures to protect personal data, but the data processor will always be liable for the damages caused by the leaking of information.

Organisations must protect personal data in their possession or under their control by making reasonable security arrangements to prevent unauthorised access, collection, use, disclosure, copying, modification, disposal or similar risks, and the loss of any storage medium or device on which personal data is stored.

12. Breach notification

There are no derogations from the GDPR.

There is no legal obligation to notify to the authority data breach events.

Organisations are required to assess whether a data breach is notifiable, and to notify the affected individual(s) (where required) and/or the PDPC where the data breach is assessed to be notifiable. A data breach is assessed to be notifiable where: 

  • the scale of the data breach is of a significant scale, i.e. where it involves the personal data of 500 or more individuals; or 
  • the data breach causes significant harm to affected individual(s) where the compromised personal data relates to: 
    • the individual’s full name or alias or identification, in combination with: (a) financial information that is not publicly disclosed; (b) identification of vulnerable individuals; (c) life, accident and health insurance information that is not publicly disclosed; (d) specified medical information; or (e) information related to adoption matters; or (f) private key used to authenticate or sign an electronic record or transaction; or 
    • individual’s account identifier and data for access into the account.

Organisations must notify the PDPC as soon as practicable, but no later than 72 hours after it makes the assessment that a data breach is notifiable. Where required to notify the affected individual(s), the notification by organisations must be as soon as practicable (at the same time or after notifying the PDPC). 

In addition, data intermediaries that process personal data on behalf of and for the purposes of another organisation or a public agency are not required to assess whether the breach is notifiable or to notify the PDPC, but are required to notify that other organisation or public agency when a potential or actual data breach is detected without undue delay. 

Sector specific regulation, such as the Notices and Guidelines on Technology Risk Management issued by the Monetary Authority of Singapore, may also require breach notification under different timelines. 

13. Direct marketing

Regarding advertising and marketing matters, Portugal has Law no. 41/2004 of 18 August on Personal Data Protection and Privacy in Telecommunications. In Article 13-A on Unsolicited Communications, it states that communications for direct marketing purposes require the individual's consent and the disclosure of adequate information to the data subject. 

For this purpose, data controllers normally rely on an opt-in solution, taking into account that in some cases there can also be a soft opt-in option (particularly in cases where the data subject is already in a contract with the respective data controller). 

General data protection laws (including the GDPR) also give the data subject the right to object at any time to direct marketing purposes, namely through an opt-out option.

We also underline that for marketing purposes the consent must be explicit.

Direct marketing is regulated by the Consumer Protection Law. This Law regulates unsolicited commercial marketing communications sent by email to consumers, specifying, among other things, that such communications must contain a valid email address to which the recipient may request the suspension of further communications, also known as an opt-out system. From the moment the recipient requests the suspension of sending further emails, any communication or unsolicited email is prohibited by law.

The DNC provisions of the PDPA generally prohibit organisations from sending marketing messages (in the form of voice calls, text or fax messages) of a commercial nature to Singapore telephone numbers, including mobile, fixed-line, residential and business numbers, registered with the DNC Registry, unless the consumer has provided their clear and unambiguous consent in written or other accessible form for sending the marketing message to the Singapore telephone number.

The organisation may still send a direct marketing message where the sole purpose of the message is: 

  • to facilitate, complete or confirm an earlier transaction between the sender and recipient; 
  • to provide warranty information, product recall information, or safety or security information with respect to a product/service purchased by the recipient;
  • to deliver goods or services that the recipient is entitled to receive under an existing transaction; or 
  • related to the subject matter of an ongoing relationship between the sender and the recipient. 

Individuals may subsequently opt out of receiving direct marketing messages. Upon receiving an individual’s opt-out request, the organisation must stop sending such messages to that individual's telephone number 21 days after the opt-out.

Under the PDPA, organisations are not permitted to send, cause to be sent or authorise to send any message with a Singapore link to telephone numbers generated or obtained through the use of a dictionary attack or address harvesting software. This prohibition also applies with respect to electronic messages generated or obtained through the use of a dictionary attack or address harvesting software under the Spam Control Act. 

In addition, under the Spam Control Act, organisations are prohibited to send, cause to be sent or authorise to send any unsolicited commercial electronic messages in bulk if they do not comply with the statutory conditions (e.g. the message needs to include an email address to which the recipient may submit an unsubscribe request).

14. Cookies and adtech

Portugal has no particular rule regarding the use of Cookies so we currently use the rules stated in the GDPR and Directive 2002/58/EC (ePrivacy Directive).

The use of cookies requires the individual's explicit consent and the disclosure of adequate information to the data subject. Currently, data controllers need to rely on consent to secure the adequate legal basis for the processing of personal data.

The CDPL does not directly regulate the use of cookies or similar technologies. 

The PDPA applies to the collection, use or disclosure of personal data using cookies.

However, consent is not required for cookies that:

  • do not collect personal data; and
  • for internet activities clearly requested by the user where the individual is aware of the purposes of such collection, use and disclosure and has voluntarily provided his personal data for such purposes.

If the individual configures his browser to accept certain cookies but rejects other, he may be found to have consented to the collection, use and disclosure of his personal data by the cookies he has chosen to accept. In such a circumstance, the PDPC has confirmed that consent can be implied. However, the failure of an individual to actively manage his browser settings does not imply that he has consented to the collection, use and disclosure of his personal data.

15. Risk scale

Medium (moderate)

Low

Moderate

Cybersecurity

1. Local cybersecurity laws and scope

The NIS directive was transposed into Portuguese law by Law 46/2018 of 13 August, which embodies the Legal Regime of Cyberspace Security.

In addition to the GDPR, the Portuguese legal framework comprises local legislation on cybersecurity, namely:

  • Law no. 46/2018, of 13 August, which transposes Directive 2016/1148 of 6 July, concerning measures for a high common level of security for networks and information systems across the Union.
  • Law no. 16/2019, of 22 August, which transposes Directive 2017/541 of March, on  combating  terrorism  and  replacing  Council  Framework  Decision  2002/475/JHA  and  amending  Council  Decision  2005/671/JHA
  • Decree-Law no. 69/2014, of 9 May, approving the constitution of the National Cyber Security Centre (CNCS), establishing the terms of its institutional operations, amended by Decree-Law no. 136/2017 of 6 November.
  • Decree-Law no. 62/2011, of 9 May, on the identification and protection proceedings to essential infrastructure (Directive 2008/114/EC of 8 December 2008, on the identification and designation of European critical infrastructures and the assessment of the need to improve their protection).
  • Decree-Law no. 116-A/2006, of 16 July, amended by the Decree-Law no. 161/2012 of 31 July, on the electronic information systems certification for public essential infrastructure.
  • Resolutions and Decisions regarding National Cyber Security policies and strategies (namely, the Resolution of the Council of Ministers no. 12/2012 of 16 January, no. 19/2013 of 5 April, no. 7-A/2015 of 20 February, no. 41/2018 and no. 92/2019 and Decision of the Defence Minister no. 13692/2013 of 28 October).
  • The eIDAS Regulation (EU) 910/2014), which is directly applicable in Portugal without the need for transposition and establishes a wide range of trusted services, as well as the cross-border mutual recognition of electronic means of identification (eID).

Notwithstanding this legislation, the Portuguese framework also comprises a set of legal diplomas that includes dispositions at the level of personal data protection, such as:

  • Law no. 109/2009, of 15 September, implementing the Council Framework Decision 2005/222/JHA, of 24 February 2005, and the Budapest Convention on Cybercrime on the national framework (“Cybercrime Law”).
  • Portuguese Criminal Code (Decree-Law no. 48/95 of 15 March, amended by Law no. 16/2018 of 27 March. 
  • Law no. 52/2003, of 22 August (Law on the Fight Against Terrorism), implementing the Council Framework Decision 2002/475/JHA of 13 June, with the more recent amendments of Law no. 60/2015 of 24 June

Chile does not have a specific law to regulate cybersecurity. However, many laws regulate some aspects of cybersecurity, for example:

  • Ley N°20.285/2008 - Law on access to public information
  • Ley N°17.336/2004 - Intellectual Property Law
  • Ley N°19.927/2004 - Law amending criminal codes regarding child pornography crimes
  • Ley N°19.880/2003 - Law that establishes the bases of the administrative procedures that govern the acts of State administration bodies
  • Ley N°19.799/2002 - Law on electronic documents, electronic signature and certification services of said signature
  • Ley N°19.223/1993 - Law on criminal figures related to computing
  • Ley N°20.478/2010 - Law on recovery and continuity on critical and emergency conditions of the public telecommunications system
  • Ley N°20.285/2008 - Law on access to public information
  • Ley N°17.336/2004 - Intellectual Property Law
  • Ley N°19.927/2004 - Law amending criminal codes regarding child pornography crimes
  • Ley N°19.880/2003 - Law that establishes the bases of the administrative procedures that govern the acts of State administration bodies
  • Ley N°19.799/2002 - Law on electronic documents, electronic signature and certification services of said signature
  • Ley N°19.223/1993 - Law on criminal figures related to computing
  • Ley N°20.478/2010 - Law on recovery and continuity of critical and emergency conditions of the public telecommunications system

The Cybersecurity Act 2018 governs the prevention, management and response to cybersecurity threats and incidents, and regulates owners of critical information infrastructure and cybersecurity service providers. The provisions generally apply to any critical information infrastructure, computer and computer system located wholly or partly in Singapore. The provisions also apply to the Singapore Government, except that the Singapore Government will not be liable to prosecution for an offence. 

The related regulations and code of practice that operate alongside the Cybersecurity Act 2018 are the Cybersecurity (Critical Information Infrastructure) Regulations 2018, Cybersecurity (Confidential Treatment of Information) Regulations 2018 and the Cybersecurity Code of Practice for Critical Information Infrastructure. 

The Computer Misuse Act (CMA) is the principal legislation on cybercrimes. The CMA applies to any person regardless of nationality and citizenship, outside as well as within Singapore, where the accused, computer program or data was in Singapore at the material time of the offence or the offence causes or creates a significant risk of serious harm in Singapore.  

Local cybersecurity laws also include sector-specific rules, such as guidelines and notices issued by the Monetary Authority of Singapore for the financial sector (MAS rules). 

2. Anticipated changes to local laws

There is a proposal before the European Commission to update the NISD. Once the proposal is agreed and then adopted, the EU Member States will have 18 months to transpose the updated Directive into their domestic legislation.

On October 2018, a bill was introduced to the Senate to strengthen the cybercrime law, thus adapting the current regulation to the Budapest Convention standards. One of the amendments proposed in the bill is the inclusion of any cybercrime as a cause for a legal entity criminal liability under law No. 20,393. 

Thereby, if the amendment is approved, legal entities must prevent any cybercrimes from being carried out by their owners, controllers, executives, representatives or managers. The failure to maintain reasonable preventive measures shall cause the legal entity to be subject to criminal liability and therefore the following sanctions:

  • Fines from UTM 400 (an indexed unit of account) to UTM 300,000;
  • Partial or total loss of benefits or absolute prohibition of receiving them for a specified period;
  • Temporary or permanent prohibition to execute contracts with the State of Chile; and
  • Dissolution of the legal entity.

This bill was approved by the Senate and now has moved to the second constitutional procedure. It is likely to be approved in 2021.

Cybersecurity Act 2018: Provisions relating to the licensing of cybersecurity service providers are not yet in effect. The Cyber Security Agency of Singapore has stated that the implementation of the licensing framework will be communicated at a later date.

3. Application 

  • Law no. 46/2018, of 13 August, establishes the legal framework of cyberspace security, by transposing Directive 2016/1148 of 6 July, concerning measures for a high common level of security of network and information systems across the Union.
    This Law applies to organisations within the following sectors/infrastructures: drinking water, energy (electricity and gas), nuclear, finance, telecom, transportation and water-control.
  • Law no. 16/2019, of 22 August, formally modifies Law no. 52/2003 (counter-terrorism), of 22 August, by transposing Directive 2017/541 of 15 March, on  combating  terrorism  and  replacing  Council  Framework  Decision  2002/475/JHA and  amending  Council  Decision  2005/671/JHA. 
  • Decree-Law no. 62/2011, of 9 May, sets forth the main proceeding to the identification and protection (security) of essential infrastructure, particularly on health, security and economic and social wellbeing in the energy and transport sectors.
  • Decree-Law no. 116-A/2006, of 16 July, amended by the Decree-Law no. 161/2012 of 31 July, on the electronic information systems certification for public essential infrastructure.
  • Resolution of the Council of Ministers no. 12/2012, that proceeds to revise the National Information Security structure and, among others, to establish the basis for the formation of the CNCS. 
  • Decree-Law no. 69/2014 of 9 May, approving the constitution of the CNCS and establishing the terms of its institutional operations. 
  • Resolution of the Council of Ministers no. 19/2013 of 5 April, sets forth the strategic concept of national defence, taking into consideration the risks of cyberterrorism and cybercrime.
  • Resolution of the Council of Ministers no. 41/2018 of 28 May, approves minimum requirements for information systems used by the State administration. 
  • Resolution of the Council of Ministers no. 92/2019 of 5 June, defines the first national strategy on the security of network and information systems (2019-2023). 
  • The decision of the Defence Minister no. 13692/2013 of 28 October that with regard to national defence strategy, establish the main lines of Cyberdefence Policies.
  • Resolution of the Council of Ministers no. 36/2015 provides the National Security Strategies for Cyberspace.
  • Resolution of the Council of Ministers no. 7-A/2015 of 20 February, regarding National Security on the fight against terrorism, particularly implementing the National Plan of Action against Cyberthreats.

N/A

  • Cybersecurity Act 2018: The Cybersecurity Act 2018 requires and authorises the taking of measures to prevent, manage and respond to cybersecurity threats and incidents; regulates owners of critical information infrastructures (CIIs); establishes the framework for the sharing of cybersecurity information; and regulates cybersecurity service providers. It also provides the regulator with the power to investigate cybersecurity threats or incidents in order to determine their impact, prevent further harm and future incidents. These investigative powers can be delegated to authorised persons, and can be exercised in respect of any computer or computer system in Singapore; not only CIIs. The level of intrusiveness of such powers that can be exercised will depend on the severity of the situation.
  • CMA: The CMA makes provision for securing computer material against unauthorised access or modification, and to require or authorise the taking of measures to ensure cybersecurity. In particular, the CMA criminalises cybercrime such as ecommerce scams and hacking, and also makes it illegal for: (a) any person to provide or receive personal information which he suspects was obtained through unauthorised means; and (b) any person to deal with items designed for, adapted to and used to commit computer crimes, including hardware and software (e.g. computer programmes, passwords or access codes).
  • MAS Rules: The MAS Rules, amongst other things, require regulated entities to: (a) conduct system and penetration testing; (b) continuously monitor and detect network and other types of cyber intrusions; and (c) require the board and senior management of the regulated entities to effectively implement that entity’s cyber resilience programme.

4. Authority

  • National Cyber Security Centre
  • National Cyber Security Centre (CNCS): https://www.cncs.gov.pt
  • Computer security incident response team (CERT)

N/A

5. Key obligations 

Law no. 46/2018, of 13 August:

  • The obligation to ensure appropriate and proportional technical and organisational security measures taken in response to evaluated risk level of security of network and information systems for public administrations.
  • The obligation to communicate any incident with substantial impact to the Upper Council of Cyberspace Security for digital service providers, operators of essential services and public administrations.

Decree-Law no. 62/2011, of 9 May: 

  • The obligation to make a security plan and to review it annually (the review must be conducted by the competent national authorities);
  • The need to designate an agent to be a point of contact in matters related to the security of Critical European Infrastructures (ICT), particularly in the exchange of information with the competent authorities concerning related risks and threats; 
  • There is an obligation to conduct an annual assessment of the threats across ICT sub-sectors.

Decree-Law no. 116-A/2006, of 16 July:

  • The law establishes an obligation to certify electronic information systems for public essential infrastructure;
  • GNS is the public entity that is responsible for accrediting natural and collective persons to access and handle classified information, as well as authorities for the accreditation and oversight of entities that operate within the scope of the Certification System State Electronic - Public Key Infrastructure (SCEE).

N/A

Cybersecurity Act 2018:
  • Owners of critical information infrastructure must: (a) comply with codes and directions; (b) conduct audits and risk assessments; (c) report cybersecurity incidents; and (d) participate in cybersecurity exercises; and
  • Certain cybersecurity service providers will need to be licensed.
CMA:
  • The following activities are prohibited: (a) unauthorised access or modification of computer material; (b) unauthorised use or intercept of computer services; (c) obstructing the use of computers; (d) unauthorised disclosure of computer access codes; (e) providing, receiving or supplying personal information which the person knows or suspects was obtained through unauthorised means; and (f) dealing with items designed for, adapted to and used to commit computer crimes. 
MAS Rules:
  • Establish methodologies for system testing, conduct penetration testing and source code review, and enable recovery measures and user access controls;
  • Board and senior management of regulated entities are to: (a) ensure appropriate accountability structure and organisational risk culture is in place, and (b) be trained in technology risk and cybersecurity;
  • Notify the MAS of breaches of security and confidentiality of financial institutions’ customer information (MAS Notices and Guidelines on Technology Risk Management and the MAS Guidelines on Outsourcing); and
  • Implement cybersecurity measures to protect IT systems, and prevent and mitigate against cyberattacks (MAS Notices on Cyber Hygiene).   

6. Sanctions & non-compliance 

Administrative sanctions:

1. Law no. 46/2018, of 13 August

Serious administrative offences:

  • From EUR 5,000 to EUR 5,000 when committed by natural persons;
  • From EUR 10,000 to EUR 50,000, when committed by legal persons.

Considerable administrative offences:

  • From EUR 1,000 to EUR 3,000 when committed by natural persons;
  • From EUR 3,000 to EUR 9,000 when committed by legal persons.

Administrative offences due to negligence:

  • Negligence is punishable, with minimum and maximum fines being reduced by half
Criminal sanctions:
  1. Law no. 109/2009, of September 15

IT fraudulent misrepresentation
Prison sentence of up to five years or a fine from 120 up to 600 days.
If the damage caused is considered high value, the prison sentence is up to ten years.

Damage to programmes or other computer data
Prison sentence of up to three years or an application of a fine;
If the damage caused is of high value, the prison sentence is up to five years or a fine up to 600 days;
If the damage caused is of very high value, the prison sentence is from one year up to 10 years. 

Computer sabotage
Prison sentence of up to five years or a fine up to 600 days

Illegal access
Prison sentence of up to five years or a fine up to 120 days

Unlawful interception
Prison sentence up to three years or an application of a fine

Illegal reproduction of protected programme
Prison sentence of up to three years or an application of a fine

Note: The attempt of any of the above-mentioned crimes is punishable

2. Law no. 52/2003, of 22 August

Crimes against communications or acts that destroy or render impossible the functioning of channels of communication or divert from their normal purpose, either definitively or temporarily, totally or partially, are punishable by prison sentence from two to ten years.

Anyone broadcasting a message to the public inciting the practice of the acts mentioned above through electronic communication media will be punished with a prison sentence from one to six years.

3. Specific criminal provisions under the Portuguese Criminal Code.

N/A

Administrative sanctions:

Cybersecurity Act 2018: 

  • Fines not exceeding SGD 10,000 for each contravention or non-compliance which is not an offence, but not exceeding SGD 50,000 in aggregate.
Criminal sanctions:

Cybersecurity Act 2018:

  • Varies depending on the specific offence, although in general a criminal fine not exceeding SGD 100,000 or imprisonment for a term not exceeding two to ten years or both.

CMA:

  • A criminal fine not exceeding SGD 50,000 or imprisonment for a term not exceeding ten years or both; and
  • In respect of protected computers, a criminal fine not exceeding SGD 100,000 or imprisonment for a term not exceeding 20 years or both.
Others: 

CMA: 

  • Compensation for damage caused to computer, programme or data. 

MAS Rules:

  • Varies depending on the type of regulatory instrument that set out the specific rules (e.g. directives, guidelines, notices or circulars). For example, the contravention of guidelines is not a criminal offence and does not attract civil penalties but may have an impact on the regulator's overall risk assessment of that entity and renewal of licences issued by the regulator. Circulars, on the other hand, are documents sent for the relevant entities’ information have no legal effect. Notices primarily impose legally binding requirements on a specified class of financial institutions or persons. 

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

CERT.PT is a service within the CNCS that coordinates responses to incidents involving State entities, critical infrastructure, operators of essential services, digital service providers and, in general, the national cyberspace, including any device belonging to a network or address block attributed to an operator of electronic communications, institution, collective or individual person based, or physically located, in Portuguese territory.

Also, there is a National Network of CSIRTs that provides a set of services to its members, coordinating any situations with the CNCS.

The National Cybersecurity Centre (which is part of GCHQ) does not regulate the NIS Regulations but has a role in providing technical support and guidance by the following:

  • a Single Point of Contact (SPOC) – for engagement with EU partners, coordinating requests and submitting annual incident statistics;
  • a Computer Security Incident Response Team (CSIRT) to provide advice and support where reported incidents are identified or suspected of having a cybersecurity aspect;
  • being a Technical Authority on Cyber Security – to support OESs and CAs with advice and guidance, and to act as a source of technical expertise. For example, it provides:
    • a set of 14 NIS Security Principles for securing essential services;
    • a collection of supporting guidance for each principle;
    • a Cyber Assessment Framework (CAF) incorporating indicators of good practice; and implementation of guidance and support to CAs.

Yes, the Singapore Computer Emergency Response Team (SingCERT) responds to cybersecurity incidents for its Singapore constituents. It was set up to facilitate the detection, resolution and prevention of cybersecurity related incidents on the Internet.

8. National cybersecurity incident management structure

The CNCS provides a response structure for handling cybersecurity crises and incidents that require national-level coordination and/or management (see the response above).

Yes, see above.

According to Singapore’s Cybersecurity Strategy, the National Cyber Security Centre (part of the CSA) will coordinate with sector regulators to provide a national level response and facilitate quick alerts to cross-sector threats.

9. Other cybersecurity initiatives 

The CNCS is cooperating with international entities regarding cybersecurity matters (i.e. European Commission, ENISA, ISAC, NATO, OSCE and Project “No more Ransom”)

No.

Singapore’s Cybersecurity Strategy sets out Singapore’s vision, goals and priorities for cybersecurity. It engenders coordinated action and facilitates international partnerships for a resilient and trusted cyber environment - see more here.

NA

Please see above. 

Portrait of José Luís Arnaut
José Luís Arnaut
Managing Partner
Lisbon
Portrait of João Leitão Figueiredo
João Leitão Figueiredo
Partner
Lisbon
Portrait of Sara Rocha
Sara Rocha
Associate
Lisbon
Ricardo Pintão
Portrait of Diego Rodríguez
Diego Rodríguez, LL.M.
Partner
Santiago
Sheena Jacob