The Law of Ukraine No. 2297 VI "On Personal Data Protection" as of 1 June 2010 ("Data Protection Law") is the main legislative act regulating relations in the sphere of personal data protection in Ukraine. At 20 December 2012 Data Protection Law has been substantially amended by the Law of Ukraine "On introducing amendments to the Law of Ukraine On Personal Data Protection" dated 20 November 2012 No. 5491-VI ("Amendments to the Data Protection Law").
In addition to the Data Protection Law, certain data protection issues are regulated by subordinate legislation specifically developed to implement the Data Protection Law.
The Data Protection Law essentially complies with EU Data Protection Directive 95/46/EC.
The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, executed in Strasbourg on 28 January 1981 and the Additional Protocol to the Convention regarding supervisory authorities and trans border data flows, executed in Strasbourg on 8 November 2001 have also been ratified by Ukrainian Parliament on 6 July 2010 ("Convention on Automatic Processing of Personal Data") and thus are fully effective in Ukraine.
General data protection issues are also regulated by the Constitution of Ukraine dated 28 June 1996, the Civil Code of Ukraine dated 16 January 2003 No 435 IV, the Law of Ukraine "On Information" dated 2 October 1992 No 2657 XII, Law of Ukraine "On Protection of Information in the Information and Telecommunication Systems" dated 5 July 1994 No. 80/94 VR and some other legislative acts.
DEFINITION OF PERSONAL DATA
Data Protection Law defines "personal data" as data or an aggregation of data on an individual who is identified or can be precisely identified.
DEFINITION OF SENSITIVE PERSONAL DATA
There is no definition of "sensitive personal data" as such envisaged by Ukrainian legislation.
At the same time, there is general prohibition to process personal data with regard to racial or ethnic origin, political, religious ideological convictions, participation in political parties and trade unions, accusation in criminal offences or conviction to criminal punishment as well as data relating to health or sex life of an individual.
Processing of the listed data is allowed if an unambiguous consent has been given by the personal data subject or based on exemptions envisaged by Data Protection Law (e.g. the processing is performed for the reasons of protection of vital interest of individuals, healthcare purposes, in course of criminal proceedings, anti-terrorism purposes, etc.).
NATIONAL DATA PROTECTION AUTHORITY
The State Service of Ukraine on Personal Data Protection ("SSUPDP").
The database containing personal data should be registered with the SSUPDP and the relevant record should be included into the State Register of Personal Data Databases.
Personal data owners which maintain their databases to secure and effect labour relations, as well as maintain personal data databases of the members of non-government, religious organizations, professional associations and political parties are released from mandatory registration of such personal data databases.
According to Data Protection Law as well as The Regulation on State Register of Databases Containing Personal Data approved by the Cabinet of Ministers of Ukraine the above registration shall be performed by the owner of personal data by means of submitting respective application to SSUPDP. The form of the application, as well as the order for filing the application has been approved by Ministry of Justice of Ukraine.
The Data Protection Law envisages that applications for the registration of a personal data database shall contain, inter alia, information as regards the owner of personal data; the name and place of location of database; the purpose of personal data processing; information on composition of personal data, information on third parties to whom the personal data are transferred, information on cross-border transfers of personal data, information on processors of database; confirmation as regards maintaining the security of personal data in the database.
SSUPDP takes a decision on registration of personal data database within 30 working days from the day of submission of application.
Personal data owners shall notify SSUPDP on any changes in information submitted thereto during registration of database within 10 business days following the day when the relevant changes occurred.
DATA PROTECTION OFFICERS
Legal entities shall establish a special department or appoint a responsible person (data protection officer) to organise the work related to protection of personal data during the processing thereof.
COLLLECTION AND PROCESSING
The Data Protection Law provides for a requirement of obtaining the consent of personal data subjects on processing of their personal data. The consent of personal data subjects is determined by the Data Protection Law as their expression of will to allow the personal data processing in the form that enables a conclusion on granting such a consent. In some instances provided by Data Protection Law (e.g. legislative permission for processing of personal data, conclusion and execution of a transaction in favour of the personal data subject, protection of interests of the subject or owner of personal data) personal data of individuals may be processed without consent.
Pursuant to the Data Protection Law, as a general rule personal data subjects shall be informed, at the moment of collection of their personal data, of; the owner of their personal data; composition and content of their personal data being collected; their rights; purpose of their personal data collection; and the persons to whom their personal data will be transferred. However, in cases when the personal data of individuals have been collected based on the following grounds the personal data subjects shall be informed of the above within 10 working days from the moment of their personal data's collection:
- legislative permission of the owner of personal data on processing of personal data exclusively for the purposes of fulfilling its authorities;
- conclusion and execution of a transaction, in which the subject of personal data is a party or which has been concluded in favour of the subject of personal data or for taking actions, which preceded conclusion of a transaction at the request of the subject of personal data;
- protection of vital interests of the subject of personal data; or
- need to protect legitimate interests of the owner of personal data, third parties, except where a subject of personal data demands to stop processing of his/her personal data and the need in protection of personal data prevail over such interest.
In addition, the Data Protection Law provides the subject of personal data with the following rights:
- to be aware of the location of the database containing his/her personal data, the purpose and the title of the database, the address of the owner or user of the personal data or to obtain the mentioned information;
- to obtain information as regards the conditions of providing access to personal data, in particular, information on third parties, to which his/her personal data is transferred;
- to access his/her personal data;
- to obtain a reply within 30 calendar days from the date of receipt of his/her request, informing the individual whether his/her personal data is contained in the relevant database;
- to provide a reasonable request to change or destroy his/her personal data by any owner and processor of the personal data if the data is processed illegally or is inaccurate;
- to protect his/her personal data from unauthorised processing and accidental loss, elimination or damage with respect to intended encapsulation, not providing or the untimely providing of personal data, and also to protection from providing invalid or discrediting information regarding the individual;
- to appeal violations in the course of personal data processing to the SSUPDP or to the court;
- to introduce limitations as regards right on its personal data processing while giving the consent;
- to revoke its consent on personal data processing;
- to be aware of the mechanism of automatic processing of personal data;
- to be protected from the automated decision that has a legal effect; and
- to use the means of legal protection in the case of violation of rights to personal data.
The owner of the personal data can entrust processing of personal data to the processor of personal data under the written agreement between them. In this case the processor of personal data may process the personal data only for the purposes and in the volume provided by such agreement. The transfer of personal data to the processor of personal data can be allowed only by respective consent of personal data subject.
In accordance with Data Protection Law the personal data may be transferred to foreign counterparties only on condition of ensuring appropriate level of protection of personal data by the respective state of transferee. Pursuant to the Data Protection Law, such states include member-states of the European Economic Area and signatories to the EC Convention on Automatic Processing of Personal Data. The list of the states ensuring appropriate level of protection of personal data will be determined by the Cabinet of Ministers of Ukraine.
Personal data may be transferred abroad based on one of the following grounds:
- unambiguous consent of personal data subject;
- cross-border transfer is needed to enter into or perform a contract between the personal data owner and third party in favour of personal data subject;
- necessity to protect vital interests of the personal data subject's;
- necessity to protect public interest, establishing, fulfilling and enforcing of legal requirement; or
- appropriate guarantees of the personal data owner as regards non-interference in personal and family life of personal data subject.
The subjects of personal data relations are obliged to take appropriate technical and organisational measures to ensure the protection of personal data against unlawful processing, including against loss, unlawful or accidental elimination, and also against unauthorised access. In this regard, any owner of personal data shall determine a special department or a responsible person to organise the work related to protection of personal data during the processing thereof.
Additionally, the Model Order of Personal Data Processing approved by the Ministry of Justice of Ukraine envisages general provisions as regards the processing of personal data in automated systems (the procedure of access by the personnel of personal data owners to the personal data within, automated system the necessity to protect the automated system with antivirus software and technical facilities preventing the leak of personal data) as well as processing of personal data in the form of card-files (the necessity to protect the card-files from unauthorised access, the procedure of formation of separate files containing personal data depending on the purpose of personal data processing).
The Data Protection Law also establishes that specific individuals – private entrepreneurs, doctors with an appropriate license, advocates and notaries – are obliged to personally ensure the protection of personal data owned by them.
There is no requirement to report data security breaches or losses to the appropriate state authority.
According to Data Protection Law SSUPDP is the state authority responsible for controlling the compliance with personal data protection legislation. Failure to comply with provisions of Data Protection Law can lead to responsibility prescribed by law.
Violation of personal data protection legislation may result to civil, criminal and administrative liability.
If the violation has led to material or moral damages, the violator can be obliged by the court to reimburse them.
Code of Ukraine on Administrative Offenses envisages liability for the following actions:
- failure to notify or delay in providing notification of the subject of personal data on the owner of his/her personal data, composition and content of his/her personal data being collected, his/her rights, purpose of his/her personal data collection and the persons to whom their personal data will be transferred may lead to fine of up to EUR 638;
- failure to notify or delay in providing notification of the SSUPDP on personal data protection about change of information submitted for the state registration of personal data database may lead to the fine for up to EUR 638;
- deviation from the state registration of personal data database may lead to the fine for up to EUR 1594;
- non-observance of established procedure for protection of personal data in personal data database which led to unauthorised access to personal data may lead to the fine for up to EUR 1594;
- non-fulfilment of legal requirements of the officials of SSUPDP as regards elimination of violations in the sphere of personal data protection may lead to the fine for up to EUR 319.
The criminal liability, prescribed by the Criminal Code of Ukraine envisages fines for up to EUR 1625 or correctional works for a term of up to two years, or up to six months arrest, or up to three years of limitation of freedom for the illegal collection, storing, use, elimination, spreading of confidential information about individual or illegal change of such information.
Ukrainian legislation does not specifically regulate the area of electronic marketing. However, in case, when electronic marketing involves processing of individuals personal data, it should take place in compliance with requirements of Ukrainian data protection legislation.
Considering requirements of the Data Protection Law outlined above, in order for the use of individuals personal data for electronic marketing purposes, it is required to obtain appropriate consent of individual which would reflect processing of his/her personal data for such purposes.
ONLINE PRIVACY (INCLUDING COOKIES AND LOCATION DATA)
There is no specific legislation regulating the sphere of online privacy in Ukraine. However, the Data Protection Law applies to the extent online activities involving processing of personal data.
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