Data Protected - Spain
Last updated February 2024
General | Data Protection Laws
National Legislation
National Supervisory Authority
Scope of Application
Personal Data
Sensitive Personal Data
Data Protection Officers
Accountability and Privacy Impact Assessments
Rights of Data Subjects
Security
Transfer of Personal Data to Third Countries
Enforcement
ePrivacy | Marketing and cookies
National Legislation
Cookies
Marketing by E-mail
Marketing by Telephone
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General | Data Protection Laws
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National Legislation
General data protection laws
The General Data Protection Regulation (EU) (2016/679) (“GDPR”).
The Spanish Data Protection and Digital Rights Act 3/2018 (the “Data Protection Act”) helps implement the GDPR and creates a new digital charter of rights.
Entry into force
The GDPR has applied since 25 May 2018.
The Data Protection Act applies from 7 December 2018.
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National Supervisory Authority
Details of the competent national supervisory authority
Agencia Española de Protección de Datos (the “AEPD”)
C/Jorge Juan, 6
28001 Madrid, Spain
Tel +34 900 293 183/ +34 900 293 621
The AEPD is the national data protection authority and represents Spain on European Data Protection Board.
Notification or registration scheme and timing
There is no obligation to notify regulators of any processing under the GDPR. However, controllers and processors must keep a record of their processing and make it available to their supervisory authority on request (subject to limited exemptions).
Under the Data Protection Act, controllers and processors are required to register their data protection officers with the AEPD within ten days of their appointment (please see section Data Protection Officers below).
Exemptions to notification
Not applicable.
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Scope of Application
What is the territorial scope of application?
The GDPR applies to the processing of personal data in the context of the establishment of a controller or processor in the EU.
It also contains express extra-territorial provisions and will apply to controllers or processors based outside the EU that: (i) offer goods or services to individuals in the EU; or (ii) monitor individuals within the EU. Controllers and processors caught by these provisions will need to appoint a representative in the EU, subject to certain limited exemptions.
The European Data Protection Board has issued Guidelines on the territorial scope of the GDPR (3/2018).
Is there a concept of a controller and processor?
Yes. The GDPR contains the concept of a controller, who determines the purpose and means of processing, and a processor, who just processes personal data on behalf of the controller.
The European Data Protection Board has issued Guidelines on the concepts of controller and processor in the GDPR (7/2020).
Both controllers and processors are subject to the rules in the GDPR, but the obligations placed on processors are more limited.
Are both manual and electronic records subject to data protection legislation?
Yes. The GDPR applies to both electronic records and structured hard copy records.
Are there any national derogations?
The GDPR does not apply to law enforcement activities which are instead subject to the Law Enforcement Directive. The GDPR also does not apply to areas of law that are outside the scope of Union law, such as national security, and does not apply to purely personal or household activity.
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Personal Data
What is personal data?
Personal data is information relating to an identified or identifiable natural person.
This is a broad term and includes a wide range of information. The GDPR expressly states it includes online identifiers such as cookies.
Is information about legal entities personal data?
No. However, information about sole traders and partnerships is likely to be personal data.
What are the rules for processing personal data?
All processing of personal data must comply with all six general data quality principles. Personal data must be: (i) processed fairly, lawfully and transparently; (ii) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (iii) adequate, relevant and not excessive; (iv) accurate and, where necessary, up to date; (v) kept in an identifiable form for no longer than necessary; and (vi) kept secure.
The processing of personal data must also satisfy at least one condition for processing personal data. These conditions are that the processing is: (a) carried out with the data subject’s consent; (b) necessary for the performance of a contract with the data subject; (c) necessary for compliance with a legal obligation; (d) necessary in order to protect the vital interests of the data subject; (e) necessary for the public interest or in the exercise of official authority; or (f) necessary for the controller’s or a third party's legitimate interests, except where overridden by the interests or fundamental rights and freedoms of the data subject.
These rules are almost identical to the core requirements for processing personal data in the old Data Protection Directive. The European Data Protection Board has issued Guidelines on the performance of a contract processing condition for online services (2/2019).
Are there any formalities to obtain consent to process personal data?
The requirements for consent under the GDPR are strict.
To be valid, consent must be in clear and plain language and, where sought in writing, separate from other matters. Consent must be based on affirmative action so pre-ticked boxes are not acceptable. Consent might not be valid if: (i) there is any detriment to the data subject for refusing; (ii) there is an imbalance of power; (iii) consent for multiple purposes is bundled together; or (iv) the consent is a condition of entering into a contract. Finally, consent can be withdrawn at any time.
In practice, other processing conditions should be relied on where possible. Consent will only be an appropriate processing condition if the individual has a genuine choice over the matter, for example, whether to be sent marketing materials.
The European Data Protection Board has issued Guidelines on consent (5/2020).
Are there any special rules when processing personal data about children?
Consent from a child in relation to online services will only be valid if authorised by a parent. A child is someone under 16 years old, though Member States may reduce this age to 13.
In Spain, the Data Protection Act sets the minimum age of consent at 14 years old.
Are there any special rules when processing personal data about employees?
The GDPR allows Member States to implement more specific national rules governing the processing of personal data about employees. It may also be possible to process special category personal data where it is necessary for a legal obligation in the field of employment law.
Under the Data Protection Act, employees are granted specific rights to privacy when using digital devices, the right to disconnect from the use of digital tools, the right to privacy against the use of video-surveillance in the workplace and geo-localisation systems. Employers are required to take certain measures to protect their employees' privacy in the workplace, such as informing them in advance or involving the employees' representatives when setting out the criteria for use of the digital devices in the workplace.
The AEPD has issued Guidelines on data protection in employment relations (available only in Spanish) in May 2021. In this document, the AEPD provides guidance on the specific processing activities carried out by employers when processing employee personal data, such as the screening of candidates on social media as part of the recruitment process, processing of personal data in the context of whistleblowing, Spanish companies’ obligation to record the daily working hours of their employees, and the works council’s right to be informed of the functionality of algorithms and artificial intelligence used in relation to the employees, including profiling.
In 2023, the AEPD has also issued Guidelines for the use of biometric systems for monitoring work attendance hours. In these Guidelines, the AEPD has adopted a stringent approach to the use of employees’ biometric data by companies to record the daily working hours of their employees as required under Spanish employment law. The AEPD considers that such a processing is generally unlawful even if data subjects have given consent and where an alternative to the use of biometric data is available. Additional information is available here.
Furthermore, the Spanish Act 2/2023 on the protection of whistleblowers sets out additional and specific data protection obligations, including on transparency, data collection, retention and deletion, data subject rights, and communication of data to third parties. You can read more about this topic here.
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Sensitive Personal Data
What is sensitive personal data?
Special category data is personal data consisting of racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation. The decision in OT (C-184/20) might suggest this should be interpreted broadly to include publication of information that indirectly discloses these characteristics.
The inclusion of genetic and biometric data is new and an extension to the types of sensitive personal data in the Data Protection Directive.
Information about criminal offences is dealt with separately and is subject to even tighter controls.
Are there additional rules for processing sensitive personal data?
Special category data may only be processed if a condition for processing special category data is satisfied. A condition arises where the processing: (a) is carried out with the data subject’s explicit consent; (b) is necessary for a legal obligation in the fields of employment, social security and social protection law; (c) is necessary to protect the vital interests of the data subject or another person where the data subject is unable to give consent; (d) is carried out by a non-profit-seeking body and relates to members of that body or persons who have regular contact; (e) relates to data made public by the data subject; (f) is necessary for legal claims; (g) is for reasons of substantial public interest under EU or Member State law; (h) is necessary for healthcare reasons; (i) is necessary for public health reasons; or (j) is necessary for archiving, scientific or historical research purposes or statistical purposes and is based on EU or Member State law.
According to the Data Protection Act, explicit consent of the individual is not sufficient for processing data where the main purpose is to identify that individual’s ideology, trade union membership, religion, sexual orientation, beliefs or racial or ethnical origin. This is to prevent discrimination.
Are there additional rules for processing information about criminal offences?
It is only possible to process personal data relating to criminal convictions or offences if: (a) it is carried out under the control of official authority; or (b) when the processing is authorised by EU or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects.
Are there any formalities to obtain consent to process sensitive personal data?
Consent to process sensitive personal data must be explicit. The general restrictions on consent, set out above, will also apply. This suggests a degree of formality, such as ticking a box containing the express words “I consent”. It is unlikely explicit consent could be obtained through a course of conduct.
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Data Protection Officers
When must a data protection officer be appointed?
Both controllers and processors must appoint a data protection officer if: (i) they are a public authority; (ii) their core activities consist of regular and systematic monitoring of data subjects on a large scale; or (iii) their core activities consist of processing special category personal data on a large scale (including processing information about criminal offences).
Data protection officers must also be appointed where required by national law. According to the Data Protection Act, there is a mandatory obligation to appoint data protection officers for, among others, professional associations, educational institutions, some electronic communication services providers, credit institutions, insurance companies, investment services companies, those carrying out profiling for marketing purposes, companies in the health sector and online game companies.
The Data Protection Act also allows organisations to voluntarily appoint a data protection officer.
What are the duties of the data protection officer?
The data protection officer must be involved in all data protection issues and cannot be dismissed or penalised for performing their role. The data protection officer must report directly to the highest level of management. Details of the data protection officer must be communicated to the relevant supervisory authority.
The Article 29 Working Party has issued Guidelines on Data Protection Officers (WP243).
The designated data protection officers should be registered with the AEPD within ten days of their appointment. The Data Protection Act sets out additional provisions on the qualification, position, and liability of data protection officers.
Further, the AEPD has issued a report on data protection officers (available only in Spanish) aimed at clarifying some misconceptions about their status, position, and functions within an organisation in line with the Article 29 Working Part’s Guidelines. For instance, the AEPD emphasises the independence of data protection officers and their advisory and supervisory role, and notes that their functions are confined to assisting controllers and processors in data protection matters, and not undertaking decision-making. You can read more about this report here.
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Accountability and Privacy Impact Assessments
Is there a general accountability obligation?
The GDPR adds a new general accountability obligation under which you must not only comply with these new rules, but also be able to demonstrate you comply with them. This means ensuring suitable policies are in place supported by audit and training.
Are privacy impact assessments mandatory?
A privacy impact assessment must be conducted where “high risk” processing is carried out. This includes: (a) systematic and extensive profiling that produces legal effects or significantly affects individuals; (b) processing on a large scale either special categories of personal data or personal data relating to criminal convictions and offences; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV). Where the assessment indicates the risk cannot be mitigated, the controller must consult the relevant supervisory authority.
The Article 29 Working Party has subsequently issued Guidelines on Data Protection Impact Assessments (WP 248). It suggests there are nine criteria to consider to determine whether to conduct a privacy impact assessment, and that an assessment should be made if two or more of those criteria are met. This is arguably wider than the criteria set out in the paragraph above.
In Spain, the AEPD has issued a list of “high risk” processing activities which are subject to the requirement for a data protection impact assessment. The said activities include: (i) profiling or evaluation of the data subjects, including the collection of their data related to several areas of his/her life; (ii) automated decision-making or processing that contributes significantly to such automated decision-making; (iii) processing that involves the observation, monitoring, supervision, geo-location, or control of the data subjects in a systematic and extensive manner; or (iv) use of biometric data for the purpose of uniquely identifying a natural person.
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Rights of Data Subjects
Privacy notices
A controller must provide data subjects with a privacy notice setting out how the individual’s personal data will be processed. The privacy notice must contain the enhanced transparency information.
The Article 29 Working Party has issued Guidelines on Transparency (WP260).
Under the Data Protection Act, the privacy notice should be given in a layered manner. This means there must be: (i) a first layer containing certain minimum information, and (ii) a full privacy notice containing all the enhanced transparency information. The AEPD has issued detailed guidelines on privacy notices.
The privacy notices can be in a foreign language (e.g. English) provided that the controller can prove that the data subject understands that language.
Rights to access information
Data subjects will have a right to access copies of their personal data by making a written request to the controller. The initial request is free, though a charge can be made for subsequent requests. Controllers can refuse the request if it is manifestly unfounded or excessive. The right to obtain a copy of personal data should not adversely affect the rights and freedoms of others. The response must be provided within a month, though this can be extended by two months if the request is complex.
The European Data Protection Board has issued Guidelines on rights of access (1/2022).
Rights to data portability
Data subjects will also have a right to data portability where the condition for processing personal data is consent or the performance of a contract. It entitles individuals to obtain any personal data they have “provided” to the controller in a machine-readable format. Individuals can also ask for the data to be transferred directly from one controller to another. There is no right to charge fees for this service.
The Article 29 Working Party has issued Guidelines on data portability (WP242).
Under the new digital charter of rights, individuals have a specific right to data portability for social media data.
Right to be forgotten
A data subject can ask that their data be deleted in certain circumstances. However, those circumstances are relatively limited, for example where the processing is based on consent, that consent is withdrawn and there are no other grounds for processing. Even where the right does arise, there are range of exemptions, for example where there is a legal obligation to retain the data.
The European Data Protection Board has issued Guidelines on the criteria of the Right to be Forgotten in the search engines cases under the GDPR (part 1) (5/2019).
Under the new digital charter of rights, individuals have the right to be de-listed from internet searches and social media. This is supplemented by a specific right to “rectification on the internet” which is particularly relevant to social media, digital and information society services platforms.
Objection to direct marketing
A data subject can object to their personal data being processed for direct marketing purposes at any time. This includes profiling to the extent related to direct marketing.
Other rights
The GDPR contains a range of other rights, including a right to have inaccurate data corrected. There is also a right to object to processing being carried out in the performance of a public task or under the legitimate interests condition.
Finally, there are controls on taking decisions based solely on automated decision making that produce legal effects or similarly significantly affects the data subject. The Article 29 Working Party has issued Guidelines on Automated Decision Making and Profiling (WP251).
The Data Protection Act introduces a new digital charter of rights. This provides the right to net neutrality, universal access to internet, digital security, digital education and digital wills. Employees are also granted new rights to privacy when using digital devices, the right to disconnect from the use of digital tools, the right to privacy against the use of video-surveillance in the workplace and geo-localisation systems.
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Security
Security requirements in order to protect personal data
The GDPR contains a general obligation to implement appropriate technical and organisational measures to protect personal data.
In addition, controllers and processors must ensure, where appropriate: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of its information technology systems; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
Specific rules governing processing by third party agents (processors)
A controller must ensure that any processor it instructs will ensure adequate security for personal data and otherwise meet the requirements of the GDPR.
The controller must have written contracts with its processor containing the enhanced processor clauses.
The AEPD issued detailed Guidelines on the provisions of contracts with third-party processors(available only in Spanish).
Notice of breach laws
A personal data breach must be notified to the relevant supervisory authority unless it is unlikely to result in a risk to data subjects. The notification must, where feasible, be made within 72 hours. If the personal data breach is a high risk for data subjects, those data subjects must also be notified.
Specific notice of breach laws apply to the electronic communications sector under national laws implementing the Privacy and Electronic Communications Directive and to operators of essential services and digital service providers under national laws implementing the Network and Information Systems Directive.
The European Data Protection Board has issued Guidelines on Personal Data Breach Notification (9/2022) and Examples regarding Personal Data Breach Notification (1/2021).
Data controllers in certain sectors may be required to inform sectoral regulators of any breach. For example, electronic communications service providers must give notice of a personal data breach to the AEPD and to the users affected (except in certain cases). The AEPD has issued detailed guidelines on personal data breaches and breach notification.
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Transfer of Personal Data to Third Countries
Restrictions on transfers to third countries
The GDPR contains a restriction on transborder dataflows. This restriction does not apply if the transfer is to a whitelisted country.
Transfers can be made: (i) pursuant to a set of Standard Contractual Clauses; (ii) pursuant to binding corporate rules; (iii) to an importer who has signed up to an approved code or obtained an approved certification; or (iv) where otherwise approved by the relevant supervisory authority. However, following the decision in Schrems II (C-311/18) any transfer made on this basis must be subject to a transfer impact assessment of the laws of the relevant third country and supplemented by supplementary protections where necessary.
The European Data Protection Board has issued Recommendation on European Essential Guarantees for surveillance measures (2/2020) and a Recommendation on measures that supplement transfer tools (1/2020) to help conduct this transfer impact assessment. The European Commission has also issued an FAQ on the new Standard Contractual Clauses.
Transfers are also possible if an individual derogation applies. These derogations allow a transfer if it: (i) is made with the data subject’s explicit consent; (ii) is necessary for the performance of a contract with, or in the interests of, the data subject; (iii) is necessary or legally required on important public interest grounds, or for legal claims; (iv) is necessary to protect the vital interests of the data subject; (v) is made from a public register; or (vi) is made under the so-called minor transfer exemption.
The European Data Protection Board has issued Guidelines on derogations applicable to international transfers (2/2018). Finally, the European Data Protection Board has issued Guidelines on the interplay between Article 3 and international transfers (2/2018) to help identify when a transfer takes place.
Notification and approval of national regulator (including notification of use of Standard Contractual Clauses)
In general, there is no need for prior approval from a supervisory authority. However, this depends on the justification for the transfer.
For example, there will be no obligation to get approval for the use of Standard Contractual Clauses (though it is possible some supervisory authorities may want to be notified of their use). In contrast, it will be necessary to get approval to rely on binding corporate rules, and the supervisory authority must be informed of transfers made using the minor transfers exemption.
In Spain, the ability to carry out transborder dataflows based on Standard Contractual Clauses without prior approval by the AEPD is a significant amendment.
Use of binding corporate rules
The GDPR places binding corporate rules on a statutory footing. It will be possible to obtain authorisation from one supervisory authority (subject to approval through the consistency mechanism) that will cover transfers from anywhere in the EU.
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Enforcement
Fines
The GDPR is intended to make data protection a boardroom issue. It introduces an antitrust-type sanction regime with fines of up to 4% of annual worldwide turnover or €20m, whichever is the greater. These fines apply to breaches of many of the provisions of the GDPR, including failure to comply with the six general data quality principles or carrying out processing without satisfying a condition for processing personal data.
A limited number of breaches fall into a lower tier and so are subject to fines of up to 2% of annual worldwide turnover or €10m, whichever is the greater. Failing to notify a personal data breach or failing to put an adequate contract in place with a processor fall into this lower tier.
Fines can only be imposed where there is an intentional or negligent infringement of the GDPR, see Deutsche Wohnen (C-807/21).
The EDPB has published Guidelines on the calculation of administrative fines (04/2022).
Imprisonment
The Spanish Criminal Code does not criminalise failure to comply with the Data Protection Act as such.
However, it establishes a number of related criminal offences, such as unauthorised access to a computer system, interception of data and computer fraud. It is also an offence to carry out “sexting”, hacking or the sending of offensive communications by electronic means, which can result in imprisonment.
Compensation
Data subjects have a right to compensation in respect of material and non-material damage. This requires more than a mere infringement of the GDPR and there must be actual material or non-material damage, however there is no minimum threshold of seriousness before compensation is available, see Österreichische Post (C-300/21).
Other powers
Regulators will have a range of other powers and sanctions at their disposal. This includes investigative powers, such as the ability to demand information from controllers and processors, and to carry out audits. They will also have corrective powers enabling them to issue warnings or reprimands, to enforce an individual’s rights and to issue a temporary or permanent ban on processing.
Practice
Fines: Some of the most significant fines issued by the AEPD are set out below:
- In February 2024, a Spanish bank was fined €5,000,000 for a security breach that allowed one of its customers to access data related to another customer’s transactions. The information disclosed included the national identification number, bank account number, and address of the affected customer. The AEPD concluded that the security incident had the potential to affect all of the bank’s customers. The sanction also called for the controller to implement adequate security measures to avoid further personal data breaches.
- In November 2023, a Spanish energy company was fined €6,100,000 for a security breach that involved the illicit trafficking of customer personal data through a social media platform. According to the AEPD, the company took months to reset or delete the compromised accounts, allowing the unauthorised access to personal data within the company’s systems during such period.
- In July 2023, a Spanish bank was fined €2,500,000 for inadequate handling of customers’ personal data, as customers were only able to submit documents or information requested by the bank via email, a method deemed insecure by the AEPD. The AEPD stated that the bank did not consider the potential risks to the rights and freedoms of the data subjects when it required them to submit personal data though this means.
- In May 2022, Google was fined €10,000,000 for sharing the personal data of its data subjects with the Lumen Project, a research database, without an appropriate legal basis and opt-out mechanism for those affected, and for infringing the GDPR’s right to be forgotten. The shared data included personally identifiable data, email addresses and individuals' legal claims. The sanction also called for Google to delete all the personal data shared with Lumen and halt further use of that data. Additional information is available here.
- In March 2021, a telecommunications company was fined €8,150,000 for sending SMS messages and making telephone calls to customers who had opposed the processing of their data for advertising, for failing to assess whether its data processors offer adequate technical and organisational safeguards, and for carrying out international data transfers without implementing appropriate security measures.
- In January 2021, a Spanish bank was fined €6,000,000 for unlawfully processing clients’ personal data and for not providing sufficient information regarding the processing of personal data. Namely, the data subject’s consent obtained did not meet all the elements of valid consent, as it was not freely given, specific and informed. Additionally, the requirements for the validity of the company’s legitimate interest as a lawful basis were not met.
Generally, the AEPD remains very active in terms of investigation and enforcement. According to the AEPD's latest annual 2022 report, the AEPD issued a total of 5,436 decisions, 378 of which resulted in monetary penalties totalling over €20m.
The top five (5) sectors in which the highest aggregate fines imposed by the AEPD in 2022 relate to: breaches or infringements carried out in relation to internet services (€11.5m), advertising (€2.3m), employment (€2.2m), personal data breaches (€822,000), and fraudulent contracting (€707,000). You can read more about the AEPD's latest annual 2022 here.
The AEPD is expected to continue to vigorously enforce data protection rights under the GDPR.
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ePrivacy | Marketing and cookies
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National Legislation
ePrivacy laws
Spanish Law 34/2002 on information society services and electronic commerce (the “ECA”) implemented Article 13 of the Privacy and Electronic Communications Directive. The ECA is effective as of 12 October 2002.
The rest of the provisions concerning the processing of personal data and the protection of privacy in the electronic communications sector set out in the Privacy and Electronic Communications Directive such as itemised billing, traffic data, location data other than traffic data, directories of subscribers, etc. were incorporated into Spanish Law in 2005 and were re-enacted by the telecoms law (Law 9/2014 on Telecoms).
The ECA was amended to implement the amendments to the Privacy and Electronic Communications Directive.
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Cookies
Conditions for use of cookies
Under the ECA it is necessary to inform users of the use of cookies and to obtain consent to the use of cookies unless the cookie is strictly necessary for the provision of a service to that subscriber or user. The ECA was amended to expressly state it is an infringement to use cookies without providing the relevant information to, or obtaining consent from, the data subject.
Regulatory guidance on the use of cookies
In June 2022, the AEPD issued new Guidelines on the use of cookies (only available in Spanish) which provides a useful understanding of the AEPD’s position and practical guidance on the applicable transparency and consent requirements. These Guidelines were updated in July 2023 to require a “reject” button in the first layer of cookie banners, aligning the position of the AEPD with other EU supervisory authorities. You can find more information about this update of the Guidelines here.
Accordingly, consent to the use of cookies must comply with the GDPR’s requirements, including through a clear affirmative action, and cannot be validly obtained through pre-ticked boxes.
Fines - In accordance with the ECA, the AEPD has imposed several penalties for failure to provide an adequate cookie information notice and/or consent:
- Twitter Spain was fined €30,000 for installing cookies onto users' devices without obtaining their prior consent. Specifically, the AEPD found that 7 cookies were automatically installed when accessing the company’s website. Further, the cookie banner included on the website did not allow users to reject the cookies or provide a link to change cookie settings.
- A Spanish low-cost airline company was fined €30,000 (eventually reduced to €18,000 for voluntary payment) for not providing an adequate opt-out option to disable the cookies being installed through the company’s website (and instead merely referring to the configuration of the browser).
- A global furniture and accessories company was fined €10,000 for installing cookies onto users' devices without obtaining their prior consent. In particular, the AEPD found that 23 cookies were downloaded automatically to users' devices whenever they visited the company’s website.
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A company operating a legal services website was fined with €5,000 for using dark patterns (i.e. overloading and skipping) within the cookie settings panel of the website. The AEPD found that the company’s cookie settings defaulted to consent to the processing by a number of third parties. Users were forced to uncheck these options individually in order to refuse cookies and were not offered a “reject all” option. An "accept all" button was, however, available.
The maximum penalty that can be imposed for this type of infringements under the ECA is €30,000. However, an infringement under the ECA can also imply an infringement under the GDPR in cases where personal data is misused (e.g. processing personal data without an appropriate lawful basis).
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Marketing by E-mail
Conditions for direct marketing by e-mail to individual subscribers
The ECA provides that it is forbidden to send advertising or promotional communications by e-mail, or by any other equivalent means, if they have not been previously requested or expressly authorised by the recipient of such communication.
According to the Data Protection Act, organisations are required to check the marketing objection lists (“Robinson Lists”) before sending electronic communications for marketing purposes.
Conditions for direct marketing by e-mail to corporate subscribers
The ECA provides that it is forbidden to send advertising or promotional communications by e-mail, or by any other equivalent means, if they have not been previously requested or expressly authorised by the recipient of such communication. The sending of direct marketing e-mails would not require consent if they are sent to a legal entity using “non-personal” electronic contact details (e.g. info@company.es).
According to the Data Protection Act, organisations are required to check the Robinson Lists before sending electronic communications for marketing purposes.
Exemptions and other issues
It is permitted to send e-mails for the purposes of direct marketing if the similar products and services exemption applies based on an existing contractual relationship. The ECA also prohibits direct marketing e-mails from being sent if: (i) the identity of the sender is disguised or concealed; or (ii) an opt-out address is not provided.
The sender must also include the eCommerce information.
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Marketing by Telephone
Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)
Data processing for marketing purposes (including direct marketing by telephone to individual subscribers) carried out by human means is permitted if the requirements set down by the Data Protection Act are met. That is when: (i) the data have been obtained lawfully (including from fixed telephony directories which are deemed a source accessible to the public); and (ii) the data subject has not objected to receiving calls for marketing purposes. Similarly, organisations are required to check the Robinson Lists before contacting the individuals by telephone for marketing purposes.
In this regard, in June 2023, the AEPD issued Guidance on users’ rights regarding nuisance marketing calls under the Spanish General Telecommunications Act 11/2022. This Guidance sets forth the criteria to be applied for interpreting the new limitations on marketing calls set forth in such Act. The Guidance states that controllers may rely either on consent or legitimate interests of data subjects when making marketing calls. Additional information on this Guidance is available here.
Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)
Direct marketing by telephone which is addressed at an individual within a corporation, must meet the requirements set out above for marketing by telephone to individual subscribers.
If the direct marketing by telephone carried out by human means is not aimed at individuals within a corporation but at a corporation itself, the Data Protection Act and the ECA apply no restrictions. However, Law 9/2014 on Telecoms gives such end user the right to object to receiving calls for marketing purposes.
Exemptions and other issues
No exemptions apply.
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