Data Protected - Bulgaria
Contributed by Djingov, Gouginski, Kyutchukov & Velichkov
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
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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 Bulgarian Personal Data Protection Act (“PDPA”) was amended on 21 February 2019 to implement the GDPR and to transpose the Law Enforcement Directive. PDPA was last amended on 6 Оctober 2023.
Entry into force
The GDPR has applied since 25 May 2018.
The amended PDPA took effect from 1 March 2019.
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National Supervisory Authority
Details of the competent national supervisory authority
The Commission for Personal Data Protection (the “Commission”) stays as the principle national supervisory authority in Bulgaria.
The Commission for Personal Data Protection
2, Prof. Tsvetan Lazarov Blvd.
Sofia – 1592
Bulgaria
The effective chairperson of the Commission, Mr. Ventsislav Karadjov, represents Bulgaria at, and is one of the incumbent Vice-Chairmen of, the European Data Protection Board.
Compliance by the judiciary in Bulgaria, including Bulgarian courts, prosecution and investigation state bodies (which are part of the judiciary), with the GDPR and the PDPA is subject to the supervision and enforcement of the Inspectorate of the Supreme Judiciary Counsel in Bulgaria. The Inspectorate has the powers and authority in respect of the judiciary that the Commission has in respect of all other controllers and processors.
As of 30 July 2019, the Commission has and operates under new Rules of Operation that are in conformity with its powers and functions as national supervisory authority under the GDPR and the amended PDPA. The Rules of Operation were last amended on 28 April 2023.
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 the Commission on request (subject to limited exemptions).
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.
The PDPA permits the processing of data relating to deceased natural persons where the controller or processor has valid legal basis for such data processing. The controller or processor must implement appropriate measures to avoid such data processing having a negative effect on the rights and freedoms of natural persons or the public interest.
Further, the PDPA disapplies parts of the GDPR (particularly the rights of data subjects) where the processing is: (a) for the purposes of maintaining the National Archive Fund of Bulgaria; or (b) for statistical purposes. In addition, processing of personal data by public authorities and humanitarian organisations for humanitarian purposes and disasters is assumed to be on valid legal basis by operation of the law and thus, deemed lawful and also results in the disapplication of individual rights under the GDPR.
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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 Bulgaria, the PDPA sets out that consent-based processing (which includes but is not limited to processing in relation to online services) of personal data of children below 14 years of age may only take place if a valid consent is obtained by the parents or legal guardians of the child.
The PDPA does not contain specific additional provisions regulating the processing of personal data about children aged 14 to 18 years. However, under general rules of Bulgarian law these children have limited legal capacity and the validity of their legal acts and transactions are subject to the prior consent of their parents or legal guardians, except for minor transactions relating to children’s on-going and customary needs and save for transactions where children receive the benefit in consideration for their labour. On these grounds, consent-based processing of personal data of children aged between 14 and 18 may require the prior consent of the child’s parent or legal guardian.
In March 2022, the Commission published an information booklet “Rights of children and young persons when using digital platforms”, which states that for a child’s consent to be valid in respect of information society services (e.g., social media), the child must be at least 14 years old. For children under this age, consent must be expressly provided by the parent/guardian (and the consent of one parent/guardian is sufficient). However, preventive or counselling services are exempt from the parental consent requirement.
The booklet also includes recommendations to ensure that the consent satisfies the GDPR. In particular: (a) must the request for consent must be clearly formulated and separate from any other conditions for using the online service (b) consent must not be a prerequisite/condition for receiving the service; and (c) there should be separate consent for each processing activity. If consent is withdrawn, it should be possible for the child’s personal data to be immediately deleted after the withdrawal. The processing of personal data of children must be limited to data necessary for the provision of the service, and any additional features must be deactivated by default. Personal data of children must be visible to other users only in case the child changes the visibility settings.
The interface must be built on the principle of "active positive selection" (e.g., the user checks a box). It is illegal to use pre-ticked boxes (i.e., consent by default) and any vague or general consent forms. The interface should not be deceptive, and the settings should be accessible and understandable to children. Providers should offer easy to use instruments for access to data or erasure, rectification or restriction of data. In case the provider directly offers information society services, a data protection impact assessment is required.
The Commission also recommends that connected toys should have easily accessed privacy settings, notifications when personal data is being processed, the toy should also be used without internet connection and profiles must be set in accordance with age.
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 Bulgarian law processing of criminal record data is permitted in exceptional cases under: (i) the Private Security Activities Act with respect to employees for the positions of “head of security activities” and “security guard” (processing for employment purposes); (ii) the Insurance Code with respect to members of the management and controlling bodies of insurance and reinsurance companies (processing for licensing purposes); and (iii) Ordinances under the Credit Institutions Act with respect to members of the management and controlling bodies of banks and NBFI (processing for licensing purposes).
Under the PDPA, employers must adopt internal company rules and procedures where they introduce: (i) a whistleblowing system or other system for reporting workplace infringements; (ii) limitations or restrictions on the usage of the organisation’s resources for private or non-work related purposes; and/or (iii) introduction of a monitoring or access control system relating to workplace attendance and discipline. As a minimum, they must notify employees in a fair and accurate manner about the scope and operation of the relevant arrangement and about the employees’ and employer’s obligations thereunder.
In light of the principle of storage limitation, the PDPA provides that in the context of recruitment, personal data of job applicants who have not been offered a job position may be processed no longer than 6 months after the end of the recruitment process, unless the job applicant has given his or her consent for storage of the data for a longer period. Upon expiry of this period, the employer must delete or destroy the stored personal data and return the original documents provided by the data subject. In one of its opinions, the Commission clarified that job applicants data may be stored up to 3 years, if contained in internal company records, created by the employer with respect to the conduct of the application process on the basis of the legitimate interest of the employer to protect itself against accusations in discriminatory treatment (3 years being the statutory deadline for filling a discrimination complaint under the Bulgarian legislation). In this case, however, the employer must observe the data minimization principle by, for example, pseudonymisation of the data.
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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.
The PDPA also allows the processing of sensitive personal data where the processing is carried out for journalistic purposes or for the purposes of academic, artistic or literary expression. Processing of sensitive personal data for these purposes is deemed lawful if it sustains a balancing test against the data subject’s right to information and expression, and right to privacy. By a decision on 15 November 2019, the Constitutional Court of Bulgaria struck down the list of conditions that had implemented article 85 GDPR into the PDPA and to which the journalistic exception was subject to, and now these conditions do not apply.
Are there additional rules for processing information about criminal offences?
It is only possible to process information about 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.
Under Bulgarian law processing of criminal record data is permitted in exceptional cases under: (i) the Private Security Activities Act with respect to employees for the positions of “head of security activities” and “security guard” (processing for employment purposes); (ii) the Insurance Code with respect to members of the management and controlling bodies of insurance and reinsurance companies (processing for licensing purposes); and (iii) Ordinances under the Credit Institutions Act with respect to members of the management and controlling bodies of banks and NBFI (processing for licensing purposes).
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.
It is customary in Bulgaria and required by the Commission – though it is not strictly required under the law – that the explicit consent for the processing of sensitive personal data is obtained in writing.
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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).
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).
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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 February 2019, the Commission approved and made public a list of the kind of processing operations which are subject to the requirement for a data protection impact assessment pursuant to the terms of GDPR. The list includes the following kind of processing operations: (i) a large-scale and regular processing of biometric personal data for unique identification of individual(s); (ii) processing genetic data for profiling which has legal effects on or similarly significantly affects relevant data subject(s); (iii) processing location data for profiling with legal effects on or similarly significantly affects relevant on data subject(s); (iv) a large-scale processing of personal data where the data have not been obtained directly from the data subjects and data subjects are not aware, and have not been informed of the processing; (v) the personal data processing is carried out by a controller not established in the EU and having its designated representative in EU is in the territory of Bulgaria; (vi) regular and systemic processing where data subjects are not informed of their rights; (vii) processing of child’s personal data in relation to direct offering of information society services; and (viii) large scale migration of personal data to new technologies.
The Commission has expressly stated that the list is indicative and not exhaustive. The purpose of the list is to assist controllers in Bulgaria in fulfilling their obligations relating to data protection impact assessment and, in particular, in determining whether or not their processing activity requires a data protection impact assessment.
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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).
It is customary in Bulgaria, and often required by the Commission, that controllers give privacy notices to data subjects in Bulgaria in writing and in Bulgarian language in order for the controllers to be able to demonstrate that the information has been fairly provided to the data subject.
Under the PDPA, employers must adopt internal company rules and procedures where they introduce: (i) a whistleblowing system or other system for reporting workplace infringements; (ii) limitations or restrictions on the usage of the organisation’s resources for private or non-work related purposes; and/or (iii) introduction of a monitoring or access control system relating to workplace attendance and discipline. As a minimum, they must notify employees in a fair and accurate manner about the scope and operation of the relevant arrangement and about the employees’ and employer’s obligations thereunder.
A controller may be released in full or in part from the obligation to give data subjects a privacy notice where the controller lawfully processes personal data for journalistic purposes or for the purposes of academic, artistic or literary expression or where the processing is limited to photographing a data subject in the course of his/her public activity or at a public place for the purposes of creation of a photographic or audio-visual work.
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).
The PDPA further sets out minimum contents that the written request must have, including clear identification of the data subject, description of the request or inquiry to the controller, contact details and preferred method of communication for the data subject. The request must be dated and signed by the data subject. If submitted by a proxy, the relevant power of attorney or other authorization document must be enclosed to the request.
Under the PDPA a controller may refuse to respond to a data subject’s request for information access in full or in part where the controller lawfully processes personal data for journalistic purposes or for the purposes of academic, artistic or literary expression or where the processing is limited to photographing a data subject in the course of his/her public activity or at a public place for the purposes of creation of a photographic or audio-visual work.
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).
The PDPA sets out that the right may be exercised only in writing by a request with minimum contents, including clear identification of the data subject, description of the request or inquiry to the controller, contact details and preferred method of communication for the data subject. The request must be dated and signed by the data subject. If submitted by a proxy, the relevant power of attorney or other authorisation document must be enclosed in the request.
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).
The PDPA sets out that the right may be exercised only in writing by a request with minimum contents, including clear identification of the data subject, description of the request or inquiry to the controller, contact details and preferred method of communication for the data subject. The request must be dated and signed by the data subject. If submitted by a proxy, the relevant power of attorney or other authorisation document must be enclosed in the request.
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.
The PDPA sets out that the right may be exercised only in writing by a request with minimum contents, including clear identification of the data subject, description of the request or inquiry to the controller, contact details and preferred method of communication for the data subject. The request must be dated and signed by the data subject. If submitted by a proxy, the relevant power of attorney or other authorisation document must be enclosed in the request.
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).
These other rights are also not absolute and their enjoyment by data subjects may be subject to certain limitations under the PDPA. Like the rights specified above, data subjects can exercise these other rights only in writing with a dated and signed request to the controller.
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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.
The PDPA requires stronger appropriate technical and organisational measures where the processing is massive or includes systemic and massive video surveillance of public areas.
The PDPA also bans controllers or processors copying ID documents unless this is expressly allowed by a primary legal act or the controller offers e-services and uses the personal identification number of a data subject as the only means of identification of the data subject for remote access.
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.
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).
According to the PDPA the Commissions keeps a record of received data breach notices. The record is not public.
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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.
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).
The fines in the GDPR can also be imposed by the Commission for breaches of some of the provisions under the PDPA. For example, unlawful processing of child’s personal data in breach of the PDPA triggers the higher tier of fine under the GDPR. The introduction of a whistleblowing system without complying with the additional rules in the PDPA can be sanctioned by a fine under the lower tier of the GDPR. Other breaches of the PDPA are punishable by a default fine of up to BGN 5,000 (approx. EUR 2,500).
Applicable fines are doubled if the breach is repetitive, i.e., committed within one year from the date of a final and enforceable decision of the Commission by which the Commission imposed a sanction for the same type of breach.
Where the Commission imposes a fine, that decision is subject to administrative court review.
Imprisonment
The transfer or distribution of computer or system passwords which results in the illegitimate disclosure of personal data constitutes a crime under the Bulgarian Criminal Code. The penalty includes imprisonment for up to three years.
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).
The PDPA recognises a right of action for data subjects exercisable before the administrative court of competent jurisdiction. Before adjudicating on the damages claim, the court must first establish whether or not a data protection breach has been committed by the respondent controller or processor.
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.
The Commission exercises these other powers also by issuing decisions which may be appealed to the administrative court.
Practice
Fines:
In 2023, the Commission imposed a fine of BGN 25,000 (approx. €12,786) on a political party for the unlawful processing of personal data of data subjects supporting that party in relation to the national parliamentary elections. In the same year, the Commission imposed a fine of BGN 2,000 (approx. €1,022) on the Minister of Internal Affairs for retaining data beyond the period that was necessary for the purposes for which the data had been processed.
In 2022, Bulgarian Post EAD was fined with BGN 1,000,000 (approx. €500,000) for inappropriate technical and operational measures after allowing unauthorized access and disclosure of personal data. As a result of an inspection, the Commission established that Bulgarian Post EAD had failed to implement the required technical and operational measures resulting in an unauthorized access and disclosure of personal data (names, numbers of identity documents, postal addresses, telephone numbers, email, financial information, and sensitive data for health, including decisions regarding disability).
Other enforcement action:
According to the Commission’s bi-monthly bulletins, from 1 January 2023 until 31 December 2023, the Commission carried out a total of 237 on-site inspections, which is a decrease compared to the 324 on-site inspections conducted in 2022.
Most of the on-site inspections in 2022 were related to the processing of personal data collected through video surveillance systems. As a result of the inspections, the Commission ordered controllers to cease video surveillance of public spaces and to implement internal rules for control as well as to implement appropriate technical and organisation measures in order to guarantee the rights of data subjects.
Generally, where a violation of GDPR or PDPA is established, the Commission often imposes fines in the range from BGN 1,000 (approx. €500) to BGN 10,000 (approx. €5,000) or gives mandatory instructions to the controller in default to rectify or terminate the relevant data processing activities. In exercising its corrective powers under GDPR, the Commission rarely imposes both a fine and mandatory instructions at one time.
Regulatory actions:
In 2023, the Commission issued seven official opinions on data protection matters, including on matters related to video surveillance of employees, application on gambling legislation and processing in the exercise of official authority. In 2022 the Commission expressed 32 opinions on various data protection matters, both at the request of public authorities and on general inquiries of legal entities and individuals. These opinions of the Commission do not have the binding effect of a piece of legislation but are official guidelines and are highly indicative of the manner in which the Commission interprets GDPR and PDPA.
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ePrivacy | Marketing and cookies
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National Legislation
ePrivacy laws
Article 13 of the Privacy and Electronic Communications Directive has been implemented through the Electronic Communications Act (the “ECA”), promulgated in the State Gazette, Issue No. 41 of 22 May 2007, last amended and supplemented in the State Gazette, Issue No. 84 of 6 October 2023, in effect from 6 October 2023.
The rules of the E-Commerce Act, promulgated in the State Gazette, Issue No. 51 of 23 June 2006 (in force since 24 December 2006), last amended by the State Gazette, Issue No. 53 of 8 July 2022, are also of relevance.
Some of the amendments to the Privacy and Electronic Communications Directive, such as the obligation on providers of public electronic communication services to notify the Commission of personal data breaches, have been implemented by virtue of amendments to the ECA, adopted in December 2011. However, other amendments to the Privacy and Electronic Communications Directive have not been implemented into Bulgarian national law. For example, the E-Commerce Act has not been amended yet to implement the consent requirements for cookies.
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Cookies
Conditions for use of cookies
The E-Commerce Act allows the use of cookies provided that the user has been informed of the use of cookies and he/she has been given the opportunity to refuse the storage of or access to such cookies. Such restrictions are not applicable: (i) to any subsequent use of cookies in so far that the user has not explicitly objected to such use; and (ii) the cookies are used for the sole purpose of carrying out the transmission of a communication over an electronic communication network or for the provision of an information society service requested by the user.
However, the amendments to the Privacy and Electronic Communications Directive, requiring express consent for the storage of or access to cookies, have not been implemented yet.
Regulatory guidance on the use of cookies
There is no effective regulatory guidance on the use of cookies.
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Marketing by E-mail
Conditions for direct marketing by e-mail to individual subscribers
The ECA requires the consent of the individual subscriber as a condition for legally making direct marketing and advertising by e-mail with or without human intervention. Such consent is subject to withdrawal at any time.
Conditions for direct marketing by e-mail to corporate subscribers
Before the amendments to the ECA at the end of 2021, the legislation used the defined term “subscriber” to cover legal entities and natural persons, using or applying for usage of public electronic communications services and did not differentiate between individual and corporate subscribers with respect to the conditions for lawfully conducting direct marketing by e-mail. Thus, in relation to corporate subscribers direct marketing e-mails could be sent only subject to these subscribers’ consent. In 2021, a major change in the regulatory framework was adopted where subscribers in this context means only consumers – i.e., natural persons.
Pursuant to the E-Commerce Act, the Bulgarian Commission on Consumer Protection keeps a register of the e-mail addresses of legal entities which have expressly opposed receiving unsolicited commercial communication. Sending unsolicited commercial communication to those e-mail addresses, including for direct marketing purposes, is prohibited.
Exemptions and other issues
As an exemption to the rule of the ECA, no prior consent is required for cases where the similar products and services exemption applies.
The ECA prohibits direct marketing and advertising e-mails from being sent if: (i) the identity of the sender is disguised or concealed; (ii) the provided opt-out address is not valid; (iii) the message does not include the eCommerce information; and (iv) the message encourages recipients to visit websites that contravene the applicable information obligations in the E-commerce Act.
Pursuant to the E-commerce Act, in case of non-solicited communication, 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)
Pursuant to the ECA, direct marketing and advertising by telephone is subject to the same conditions and exemptions as e-mails. Thus, such telephone communications are allowed only subject to the consent of the subscribers. Additionally, a Bulgarian regulation on the rules of issuing of telephone directories expressly provides for the possibility for indexing those subscribers that have expressly consented to receiving unsolicited commercial communications.
Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)
Before the amendments to the ECA at the end of 2021, the ECA did not differentiate between natural persons and legal entities. Thus, such telephone calls were allowed only subject to the consent of the subscribers. As is the case with individual subscribers, telephone directory indexing is a way, provided for in the law, of expressing consent to receiving unsolicited commercial communications. In 2021, a major change in the regulatory framework was adopted where subscribers in this context means only consumers – i.e., natural persons.
Exemptions and other issues
Direct marketing and advertising by telephone is subject to the same exemptions and other issues as marketing or advertising by e-mail.
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