PortugalGDPR Article 22, Automated Decisions in Portugal
Regulation (EU) 2016/679, Arts. 13(2)(f), 14(2)(g), 15(1)(h) and 22; Lei n.o 58/2019, de 8 de agosto
In force since .
A data subject rights rule binding public and private bodies.
- How the hook was established
- express
- What makes it apply
- Operator establishment, Market targeting, User location, Place of effect
- Audit expectation
- none
What it requires
- Give a person in Portugal a path to obtain human intervention, express their view, and contest a decision made solely by automated processing that produces a legal or similarly significant effect on them, under General Data Protection Regulation (GDPR) Article 22.NIST Privacy FrameworkCT.DM-P10
- Do not subject a person in Portugal to a decision based solely on automated processing, including profiling, that produces legal effects concerning them or similarly significantly affects them, unless the decision is necessary for entering into or performing a contract with them, is authorised by Union or Member State law that also lays down suitable measures to safeguard their rights, or rests on their explicit consent, under GDPR Article 22(1) and (2).NIST Privacy FrameworkCT.DM-P10
- Do not base a solely automated decision with legal or similarly significant effects on a person in Portugal on the special categories of personal data in GDPR Article 9(1), unless they gave explicit consent or the processing is necessary for reasons of substantial public interest on the basis of proportionate Union or Member State law, and suitable measures to safeguard their rights are in place, under GDPR Article 22(4).NIST Privacy FrameworkCT.PO-P1
- If you make solely automated decisions about a person in Portugal of the kind GDPR Article 22(1) and (4) describe, including profiling, tell them so and give them meaningful information about the logic involved and the significance and envisaged consequences for them: when you collect their data, within the Article 14(3) period where you obtained it from someone else, and in answering their access request, under GDPR Articles 13(2)(f), 14(2)(g) and 15(1)(h).NIST Privacy FrameworkCM.AW-P1
These lines are LexLint's reading of the law's text. Also read by: European Data Protection Board (endorsed Article 29 Working Party Guidelines WP251rev.01) (guidance, recorded ); Case C-634/21 SCHUFA Holding (Scoring), judgment of (First Chamber) (recorded ).
In the frameworks
- NIST Privacy Framework
- CT.PO-P1Policies, processes, and procedures for authorizing data processing (e.g., organizational decisions, individual consent), revoking authorizations, and maintaining authorizations are established and in place.
- CT.DM-P10Stakeholder privacy preferences are included in algorithmic design objectives and outputs are evaluated against these preferences.
- CM.AW-P1Mechanisms (e.g., notices, internal or public reports) for communicating data processing purposes, practices, associated privacy risks, and options for enabling individuals’ data processing preferences and requests are established and in place.
Our reading of where this law's duties sit in each framework, and in the NIST Privacy Framework, line by line beside each duty above. It never says that running a control meets the law. How we read a framework against the law
Who enforces it
Settledness
- As of
- Case link
- https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62021CJ0634
- Guidance link
- https://ec.europa.eu/newsroom/article29/redirection/document/49826
- Case citation
- Case C-634/21 SCHUFA Holding (Scoring), judgment of (First Chamber)
- Guidance body
- European Data Protection Board (endorsed Article 29 Working Party Guidelines WP251rev.01)
- Open questions
- When does a recipient 'draw strongly' on a probability value, so that the supplier's automated score is itself a decision under Article 22(1) of the GDPR, where a person at the recipient formally takes the final decision?
What it makes you log
Logging duty
Article 22(3) requires safeguards (human intervention, the chance to state a view and to contest the decision) and states no duty to create, keep or produce a log or record of the decision. Lei 58/2019 adds no rule of its own on automated decisions.
- Kind
- None
- As of
What this law does
General Data Protection Regulation (GDPR) Article 22 gives a person in Portugal the right not to be subject to a decision based solely on automated processing, including profiling, that produces legal effects or similarly significantly affects them, unless the decision is necessary for a contract with them, authorised by a law that safeguards their rights, or based on their explicit consent.
Where it rests on a contract or consent, the controller must at least let the person obtain human intervention, express their point of view and contest the decision.
Under Article 22(4), such a decision may not rest on the special categories of personal data in Article 9(1) unless the person gave explicit consent or the processing is necessary for reasons of substantial public interest on the basis of proportionate Union or Member State law, with suitable safeguards in place.
Articles 13(2)(f), 14(2)(g) and 15(1)(h) require the controller to tell the person that such decision-making takes place, with meaningful information about the logic involved and its significance and envisaged consequences for them, at collection, within the Article 14(3) period where the data came from another source, and on an access request.
Lei n.o 58/2019 adds no rule of its own on automated decisions.
When LexLint raises it
When your app profile says your app makes high-risk automated decisions.
Back to the example · Lint your app
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