The amendments are not very substantial and the real estate mediation sector will not be one of the areas most impacted by the implementation of the RGPD - if the 1998 law is already fulfilled.
Whether for sheer ignorance, simple alarmism, lack of specialized monitoring or defensive posture in the face of the panic installed by those who saw in the General Regulation of Data Protection (RGPD) / GDPR (the acronym in English) a window of opportunity to sell services, the truth is that 25 May is on the doorstep and the regulation will apply from that date.
The law needs to be passed in Parliament
In Portugal, the difficulties are some and they add to the daily effort made to try to clarify, inform and ask for some reasoning and consideration in the treatment of the subject, remembering that we have specific legislation in this matter since 1998, transposition of a community directive of the year 1995.
The truth is that, due to the low values of the fines and the lack of an active enforcement check, the issue was forgotten and addressed lightly for years.
The draft law that will materialize some aspects of the RGPD in Portugal is pending, and has not been approved by the Assembly of the Republic (RA) at the time this article was written.
The fines in question
This bill, if adopted as we know it, establishes minimum amounts of fines, which may be applicable in case of non-compliance with the provisions of the RGPD and which may vary between 500 euros and 30,000 euros, although the maximum amounts are those provided for in the RGPD.
The proposed law also establishes a six-month period after 25 May granted to renew consents if previously obtained consents are not in compliance with the RGPD, including consent to the sending of communications for marketing purposes.
CNPD without means to supervise
The National Data Protection Commission (CNPD) issued a written opinion dated 2 May 2018 stating that the proposed law is subject to several illegalities and proposed structural changes to the document, with the analyze the impact of this opinion on the proposed law.
Therefore, at this date, we do not have information on the date foreseen to have an approved law that materializes the aspects left open by the RGPD and that will have to be fulfilled in Portugal.
In addition, the bill, which was intended to reorganize the economic and budgetary structure of the CNPD, making it possible to pay salaries and hire new resources (currently around 20 people) was rejected by the RA just over two weeks ago.
A few days ago, the CNPD President participated in a hearing in the RA and reiterated that the CNPD is overcoming financial difficulties, unable to pay salaries in June, foreseeing how difficult it is for the regulator to proceed adequately with the supervisory actions of the CNPD. implementation of the RGPD on 25 May 2018 or in the very near future (although submission of complaints by data holders or other interested parties must always be assessed by the CNPD).
The CNPD had already communicated that it would be its intention to carry out inspections in companies and in areas of activities especially sensitive, with a preventive approach, requesting adjustments within a certain period of time, in case of detected non-compliance, before the application of monetary penalties , mainly due to the maximum fines set, which several have considered as mismatched to the Portuguese business fabric.
Real estate brokerage without major impact
In this scenario, several sectors of activity are apprehensive about the implementation of RGPD. If, in some cases, the concern is that the law itself is unclear as to the treatments that it inevitably has to carry out in order to continue its activities, such as the treatment of special categories of For example, in the case of insurers, other sectors where, as long as the legislation prior to the RGPD on personal data protection was complied with, the amendments would not be so substantial. This is what happens with the real estate mediation industry.
- In very general terms, the mediation contract is the contract by which one party (in this case, the real estate agent) links with the other (for example, the owner of a property, principal, applicant) to, independently and for remuneration, prepare and establish a negotiation relationship between the latter and third parties (the powers interested in the acquisition, lease of the property), with a view to the eventual definitive conclusion of a legal transaction (the purchase or sale agreement). That is to say, there is an errand for this business, an intermediation, the attempt to favor the meeting of interested parties in the celebration of the business.
- The fact that mediation is done by the mediators in the name and on behalf of their clients could lead to their qualification as subcontractors, for the purposes of the applicable legislation on the protection of personal data, which would oblige the conclusion of a written contract that binds the mediators to the clients, supposedly responsible for the treatment. However, this should not be the qualification of the mediators. These are responsible for the processing of data that they make of their clients and of the potential interested in the business, having therefore to comply, under the general terms applicable to any sector of activity, the obligations that derive from the legislation on personal data.
- In conclusion, this will not be one of the areas most impacted by the implementation of the RGPD. Or it would not be if the obligations arising for the data controllers of the specific law in force since 1998 were already fulfilled.
Article written by Sónia Queiroz Vaz, Coordinator of Intelectual Property, Media and Information Technologies at Cuatrecasas in Portugal.
News: Idealista