Position No. 1/2005
Insurance intermediaries working on a contractual basis for insurance undertakings are relatively often asked by these undertakings to meet the notification obligation laid down in Article 16 of the Act No. 101/2000 Coll., on the Protection of Personal Data and on Amendments to Some Acts (hereinafter referred to as “the Personal Data Protection Act”) and to get registered with the Office for Personal Data Protection in the register of personal data processings kept under Article 35 of the mentioned Act.
The wording of Article 16 of the Personal Data Protection Act implies that the notification obligation applies only to data controllers. In this instance, it is the insurance undertaking who is the controller. But an insurance undertaking, provided it complies with other obligations laid down by the Personal Data Protection Act, fulfils the condition for the exemption from the notification obligation pursuant Article 18(1)(b) of this Act.
As for the insurance intermediaries it is necessary to take into consideration the Act No. 38/2004 Coll., on Insurance Intermediaries and on Independent Loss Adjusters and on Amendment to the Trades Licensing Act (Act on Insurance Intermediaries and Loss Adjusters), namely the definitions relating to the pursuit of activities and the position of a tied insurance intermediary, subordinated insurance intermediary, insurance agent, insurance broker and independent loss adjuster entered in the register kept by the Ministry of Finance. It ensues from this Act that everyone, with the exception of brokers and subordinated insurance intermediaries, is bound by a contract with the insurance company and is acting on its behalf. If such a contract meets the requirements of Article 6 of the Personal Data Protection Act, they are then – from the view of this Act – in the position of a processor who is excluded from the notification obligation. An insurance broker is bound by the contract closed with his client and so he is in the position of a controller. But, because performing a processing pursuant a special act, he also does not need – following the cited exemption – to fulfil the notification obligation. A subordinated insurance intermediary can have a contract either with a broker, being the processor in this case, or with an agent and here only one interpretation is apparently possible, that the subordinated insurance intermediary is the “other person” processing personal data on the basis of a contract with the controller or processor in the meaning of Articles 14 and 15 of the Personal Data Protection Act.
The pursuit of activities of the insurance intermediaries and agents is regulated by a special act. Even if, on the basis of the concluded contract, not being a processor but a controller they would meet, analogically to the above mentioned cases, the exemption from the notification obligation pursuant Article 18(1)(b) of the Personal Data Protection Act.
As follows from the aforementioned, the activities of insurance intermediaries in relation to the new legal provisions implemented by the Act No. 38/2004 Coll., on Insurance Intermediaries and on Independent Loss Adjusters and on Amendment to the Trades Licensing Act do not underlie to the obligation to notify and be registered with the Office for Personal Data Protection pursuant Article 16 of the Personal Data Protection Act.
Notice: More detailed information available at the Office´s website www.uoou.cz under section “Registration”.
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