question, as well as the professional rules and security measures which are complied
with in that country”, and a request to the National Authority, that, through a case by
case analysis, will decide if the State ensures an adequate level of protection.
But some exceptions are applicable to cases where a State doesn’t have an
adequate level of protection, which comprises the following situations: (a) If the
data subject has given his “unequivocal consent to the proposed transfer” or,
alternatively, if it is necessary for “the performance of a contract between the data
subject and the controller of the processing of the data or the pre-contractual
measures taken in response to the request of the subject”; for “the execution/
performance or the signing of a concluded or to be concluded contract in the interest
of the data’s subject between the controller and a third party”; or if it is “legally
required on the grounds of important public interest, or for the establishment,
exercise of defence of legal claims; for the protection of vital interests of the data’s
subject; or, made from a public register, within the contexts of the laws or regulations, is intended for information of the public and which is open to consultation
either by the general public or by any person who can demonstrate legitimate interest
provided the conditions laid down in law for consultation are fulfilled in this case”;
(b) In other situations, if the processing controller, “provides adequate guarantees
with respect to the protection of the privacy and fundamental rights and freedoms of
individuals and with respect to their exercise, particularly by means of appropriate
contractual clauses”
148 ; on the other hand, (c) transfer of personal data protection for
purposes of national security (“State, security, defence; public safety”) and international criminal cooperation are regulated by international conventions to which Cape
Verde is party or by special legal provisions of other acts, in this case being specially
important article 5 of the Republic’s Information System Act—though dependent of
a Regulation that was not approved yet—and of the Law on Judicial Cooperation in
Criminal Matters.
4.4 The Law Applicable to Liability for Damages Caused by
the Unlawful Processing of Personal Data
With regard to the law applicable to liability for damages caused by the unlawful
processing of personal data, there is no special rule in force. Thus, the main
instrument is still the Civil Code, despite the existence of a law that covers certain
aspects of electronic contracts, with all its limitations with regard to new techniques
of commerce, specifically trans-boundary e-commerce and technologically related
developments.
Cape Verdean Private International Law is mainly inserted in the Civil Code
(articles 25–63), which is the same as the Portuguese Civil Code of 1966, so the
148 Traça and Embry (2011), pp. 253–254.
108
J. Pina-Delgado
with in that country”, and a request to the National Authority, that, through a case by
case analysis, will decide if the State ensures an adequate level of protection.
But some exceptions are applicable to cases where a State doesn’t have an
adequate level of protection, which comprises the following situations: (a) If the
data subject has given his “unequivocal consent to the proposed transfer” or,
alternatively, if it is necessary for “the performance of a contract between the data
subject and the controller of the processing of the data or the pre-contractual
measures taken in response to the request of the subject”; for “the execution/
performance or the signing of a concluded or to be concluded contract in the interest
of the data’s subject between the controller and a third party”; or if it is “legally
required on the grounds of important public interest, or for the establishment,
exercise of defence of legal claims; for the protection of vital interests of the data’s
subject; or, made from a public register, within the contexts of the laws or regulations, is intended for information of the public and which is open to consultation
either by the general public or by any person who can demonstrate legitimate interest
provided the conditions laid down in law for consultation are fulfilled in this case”;
(b) In other situations, if the processing controller, “provides adequate guarantees
with respect to the protection of the privacy and fundamental rights and freedoms of
individuals and with respect to their exercise, particularly by means of appropriate
contractual clauses”
148 ; on the other hand, (c) transfer of personal data protection for
purposes of national security (“State, security, defence; public safety”) and international criminal cooperation are regulated by international conventions to which Cape
Verde is party or by special legal provisions of other acts, in this case being specially
important article 5 of the Republic’s Information System Act—though dependent of
a Regulation that was not approved yet—and of the Law on Judicial Cooperation in
Criminal Matters.
4.4 The Law Applicable to Liability for Damages Caused by
the Unlawful Processing of Personal Data
With regard to the law applicable to liability for damages caused by the unlawful
processing of personal data, there is no special rule in force. Thus, the main
instrument is still the Civil Code, despite the existence of a law that covers certain
aspects of electronic contracts, with all its limitations with regard to new techniques
of commerce, specifically trans-boundary e-commerce and technologically related
developments.
Cape Verdean Private International Law is mainly inserted in the Civil Code
(articles 25–63), which is the same as the Portuguese Civil Code of 1966, so the
148 Traça and Embry (2011), pp. 253–254.
108
J. Pina-Delgado