Article 16 GDPR

← Article 16 - Right to rectification →
Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 16 - Right to rectification

The data subject shall have the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her. Taking into account the purposes of the processing, the data subject shall have the right to have incomplete personal data completed, including by means of providing a supplementary statement.

Relevant Recitals

Recital 39: Principles of Data Processing

Any processing of personal data should be lawful and fair. It should be transparent to natural persons that personal data concerning them are collected, used, consulted or otherwise processed and to what extent the personal data are or will be processed. The principle of transparency requires that any information and communication relating to the processing of those personal data be easily accessible and easy to understand, and that clear and plain language be used. That principle concerns, in particular, information to the data subjects on the identity of the controller and the purposes of the processing and further information to ensure fair and transparent processing in respect of the natural persons concerned and their right to obtain confirmation and communication of personal data concerning them which are being processed. Natural persons should be made aware of risks, rules, safeguards and rights in relation to the processing of personal data and how to exercise their rights in relation to such processing. In particular, the specific purposes for which personal data are processed should be explicit and legitimate and determined at the time of the collection of the personal data. The personal data should be adequate, relevant and limited to what is necessary for the purposes for which they are processed. This requires, in particular, ensuring that the period for which the personal data are stored is limited to a strict minimum. Personal data should be processed only if the purpose of the processing could not reasonably be fulfilled by other means. In order to ensure that the personal data are not kept longer than necessary, time limits should be established by the controller for erasure or for a periodic review. Every reasonable step should be taken to ensure that personal data which are inaccurate are rectified or deleted. Personal data should be processed in a manner that ensures appropriate security and confidentiality of the personal data, including for preventing unauthorised access to or use of personal data and the equipment used for the processing.

Recital 65: Right to Erasure and Rectification

A data subject should have the right to have personal data concerning him or her rectified and a ‘right to be forgotten’ where the retention of such data infringes this Regulation or Union or Member State law to which the controller is subject. In particular, a data subject should have the right to have his or her personal data erased and no longer processed where the personal data are no longer necessary in relation to the purposes for which they are collected or otherwise processed, where a data subject has withdrawn his or her consent or objects to the processing of personal data concerning him or her, or where the processing of his or her personal data does not otherwise comply with this Regulation. That right is relevant in particular where the data subject has given his or her consent as a child and is not fully aware of the risks involved by the processing, and later wants to remove such personal data, especially on the internet. The data subject should be able to exercise that right notwithstanding the fact that he or she is no longer a child. However, the further retention of the personal data should be lawful where it is necessary, for exercising the right of freedom of expression and information, for compliance with a legal obligation, for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims.

Commentary

Article 16 GDPR provides for the data subject's right to request the rectification of inaccurate personal data. Primarily, the rectification will be carried out by correcting inaccurate data. However, it can also be appropriate to rectify the information by completing incomplete information (e.g. by a supplementary statement to the existing information).

Similarly to the right of access under Article 15 GDPR, the right to rectification requires a request of the data subject and is in itself not an obligation the controller has to comply with on its own initiative. However, the data subject's right to rectification is closely connected to the principle of accuracy in Article 5(1)(d) GDPR which requires the controller to actively take every reasonable step to ensure that inaccurate data is erased or rectified. So, even in the absence of a request by the data subject, the controller has a duty to actively correct inaccurate personal data. However, Article 5(1)(d) GDPR gives the controller some leeway to continue the processing of inaccurate data - see more details under Article 5(1)(d) GDPR.

But, in many cases, the controller will not be aware that the data subject's personal data is (or became) inaccurate which makes the exercise of the right to rectification necessary. The right to rectification is often preceded by an access request under Article 15 GDPR since this is regularly the requirement to understand what data is actually processed by the controller and to assess the accurateness of that data.

It should be undisputed that the processing of incorrect or incomplete data can lead to possibly severe disadvantages for data subjects reducing the risk of exclusion, discrimination, or defamation. Since personal data is regularly used in order to make decisions affecting the data subject, the use of incorrect data can lead to all kind of negative consequences for the data subject. Therefore, data subjects have a significant interest that their data undergoing processing is accurate.

For example: The processing of inaccurate (e.g. old) income data could lead to the rejection of a required loan.

The use of inaccurate medical data could lead to a wrong medical treatment. The use of a wrong address could lead to the unwanted and unlawful disclosure of personal data to wrong recipients. Therefore, in many cases false information about a data subject can also lead to severe (emotional or even physical) distress.

The data subject's right to rectification provides, similarly to other rights under the GDPR, for means to exercise some level of control over the processing of personal data. This right is also explicitly named as a fundamental right in Article 8(2) CFR. It is therefore important that it is interpreted in the light of the Charter and the principle of proportionality in Article 52(1) CFR.

"That provision gives specific expression to the fundamental right enshrined in the second sentence of Article 8(2) of the Charter, according to which everyone has the right of access to data which have been collected concerning him or her, and the right to have them rectified."

CJEU - C-247/23 - Deldits, margin number 24.

Article 16 GDPR must be read in conjunction with Article 12 GDPR which provides for modalities and formal rules regarding the exercise of rights.

Right to Rectification of Inaccurate Data

In its first sentence, Article 16 GDPR provides for the right to rectify inaccurate personal data. This is followed in the provision's second sentence by the introduction of the right to have incomplete personal data completed. This right to complete personal data can be understood as a special case of the right to rectification (for more information on this special case see the point bellow).

Data subjects right

The data subject's right to rectification needs to be exercised by the data subject before the controller. In other words, in order to exercise this right, the data subject needs to request the controller to make the necessary changes (i.e. correct or complete the data). Regularly, the effective exercise of the right to rectification will require a prior access request by the data subject in order to find out about the specific personal data undergoing processing. But, the data subject is in no way required to make an access request prior to exercising their right to rectification. Similarly, there is no hierarchy between the data subject's rights in Chapter III of the GDPR. In some situations the data subject will therefore have the choice whether it wants to request the erasure under Article 17 GDPR or the rectification of the data under Article 16 GDPR.

To Obtain Rectification

The data subject making the rectification request can demand the the controller corrects the personal data. This means that the controller modifies the data in a way that the contextual meaning reflects the reality. This can be done by changing the data (e.g. amending a incorrect birth date to the correct one), by partial or complete deletion of information (a bank's customer's file shows an inaccurate payment default that is deleted after the data subject's request to rectify its customer file), or by completion (i.e. a data subject's employment file is supplemented since some working days were not entered into the system).

If the personal data just documents the state of the information at a previous time, and the data became inaccurate later, the controller can generally continue to process the data in the previous form as long as it is clear that the data only refers to the prior point in time.

The rectification request does not have to be justified or motivated and the data subject does not have to claim the existence of damage due to the inaccurate data. However, the data subject has to provide the controller with some substantiation for the claim of inaccuracy and how the data should be rectified.

"[T]he data subject, requesting the rectification of those data, may be required to provide relevant and sufficient evidence which, in the light of the circumstances of the particular case, can reasonably be required of that person in order to establish that those data are inaccurate [...]."

CJEU - C-247/23 - Deldits, margin number 41.

There is some debate on what the controller is obliged to do in case the correctness of the allegedly incorrect data cannot be determined (i.e. neither the data subject nor the controller can prove the (in)correctness). Keeping in mind the controller's obligation to demonstrate compliance with the principle of accuracy, the controller should correct or delete the disputed information.

Further, reference can be made to the modalities of data subject's requests under Article 12 GDPR.

If the controller declines a rectification request by the data, it must provide reasons for their decision (see Article 12(4) GDPR). The data subject has some options for recourse, such as filing a complaint with a supervisory authority or pursuing a judicial remedy. In case the data is rectified, it should be recalled that Article 19 GDPR requires controllers to notify each recipient of the affected personal data in order to enable the correction of the information also by the recipients.

Without Undue Delay

In accordance with Article 16 GDPR, the controller has to answer the rectification request "without undue delay". However, the deadline stipulated in Article 12(3) GDPR which requires an action by the controller "without undue delay and in any event within one month of receipt of the request", still applies. This deadline, under Article 12(3) GDPR, may be extended by two months where necessary, taking into account the complexity and number of the requests. Under Article 12(4) GDPR, any extension of the deadline must be communicated to the data subject alongside the reason behind it (see commentary on Article 12 GDPR).

The controller has to assess the validity of the rectification request and determine if it meets the eligibility requirements; this will need some time and maybe even require some clarifying questions to the data subject. To prevent the data from being processed (and possibly used incorrectly) during this period, the data subject has the right to restrict processing for a specific time frame to allow the controller to verify the data accuracy under Article 18(1)(a) GDPR. The only requirement in order for the data subject to claim this right is to dispute the accuracy of its data. Thus, in addition to a rectification request the data subject may also exercise its right to restrict the processing whilst the request is being carried out.

Of Inaccurate Data

The first sentence of Article 16 GDPR concerns the right to rectify inaccurate data. The GDPR does not provide a more detailed definition of what constitutes inaccuracy (see commentary on the discussion of what constitutes "inaccurate" data in Article 5(1)(d) GDPR).

"[...] Article 16 of the GDPR must be read in the light, first, of Article 5(1)(d) of the GDPR, which enshrines the principle of accuracy, under which processed data must be accurate and, where necessary, kept up to date, and that every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay. Second, that provision must also be read in the light of recital 59 of the GDPR, from which it is apparent that modalities should be provided for facilitating the exercise of the data subject’s rights under that regulation, including mechanisms to request and, if applicable, obtain, free of charge, in particular, rectification of personal data.

[T]he assessment of whether personal data is accurate and complete must be made in the light of the purpose for which those data were collected [...]."

CJEU - C-247/23 - Deldits, margin number 25 et seq. with further references.

In general, one can separate objective facts (e.g. a birth date), forecasts and predictions that are based on scientific methods (e.g. the creditworthiness) and mere value judgements (e.g. if a person is attractive). While mere value judgements cannot be "inaccurate", predictions, forecasts and objective facts can be inaccurate.

For example: A bank employee is meant to assess a credit application. If the system is based on the wrong name, address or birth date, it is based on inaccurate data, which can be corrected. If the system also uses a "credit score" that is solely based on the name, address or birth date, it likely yields statistically inaccurate results, which can be corrected. If the employee simply has a bad feeling in relation to the applicant's ability to pay back the loan, this is a pure value judgement and cannot be corrected.

However, it may be even feasible to rectify a value judgment itself, when the underlying facts and/or the decision-making process are objectively wrong. If, for example, an examiner assesses the quality of answers provided by a data subject, there might be situations where the examiner’s comments (in itself value judgments) with respect to those answers prove to be inaccurate, for example due to the fact that, by mistake, the examination scripts were mixed up in such a way that the answers of another candidate were ascribed to the data subject, or that some of the cover sheets containing the answers of the data subject are lost, so that those answers are incomplete, or that any comments made by an examiner do not accurately record the examiner’s evaluation of the answers of the data subject.

If personal data is only estimated, and as long as this fact is clearly noted, the estimation should also be considered a mere value judgement rather than a fact. E.g., a marketing agency estimates the household income of a data subject based on publicly available statistics; such an information would generally not be subject to the right to rectification.

For the purposes of Article 16 GDPR it should be pointed out that also objectively correct information can be inaccurate in the sense that they are incomplete and therefore lead to a wrong impression. In such a case, the data subject has the right to complete the inaccurate (i.e. incomplete) personal data.

It is debated, whether minor inaccuracies that do not have any relevance or impact on the data processing itself can be considered irrelevant for the purposes of this provision, with the consequence that there would be no right to rectify in connection to such minor inaccuracies. These could be grammatical or orthographic errors, such as a misspelled street name or a missing "h" in the name "Katharina," or an umlaut written out in the internal databases as long as - by the nature of the processing activity - such inaccuracies cannot possibly cause confusion or consequential errors. However, particular mistakes related to the spelling of a name can normally not be considered insignificant because they impact the primary identifier of the data subject in the realm of automated data processing, which can lead to confusion and subsequent errors.

It is irrelevant why the data is incorrect. The controller must not have had any bad faith to trigger Article 16 GDPR. Even if the data subject himself or herself originally provided incorrect information, Article 16 GDPR is applicable. If the data is inaccurate, it must be rectified. Similarly, the right to rectification is also applicable if personal data was originally correct but later became incorrect (e.g. because the data subject moved his address), unless, of course, the personal data is only meant to document the situation at a particular point in time.

Concerning Him or Her

A data subject can only exercise their right to rectification if the inaccurate personal data refers to them. If the personal data refers to someone else, they cannot request the rectification under Article 16 GDPR. However, considering the principle of accuracy in Article 5(1)(d) GDPR, the controller will generally be obliged to rectify inaccurate personal data whenever it is aware of it.

In order to have the right to rectification, it is sufficient if personal data refers also to the data subject as well as to other people.

Right to Completion of Incomplete Data

The right to completion of incomplete data (second sentence of Article 16 GDPR) can be considered a special case of the more general right to rectification provided in Article 16 GDPR.

This specific case of the right to rectification gives data subjects the right to have incomplete personal data completed. Whether data is incomplete within the meaning of Article 16 GDPR is a relative concept and depends on the purpose of processing ("taking into account the purposes of the processing"). Therefore, personal data can be considered incomplete if it is objectively correct but, in the context of the purposes of the processing, lead to an inaccurate representation of reality.

For example: In terms of creditworthiness, information about a refusal to pay is incomplete without the additional information that the reason for the refusal was a dispute over incorrect delivery of goods.

The means for completing incomplete data is normally the addition of more information. The additional information has to be accurate and, together with the already processed information, lead to conclusions that accurately reflect reality.

The GDPR explicitly states that the right to complete incomplete personal data can be fulfilled through a supplementary statement. This is meant to ensure the data subject is not confined to the limited data fields provided by the controller when exercising his rights under Article 16 GDPR. Supplementary explanations provided by the data subject must be taken into account if they are necessary to accurately and unambiguously contextualize the personal information. In this respect, the act of completing personal data can be executed by providing a supplementary statement.

Exemptions from the right to rectification

Since the modalities set out in Article 12 GDPR apply to Article 16, the controller can refuse to act on a request or charge a reasonable fee in case of manifestly unfounded or excessive requests. However, due to the nature of the right to rectification, this has practically a rather small relevance.

Further, Union or Member State law may restrict the right of access in accordance with Article 23 GDPR. Derogations regarding the processing of personal data for scientific and historical research, statistical or archiving purposes in the public interest can be based on Articles 89 GDPR, as well as for processing carried out for journalistic purposes and academic artistic or literary expression on Article 85 GDPR.

Decisions

→ You can find all related decisions in Category:Article 16 GDPR