Article 11 GDPR

← Article 11: Processing which does not require identification →
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 11: Processing which does not require identification

1. If the purposes for which a controller processes personal data do not or do no longer require the identification of a data subject by the controller, the controller shall not be obliged to maintain, acquire or process additional information in order to identify the data subject for the sole purpose of complying with this Regulation.

2. Where, in cases referred to in paragraph 1 of this Article, the controller is able to demonstrate that it is not in a position to identify the data subject, the controller shall inform the data subject accordingly, if possible. In such cases, Articles 15 to 20 shall not apply except where the data subject, for the purpose of exercising his or her rights under those articles, provides additional information enabling his or her identification.

Relevant Recitals

Recital 26: Applicable to Pseudonymous Data, Not Applicable to Anonymous Data

The principles of data protection should apply to any information concerning an identified or identifiable natural person. Personal data which have undergone pseudonymisation, which could be attributed to a natural person by the use of additional information should be considered to be information on an identifiable natural person. To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. The principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable. This Regulation does not therefore concern the processing of such anonymous information, including for statistical or research purposes.

Recital 57: Additional Information for Identification

If the personal data processed by a controller do not permit the controller to identify a natural person, the data controller should not be obliged to acquire additional information in order to identify the data subject for the sole purpose of complying with any provision of this Regulation. However, the controller should not refuse to take additional information provided by the data subject in order to support the exercise of his or her rights. Identification should include the digital identification of a data subject, for example through authentication mechanism such as the same credentials, used by the data subject to log-in to the on-line service offered by the data controller.

Recital 64: Identity Verification

The controller should use all reasonable measures to verify the identity of a data subject who requests access, in particular in the context of online services and online identifiers. A controller should not retain personal data for the sole purpose of being able to react to potential requests.

Commentary

The data minimisation principle in Article 5(1)(c) GDPR limits controllers in their processing operations, as it specifically requires them to only process data which is necessary for the fulfilment of specific purposes. During the legislative process there were worries, that the GDPR could be interpreted to require processing more personal data, just to comply with certain requirements and rights of the data subjects - which would be counterproductive. Article 11 GDPR is meant to address this matter.

Under Article 11(1) GDPR, when a processing operation does not or no longer requires the identification of the data subject, then the controller should act accordingly, deleting or otherwise hiding the identifying reference to the data subject. When this happens, the controller is not obliged to process additional information about the data subject for the sole purpose of GDPR compliance.

Article 11(2) GDPR provides for an important exception to the above-mentioned rule. If a data subject wants to exercise their GDPR rights and to that extent provides further information allowing their (re)identification, the controller shall consider that information and, if possible, address the request.

Article 11 GDPR only address the use of personal data. There are many other duties under the GDPR which regularly require the keeping of records, proof or evidence. They are not affected by Article 11 GDPR.

(1) If the data subject is not identified, the GDPR applies in part

Article 11 GDPR applies when “personal data do not or do no longer require the identification of a data subject”. One could think that this refers to an anonymisation scenario, but this conclusion would make little sense. First, the GDPR does not apply to anonymous data. Second, under Article 11(2) GDPR, it would be impossible to inform a data subject who is not identifiable.

Under Article 4(1) GDPR, personal data means any information relating to an “identified” or “identifiable” natural person. Looking attentively at the wording of Article 11(1) GDPR, it is clear that the provision only covers situations in which the data subject is not or no longer “identified”, but clearly excludes cases where they are still “identifiable”. In other words, the provision applies in case of pseudonymisation which, according to Recital 26, refers to information about an identifiable person. In the case of pseudonymisation, regardless whether it was implemented from the beginning (“does not require”) or at a later stage (“does no longer require”) of the processing operation, the GDPR grants the controller a privilege which reflects the favour towards data minimisation, storage limitation and data security. In particular, the controller shall not be obliged to retain, obtain or process further information about the individual if such information is needed to identify them and comply with one or more part of the GDPR.

This privilege is not absolute but refers exclusively to those parts of the GDPR that require the identification of the data subject. Some examples are possible. Take the case of the Google Street View. This process undoubtedly involves the collection of some personal data of inhabitants and their homes. However, it is argued, Google would probably not be obliged to collect the contact details of individual inhabitants in order to inform them of the processing under Articles 13 or 14 GDPR. This can be drawn from the final sentence of Article 11(1) GDPR.

It must be assessed with the utmost attention whether GDPR provisions require the identification of the data subject,  and under no circumstances should Article 11(1) GDPR be regarded as a carte blanche for the transgression of data protection regulations. The data minimisation principle limits controllers in their processing operations, as it specifically requires them to only process data which is necessary for the fulfilment of specific purposes. Under Article 11(1) GDPR, when a processing operation does not or no longer requires the identification of the data subject, then the controller should act accordingly, deleting or otherwise hiding the identifying reference to the data subject. When this happens, the controller is not obliged to obtain additional information about the data subject for the sole purpose of GDPR compliance. Article 11(2) GDPR provides for an important exception to the above-mentioned rule. If a data subject wants to exercise their GDPR rights and to that extent provides further information allowing their (re)identification, the controller shall consider that information and, if possible, address the request. In particular, all other GDPR requirements that do not require the data subject’s identification remain applicable, including, but not limited to, security of processing (Article 32(1) GDPR) and the general principles of processing set out in Article 5 GDPR.

(2) If the data subject exercises their rights, the controller must try the identification

In confirming the above interpretation, Paragraph 2 sets out a specific framework for the case that a data subject exercises their rights under Articles 15 to 20 GDPR. By definition, this situation requires the identification of the data subject, as a right only exists insofar as it is given to a specific person and they exercise it. In such circumstances, if, after pseudonymisation ("In cases referred to in paragraph 1 of this Article"), the controller receives a request to exercise the data subject’s right, but for technical reasons is unable to identify them, the controller must (i) prove this impossibility and (ii) inform the data subject of the reasons which render the request impossible. This will suffice to stay the claim ("In such cases, Articles 15 to 20 shall not apply") unless the data subject provides additional information allowing their identification. If their identification is possible following the receipt of the additional information, the exception will not apply and the controller shall comply with the data subject’s request.

Burden of Proof

The controller must be able to demonstrate that identifying the data subject is impossible. This demonstration should provide a transparent explanation of the reasons why the controller is unable to do so. Generic or circular arguments (e.g. "Our systems are unable to identify your data") do not meet the requirement of a proper demonstration under the fairness and transparency principle (Article 5(1)(a) GDPR).

Obligation to Inform

Article 11(2) GDPR provides for a peculiar informative obligation ("Where [...] the controller is able to demonstrate that it is not in a position to identify the data subject, the controller shall inform the data subject accordingly, if possible"). Such information is clearly different from that received under Articles 13 or 14 GDPR, and is particularly important as it allows the data subject to evaluate the allegedly non-identifying processing, as well as provide additional information to enable their identification. The controller should therefore provide tailored information and explain why identification is not possible. Furthermore, to comply with the principle of fairness the controller should indicate in advance which data the data subject should provide for their (re)identification.

Decisions

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