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 the data subjects the right to rectify and complete their personal data that are being processed by a controller. This right is another expression of the control that the GDPR gives data subjects over their personal data, as remarked by Recital 7.

The right to rectification, along with the rights to erasure, restriction, and object, can be considered a second stage of the exercise of rights, in which control of personal data is effectively exerted. The first stage would be the right to information and access, that would allow the data subject to have the necessary information about their personal data and how they are being processed in order to exercise the control over them. Article 16 plays a very important role in the accuracy principle, since it allows data subjects to ensure that their personal data that are being processed by a controller are accurate. Accuracy is reflected in two ways: firstly, accuracy with regards to the exactitude of the data, meaning that the data should not be false, imprecise or incorrect. Secondly, with regards to the completion of the personal data, the data shall be complete, since incomplete data may be misleading in certain contexts or for certain purposes.

Exercise of the right

Pursuant to Article 12(2), the controller shall facilitate the data subject the exercise of the right. This may be done, partially, by providing the possibility of making a rectification request via electronic means, as recommended by Article 15(3) and Recital 64 when dealing with access requests.

In accordance with Article 12(3) GDPR, the controller has to answer the rectification request ‘without undue delay and in any event within one month of receipt of the request’. This deadline may be extended two months where necessary, taking into account the complexity and number of the requests. Any extension of the deadline must be communicated to the data subject, along for the reasons for it, according to Paragraph 4 of the same Article.

The right to rectification is, as other rights, not subject to a justification. The data subject does not have to have a reason for exercising it. It is neither, for example, subject to the existence of damage, as stated by the CJEU.

In principle, only personal data which accuracy can be contested may be rectified. Therefore, personal data that is in some way subjective might not be rectifiable. This is however debatable. For example, the Litigation Chamber of the Belgian DPA has solved a situation in which they were not in a position to contest the accuracy of the data, since the contested data was a subjective opinion on the data subject, by allowing the data subject to add a statement to the file to the contrary of it, similarly to the right to have incomplete personal data completed by means of providing a supplementary statement.

Additionally, and in accordance with the District Court of Midden-Nederland, the rectification has to be complete. It is not sufficient to issue a report stating the inaccuracies and the corrected data, but the data themselves must be directly corrected in the system in which they are stored, in order to ensure full accuracy.

The right to rectification cannot be used as a means to correct data subjects’ exams answers, since according to the CJEU the assessment of whether personal data is accurate and complete must be made in the light of the purpose for which that data was collected. In such a case, the purpose is to be able to evaluate the level of knowledge and competence of that candidate at the time of the examination. That level is revealed precisely by any errors in those answers. Consequently, such errors do not represent inaccuracy.

This right could be used, however, to examine whether scripts were mixed up in such a way that the answers of another candidate were ascribed to the candidate concerned, or whether some of the cover sheets containing the answers of that candidate are lost.

The fact that the accuracy of the data is related to the purposes for which it is processed is also related to the right to complete personal data, since the purpose of the processing may entail that data that are not factually incorrect may be misleading because of the lack of additional data. This may also mean, however, that the right to rectification may not always oblige a controller to rectify personal data when the inaccuracy is not relevant for the purposes of the processing. For example, the Norwegian Privacy Appeals Board has decided in a case that a controller was not obliged to rectify a single letter of a name since it does not entail danger of mis-identification and is related to differences between countries in spelling names, especially given the burden that it will impose on the controller to modify it in all their records.

The right to rectification is also applicable to data collected before the entry into force of the GDPR, since the storage of such data means that they are still being processed.

Relation to Article 18

Article 18 contains a provision that allows the data processing to be restricted when the accuracy of the data is contested. Therefore, along with a rectification request, the data subject may exercise also their right to restrict the processing during the time while the rectification request is being carried out. For more information on Article 18, see discussion on Article 18 GDPR.

Relation to Article 19

Article 19 contains an obligation for the controller to notify the data subject that the rectification of their data has been carried out, in order to ensure that the data subject is informed about the correct exercise of their right to rectification. For more information on Article 19, see discussion on Article 19 GDPR.

Decisions

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