Article 15 GDPR

← Article 15 - Right of access by the data subject →
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 15 - Right of access by the data subject

1. The data subject shall have the right to obtain from the controller confirmation as to whether or not personal data concerning him or her are being processed, and, where that is the case, access to the personal data and the following information:

(a) the purposes of the processing;

(b) the categories of personal data concerned;

(c) the recipients or categories of recipient to whom the personal data have been or will be disclosed, in particular recipients in third countries or international organisations;

(d) where possible, the envisaged period for which the personal data will be stored, or, if not possible, the criteria used to determine that period;

(e) the existence of the right to request from the controller rectification or erasure of personal data or restriction of processing of personal data concerning the data subject or to object to such processing;

(f) the right to lodge a complaint with a supervisory authority;

(g) where the personal data are not collected from the data subject, any available information as to their source

(h) the existence of automated decision-making, including profiling, referred to in Article 22(1) and (4) and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject.

2. Where personal data are transferred to a third country or to an international organisation, the data subject shall have the right to be informed of the appropriate safeguards pursuant to Article 46 relating to the transfer.

3. The controller shall provide a copy of the personal data undergoing processing. For any further copies requested by the data subject, the controller may charge a reasonable fee based on administrative costs. Where the data subject makes the request by electronic means, and unless otherwise requested by the data subject, the information shall be provided in a commonly used electronic form.

4. The right to obtain a copy referred to in paragraph 3 shall not adversely affect the rights and freedoms of others.

Relevant Recitals

Recital 58: Modalities for Transparent Information Provision

The principle of transparency requires that any information addressed to the public or to the data subject be concise, easily accessible and easy to understand, and that clear and plain language and, additionally, where appropriate, visualisation be used. Such information could be provided in electronic form, for example, when addressed to the public, through a website. This is of particular relevance in situations where the proliferation of actors and the technological complexity of practice make it difficult for the data subject to know and understand whether, by whom and for what purpose personal data relating to him or her are being collected, such as in the case of online advertising. Given that children merit specific protection, any information and communication, where processing is addressed to a child, should be in such a clear and plain language that the child can easily understand.

Recital 59: Modalities for Facilitating Data Subject Rights

Modalities should be provided for facilitating the exercise of the data subject's rights under this Regulation, including mechanisms to request and, if applicable, obtain, free of charge, in particular, access to and rectification or erasure of personal data and the exercise of the right to object. The controller should also provide means for requests to be made electronically, especially where personal data are processed by electronic means. The controller should be obliged to respond to requests from the data subject without undue delay and at the latest within one month and to give reasons where the controller does not intend to comply with any such requests.

Recital 63: Modalities and Scope of Right of Access

A data subject should have the right of access to personal data which have been collected concerning him or her, and to exercise that right easily and at reasonable intervals, in order to be aware of, and verify, the lawfulness of the processing. This includes the right for data subjects to have access to data concerning their health, for example the data in their medical records containing information such as diagnoses, examination results, assessments by treating physicians and any treatment or interventions provided. Every data subject should therefore have the right to know and obtain communication in particular with regard to the purposes for which the personal data are processed, where possible the period for which the personal data are processed, the recipients of the personal data, the logic involved in any automatic personal data processing and, at least when based on profiling, the consequences of such processing. Where possible, the controller should be able to provide remote access to a secure system which would provide the data subject with direct access to his or her personal data. That right should not adversely affect the rights or freedoms of others, including trade secrets or intellectual property and in particular the copyright protecting the software. However, the result of those considerations should not be a refusal to provide all information to the data subject. Where the controller processes a large quantity of information concerning the data subject, the controller should be able to request that, before the information is delivered, the data subject specify the information or processing activities to which the request relates.

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 possibility to receive consistent, reliable, complete and updated information regarding processing activities allows individuals to obtain and/or increase their awareness concerning any relevant processing operation, exercising practical control over their data and checking accuracy and lawfulness of data processing. Such information – a prerequisite to possibly exercise data subjects GDPR rights (rectification, erasure, restriction, etc) – is a key principle of the entire data protection framework and must be provided under Article 15 GDPR. More precisely, the controller is obliged to provide transparent, intelligible, and easily accessible information about whether or not a data processing is taking place, what the actual processing operations are as well as full access to the data undergoing processing.

(1) The Right of Access

Under Article 15(1) GDPR, the right of access includes three components: (i) the right to obtain from the controller confirmation as to whether data concerning him or her are being processed, (ii) the right to obtain access to the personal data undergoing processing and (iii) the right to obtain information on certain aspects of the processing as outlined in the list under Article 15(1)(a-h).

The request by which the data subject or another duly authorised person exercises the right of access does not require any formality. The data subject may define the scope of their request and does not need to outline the reasons behind it, nor has the controller any power in assessing such reasons. If the request is unclear and a large amount of data is being processed, the controller may, however, ask the data subject to specify what processing activities the request relates to (Recital 63 GDPR). Nonetheless, if the data subject requests access to all their personal data, the controller will have to comply with the request. The above is confirmed by the EDPB so differing interpretations do no seem correct.

Under Article 12(6) GDPR, the controller shall also take any necessary steps to verify the identity of the data subject, since the disclosure of personal data to a different person could qualify as a data breach. However, the controller shall not use this requirement to hinder the exercise of the right. For example, when the data subject exercises the right from the same email as the email from which they provided their personal data on the first place, there shall be no doubt as for their identity. Requiring disproportionate information to authenticate the data subject identity violates the data minimization principle, since in many cases the data requested for it, such as a copy of an ID, would not be necessary.

Hindering the exercise of the right to access amounts to a violation of the GDPR, regardless of the way in which it is carried out, e.g. by charging a fee for the access or the copy of the data or by obliging the data subject to exercise the right via a complicated procedure or means. The right shall be free to exercise, and shall not entail any unnecessary burden.

Right to Receive Confirmation About the Processing

The first step in exercising the right to access consists of the right to receive a confirmation about whether one’s own personal data are being processed. The search for personal data should be performed on all the paper and computer records where personal data are being processed, including the controller's back-up systems. The controller should respond even if no personal data is processed, in the form of a negative confirmation.

Right to Receive Information About the Processing

Under Article 15(1)(a) to (h) GDPR the controller is obliged to provide the data subject certain additional information about the processing. This information is different from that provided through the privacy policies under Articles 13 and 14 GDPR. It must be precise and tailored to the specific position of the data subject.

Under Article 15(1)(a), the controller must communicate the individual data processing purposes pursued for a given user. This provision does not contain an obligation to mention the legal basis tied to each single purpose. However, such information should nevertheless be included, otherwise it would be impossible for the data subject to verify the lawfulness of a certain processing operation.

Article 15(1)(b) requires controllers to disclose the categories of personal data involved in the processing. In accordance with the data minimisation and transparency principles, such categories should be specifically listed and linked to the specific purpose.

Example: the user has the right to know which categories of data are processed on his or her behalf. For example, an e-commerce website should not process data relating to the political preferences of the data subject.

Article 15(1)(c) GDPR requires the controller to disclose information about recipients or categories of recipients to whom the personal data have been or will be disclosed. The wording of the provision has fed a debate on whether the controller shall provide the name of each recipient or rather only the categories of recipients. Controllers tend to omit the specific indication of recipients, preferring to opt for the more generic option, in which they only describe general categories of recipients that may have already be mentioned in the privacy policies.

This line of action, however, does not seem correct. First, it contradicts the essential purpose of the right of access because it does not allow the data subject to "be aware of, and verify, the lawfulness of the processing" (Recital 63). Second, it is at odd with the clear wording of Article 19 GDPR, which requires the controller to “inform the data subject about [the specific] recipients if the data subject requests it”. Whilst the EDPB seems to share these arguments, at the moment, the question remains open and a preliminary ruling is pending before the CJEU on whether Article 15(1)(c) GDPR requires the controller to name concrete recipients of the data (rather than just categories of recipients).

Example: in its privacy policy a data controller affirms that the user's personal data can be passed on to “commercial partners and travel agencies”. This information, which is in principle acceptable for a privacy policy, is greatly insufficient in the context of an access request. For instance, it does not say anything about the geographical location of such partners, making it impossible to verify the lawfulness of the transfer under Article 44 GDPR.

Under Article 15(1)(d) the controller must provide information relating to the time of processing. In such circumstances, the information must enable the user to understand how long a particular piece of information may be held by the controller.

The information required under Article 15(1)(e) GDPR (existence of the right to rectification, erasure or restriction) must not be a mere stylistic exercise. Rather, it must be tailored to the specific position of the data subject and refer to the ongoing processing operations. Conversely, information on the possibility to lodge a complaint (Article 15(1)(f) GDPR) does not require any kind of personalisation.

A high degree of specificity is required in relation to the sources from which the controller has obtained the data. Under Article 15(1)(g) GDPR, "where the personal data are not collected from the data subject", controllers have to provide " any available information as to their source”.

Article 15(1)(h) provides that every data subject should have the right to be informed, in a meaningful way, inter alia, about the existence and underlying logic of automated decision-making including profiling concerning the data subject and about the significance and the envisaged consequences that such processing could have. With respect to automated decision making, the Austrian DPA has held that the right to access under Article 15(1)(h) GDPR applies to all kinds of profiling rather than only to automated decision making under Article 22(1) and (4) GDPR. Additionally, in the same decision the DPA stated that the protection of a trade secret should form an exception to the complainants' right to obtaining such information. For further information, please refer to Article 22 GDPR. According to the EDPB, "If possible, information under Art. 15(1)(h) has to be more specific in relation to the reasoning that lead to specific decisions concerning the data subject who asked for access".

(2) Right to Receive Information About the Appropriate Safeguards

The additional information also includes, as provided by Article 15(2) GDPR, information about the appropriate safeguards pursuant to international transfers of data from Article 46 GDPR, where personal data are transferred to a third country or to an international organisation. The EDPB has remarked in this regard the importance of transparency and information provided to the data subjects.

(3) Right to Receive a Copy of the Personal Data

Article 15(3) GDPR operationalises the second component of the right of access, which is the right to access the data by obtaining a copy of all personal data undergoing processing.

The scope of the provision - and thus the width of the copy - coincides with the definition of personal data provided in Article 4(1) GDPR. According to the recent position paper of the EDPB, this includes, among the others, special categories of personal data as per Art. 9 GDPR; Personal data relating to criminal convictions and offences as per Art. 10 GDPR; Data knowingly and actively provided by the data subject (e.g. account data submitted via forms, answers to a questionnaire); Observed data or raw data provided by the data subject by virtue of the use of the service or the device (data processed by connected objects, transaction history, activity logs such as access logs, history of website usage, search activities, location data, clicking activity, unique aspects of a person’s behaviour such as handwriting, keystrokes, particular way of walking or speaking); Data derived from other data, rather than directly provided by the data subject (e.g. credit ratio, classification based on common attributes of data subjects; country of residence derived from postcode); Data inferred from other data, rather than directly provided by the data subject (e.g. to assign a credit score or comply with anti-money laundering rules, algorithmic results, results of a health assessment or a personalization or recommendation process); Pseudonymised data as opposed to anonymized data.

This authoritative interpretation should help to calm the debate that has emerged, mainly in case law, on the subject of a what is to be considered personal data and, therefore, is included in the copy under Article 15(3). In order to be included in the copy, the data must be undergoing processing. Accordingly, it is not possible either to request personal data that does not already exist and that must be expressly generated, such as a detailed medical report.

The second sentence of Article 15(3) regulates cases where the data subject requests a new copy of his personal data. In such circumstances the controller may charge a reasonable fee based on the costs of administration. If the controller decides to do so, it "should indicate the amount of costs it is planning to charge to the data subject in order to give the data subject the possibility to determine whether to maintain or to withdraw the request".

(4) Limits

The right of access is subject to the limits that result from Art. 15(4) GDPR (rights and freedoms of others) and Art. 12 (5) GDPR (manifestly unfounded or excessive requests). Furthermore, Union or Member State law may restrict the right of access in accordance with Art. 23 GDPR. Derogations regarding the processing of personal data for scientific, historical research or statistical purposes or archiving purposes in the public interest can be based on Art. 89(2) and Art. 89(3) GDPR accordingly and for processing carried out for journalistic purposes or the purpose of academic artistic or literary expression on Art. 85(2) GDPR.

Rights and Freedoms of Others

Under Article 15(4) GDPR, the right to obtain a copy shall not adversely affect the rights and freedoms of others. Some examples of possible clashes between rights may be trade secrets or intellectual property, in particular the copyright protecting the software (Recital 63). This may also be problematic in the case of, e.g., camera footages, in which more than one person may be shown. Nonetheless, as remarked by the recital, this shall not be an excuse to deny the right to access. A solution for this could be blurring the images so other persons are not recognisable on them, as advised by DPAs, for example, when the angle of a camera results in an excessive processing of data, contrary to the minimization principle.

Other Limits

The controller may charge a reasonable fee or refuse to act on the request where requests from a data subject are manifestly unfounded or excessive, in particular because of their repetitive character, in accordance with Article 12(5) GDPR. For example, the District Court of Limburg has ruled that submitting unclear access requests to controllers with the sole purpose of initiating procedures to collect damages from these controllers when their responses to their requests were delayed constitutes an abuse of the right. Anyhow, and according to the same Article, the controller shall bear the burden of demonstrating the manifestly unfounded or excessive character of the request.

Decisions

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