Article 12 GDPR: Difference between revisions
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==Commentary== | ==Commentary== | ||
The primary goal of Article 12 GDPR is to ensure the efficient exercise of the data subject’s access and information rights under the Regulation. On the one hand, the provision provides for clarity and accessibility standards regarding communications with the data subject, on the other, it lays down technical and procedural rules with regard to the flow of information between the data subject and the controller. This provision reflects the German doctrine of informational self-determination, according to which substantive rights of data subjects can only serve their purpose when supported by clear information as well as proportionate and effective procedures.<ref>''Polčák'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 12 GDPR, pp. 401-402 (Oxford University Press 2020).</ref> | The primary goal of Article 12 GDPR is to ensure the efficient exercise of the data subject’s access and information rights under the Regulation. On the one hand, the provision provides for clarity and accessibility standards regarding communications with the data subject, on the other, it lays down technical and procedural rules with regard to the flow of information between the data subject and the controller. This provision reflects the German doctrine of informational self-determination, according to which substantive rights of data subjects can only serve their purpose when supported by clear information as well as proportionate and effective procedures.<ref>''Polčák'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 12 GDPR, pp. 401-402 (Oxford University Press 2020).</ref><blockquote><u>EDPB Guidelines</u>: on this Article, please see [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/transparency_de Transparency - WP29]</blockquote> | ||
===(1) Requirements of Information in the GDPR=== | ===(1) Requirements of Information in the GDPR=== | ||
Revision as of 13:15, 13 March 2023
Legal Text
1. The controller shall take appropriate measures to provide any information referred to in Articles 13 and 14 and any communication under Articles 15 to 22 and 34 relating to processing to the data subject in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child. The information shall be provided in writing, or by other means, including, where appropriate, by electronic means. When requested by the data subject, the information may be provided orally, provided that the identity of the data subject is proven by other means.
2. The controller shall facilitate the exercise of data subject rights under Articles 15 to 22. In the cases referred to in Article 11(2), the controller shall not refuse to act on the request of the data subject for exercising his or her rights under Articles 15 to 22, unless the controller demonstrates that it is not in a position to identify the data subject.
3. The controller shall provide information on action taken on a request under Articles 15 to 22 to the data subject without undue delay and in any event within one month of receipt of the request. That period may be extended by two further months where necessary, taking into account the complexity and number of the requests. The controller shall inform the data subject of any such extension within one month of receipt of the request, together with the reasons for the delay. Where the data subject makes the request by electronic form means, the information shall be provided by electronic means where possible, unless otherwise requested by the data subject.
4. If the controller does not take action on the request of the data subject, the controller shall inform the data subject without delay and at the latest within one month of receipt of the request of the reasons for not taking action and on the possibility of lodging a complaint with a supervisory authority and seeking a judicial remedy.
5. Information provided under Articles 13 and 14 and any communication and any actions taken under Articles 15 to 22 and 34 shall be provided free of charge. Where requests from a data subject are manifestly unfounded or excessive, in particular because of their repetitive character, the controller may either:
- (a) charge a reasonable fee taking into account the administrative costs of providing the information or communication or taking the action requested; or
- (b) refuse to act on the request.
The controller shall bear the burden of demonstrating the manifestly unfounded or excessive character of the request.
6. Without prejudice to Article 11, where the controller has reasonable doubts concerning the identity of the natural person making the request referred to in Articles 15 to 21, the controller may request the provision of additional information necessary to confirm the identity of the data subject.
7. The information to be provided to data subjects pursuant to Articles 13 and 14 may be provided in combination with standardised icons in order to give in an easily visible, intelligible and clearly legible manner a meaningful overview of the intended processing. Where the icons are presented electronically they shall be machine-readable.
8. The Commission shall be empowered to adopt delegated acts in accordance with Article 92 for the purpose of determining the information to be presented by the icons and the procedures for providing standardised icons.
Relevant Recitals
Commentary
The primary goal of Article 12 GDPR is to ensure the efficient exercise of the data subject’s access and information rights under the Regulation. On the one hand, the provision provides for clarity and accessibility standards regarding communications with the data subject, on the other, it lays down technical and procedural rules with regard to the flow of information between the data subject and the controller. This provision reflects the German doctrine of informational self-determination, according to which substantive rights of data subjects can only serve their purpose when supported by clear information as well as proportionate and effective procedures.[1]
EDPB Guidelines: on this Article, please see Transparency - WP29
(1) Requirements of Information in the GDPR
To delineate the general information to be provided to data subjects, Article 12(1) GDPR refers to Articles 13, 14, 15 to 22 and 34 GDPR. Considered together, these provisions list all communication and information obligations the controller owes to the data subject. As such, no matter whether the information refers to future processing, as in Articles 13 or 14 GDPR, or to existing processing, as in Articles 15 to 22 GDPR, it must always be provided “in a concise, transparent, intelligible and easily accessible form, using clear and plain language." These requirements are even more stringent “for any information addressed specifically to a child”.
Conciseness
Information about the processing must be presented concisely. This is intended to prevent controllers from providing a too detailed description of the processing activity, as data subjects generally have very limited attention spans. Thus, controllers have a positive obligation to prevent data subjects from experiencing information overload.[2] For example, the use of a layered privacy statement may present the most relevant section to the data subject rather than providing them with an unconscionable notice.
Transparency
A data subject should be able to determine in advance what the scope and consequences of the processing entails and they should not be surprised at a later point about the ways in which their personal data has been used (Recital 39 GDPR). For complex, technical or unexpected data processing, the WP29's position is that, in addition to providing the prescribed information under Articles 13 and 14 GDPR, controllers should also separately spell out in unambiguous language what the most important consequences of the processing will be.[3] Thus, if a controller (e.g. provider of a website) does not have sufficient information about the functioning of software it uses (e.g. because the manufacturer of this software does not disclose it), or simply does not understand it (so that it cannot fulfil its duty to inform the data subject), it should refrain from using the software.[4]
Intelligibility
For information to be “intelligible”, it should be understandable by an average member of the intended audience. An accountable data controller will have an understanding of the people that it collects information about, which it should use to determine what they are likely to understand.
In other words, the information must aim to make the data subject understand the processing, as they can only then make free choices with regard to the processing of their personal data. The legal elements underpinning this requirement appear to be quite unambiguous. First, the overall logic of the GDPR points in this direction. If information were to be understood as a mere heap of data, the rights of access, rectification and objection would effectively be meaningless. Further, Recitals 39 and 58 GDPR require that information must not only be clear, but also “easy to understand”. The CJEU seems to go in the same direction, criticising the behaviour of a controller "in the absence of any indications confirming that that clause was actually read and digested".[5] If controllers are uncertain about the level of intelligibility and transparency of the information, and effectiveness of user-facing notices, they can test these through mechanisms such as, inter alia, user panels, readability testing, as well as formal and informal dialogue with industry groups, consumer advocacy groups and regulatory bodies (Article 35(9) GDPR).
Easily Accessible Form
The data subject should not have to seek out the information. Instead, it should be immediately apparent where and how it can be accessed. The controller can provide data subjects with information directly, provide links to it, or clearly signpost information as an answer to a natural language question (e.g. in an online layered privacy statement, in FAQs, by way of contextual pop-ups which activate when a data subject fills in an online form, in an interactive digital context through a chatbot interface, etc.).[6]
Clear and Plain Language
Best practices for clear communication should be followed regardless whether information is written, delivered orally, or by audio/audio-visual methods (including for vision-impaired data subjects). The requirement for clear and plain language means that information should be provided in as simple a manner as possible, avoiding complex sentence and language structures. The information should be concrete as well as definitive, and should neither be phrased in abstract or ambivalent terms, nor leave room for diverging interpretations.
In particular, the purposes of and legal basis for processing the personal data should be clear. Language qualifiers such as “may”, “might”, “some”, “often” and “possible” should also be avoided. Where data controllers opt to use vague language, they should be able to, in accordance with the principle of accountability, demonstrate why the use of such language could not be avoided and how it does not undermine the fairness of processing.[7]
This requirement also affects the language used for the communication. Whilst the GDPR does not expressly regulate the matter, it is clear that the level of intelligibility of information is directly linked to the user’s capacity of understanding a certain language.
Form of the Information
Under Article 12(1) GDPR, information “shall be provided in writing, or by other means, including, where appropriate, by electronic means.” Thus, the provision of information to, or communication with, data subjects should be done in writing by default.
However, the GDPR also allows for other unspecified “means” to be used, including electronic means. For instance, if a data controller operates a website, a written notice is not necessary and electronic forms are to be preferred. In such cases, the use of a webpage containing the information will adequately serve the purpose. The WP29 suggested the implementation of layered privacy statements which allow website visitors to navigate to particular aspects of the relevant privacy statement that are of most interest to them.[8]
The use of a layered approach is nonetheless not the only available option. Other electronic means include “just-in-time” contextual pop-up notices, 3D touch or hover-over notices, and privacy dashboards. Non-written electronic means which may be used in addition to a layered privacy statement might also include videos and smartphone or IoT voice alerts. “Other [not necessarily electronic] means” might include cartoons, infographics or flowcharts.[9]
The WP29 also points out that it is critical that the method chosen by controllers fits the particular circumstances. For example, if a certain device does not have a screen it does not seem appropriate to only provide the information in an electronic written format. In such cases, viable alternatives should be considered, such as providing a printed privacy statement inside the device package or the URL website address where the privacy notice can be found.[10] Finally, the GDPR also expressly empowers data subjects to be provided orally, but only under two conditions: the data subject must request this and the controller must have otherwise verified the data subject’s identity.[11]
(2) Obligation to Facilitate the Exercise of Rights
Under Article 12(2) GDPR the controller should facilitate the data subject in the exercise of their GDPR rights. The Regulation does not define the notion of “facilitate”, but warns the controller in Recital 59 that “modalities should be provided for facilitating the exercise of the data subject's rights” and that these include “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”.
These “modalities” should cover the whole range of activities necessary to fully address a request. First, data subjects should be allowed to easily express their concerns and exercise their rights. This means allowing them to reach the controller and its DPO “in an easy way (a postal address, a dedicated telephone number, and a dedicated e-mail address)”.[12] The WP29 also points out that, “[w]hen appropriate, for purposes of communications with the public, other means of communications could also be provided (emphasis added)”.[13]
Example: Take the case of a user who has requested full access to their data via email. After receiving the request, the controller learns that the amount of information is very high and likely not transmissible via email. In accordance with its obligation to facilitate the request, the controller may provide a dedicated internet page through which the user can select the part of the processing to which it is directed. The user can then choose the desired option for the controller to address the request.
The final part of Article 12(2) GDPR states that the controller shall not refuse to act on a request of the data subject to exercise their rights, unless it demonstrates that it is not in a position to identify the data subject. However, in such circumstances the data subject may provide additional information enabling their identification (Article 11(2) GDPR). In order to allow the data subject to provide this additional information, the controller should inform the data subject of the nature of what is required to allow identification.
This provision, clarifies the meaning of the obligation to facilitate the exercise of the right. It prevents the controller from adopting obstructive tactics relating to alleged "difficulties of identification" unless these actually exist. Consequently, all attempts at verification which require excessive efforts (while adding nothing in terms of security) become inadmissible - and do not constitute 'facilitation'.(Ref to Art. 11)
Example: a user signs up to a social network by providing their email and generating a login password. After a few years of use, they decide to send an email login request because the information download tool provided by the controller does not provide certain information. Upon receipt of the email, the controller requests the user to send a scan of their identification document to verify their identity. This conduct constitutes a breach of the obligation to facilitate the exercise of rights. The controller may nonetheless send a unique identification link to the email address used by the user for registration.[14]
(3) Time Limit and Form of the Request
Under Article 12(3) GDPR, the controller must act on any request by the data subject under Articles 15 to 22 GDPR as soon as possible ("without undue delay") and in any event within one month. That period may be extended by two months if the requests are so complex or numerous that they cannot be answered within one month. A controller cannot extend the duration simply because its inadequate internal organisation prevents them from complying with a request in a timely manner. In any case, when a controller is unable to comply with the one month deadline, it must inform the data subject of the reasons for the delay within one month of receiving the request.[15]
The final sentence of Article 12(3) specifies that where the data subject makes the request by electronic means, and unless otherwise requested by them, the information shall be provided in a commonly used electronic form. However, the provision of electronic means is not an obligation for the controller. Nevertheless, Recital 63 GDPR expressly indicates that, 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 their personal data. This is clearly intended to encourage controllers to facilitate the exercise of access rights.
(4) Failure to Act on the Request
If a controller does not act on the data subject's request, it must inform them why this is the case as soon as possible, and at the latest within one month of receiving the request. It must also tell the data subject about their right to lodge a complaint with a supervisory authority or to seek a judicial remedy.
(5) Free of charge
Under Article 12(5) GDPR, controllers may generally not charge data subjects for the provision of information under Articles 13 and 14 GDPR, or for communications and actions taken under Articles 15-22 GDPR (data subject rights) and Article 34 GDPR (communication of personal data breaches to data subjects). The principle of transparency requires that the provision of such information is not made conditional upon a financial transaction. There are exceptions to this rule, which should nonetheless be interpreted narrowly to avoid undermining the principle of transparency and gratuity of the request.[16] For instance, if the request is manifestly unfounded or excessive, controllers may either charge a reasonable fee or refuse to act on the request. In these cases, controllers must be able to demonstrate the manifestly unfounded or excessive character of a request (Article 12(5), third sentence, GDPR). Hence, controllers should maintain a proper documentation of the underlying facts.
Manifestly unfounded
A request is considered manifestly unfounded if it does not meet essential legal requirements and is therefore “obvious”.[17] For example, if an unauthorised person wants to assert the rights of a data subject, or when an individual requests the erasure of their personal data vis-à-vis a controller who has not stored any data concerning them.[18]
Excessive requests
There is no definition of the term “excessive” in the GDPR. On the one hand, the wording “in particular because of their repetitive character” in Article 12(5) GDPR suggests that the main scenario to which this limb applies is when a data subject makes a large amount of access requests under Article 15 GDPR. On the other hand, the qualifier “in particular” indicates that other reasons that might cause excessiveness are not excluded a priori.[19]
A data subject may nonetheless undoubtedly submit more than one request to a controller. In this case, it has to be assessed whether the threshold of reasonable intervals (see Recital 63) has been exceeded. Controllers must take into account the particular circumstances of the single case carefully. In general, “The more often changes occur in the database of the controller, the more often data subjects may be permitted to request access without it being excessive”.[20] That said, other factors such as the nature of the data, the purpose of the processing and whether the subsequent requests concern the same type of information or processing activities should all be taken into account.[21]
Another relevant factor is the nature of the communication channel between the data subject and controller. Taking the example of an access request, if it is possible to easily provide the relevant information by electronic means or by remote access to a secure system, which makes compliance simple for the controller, it is unlikely that repetitive requests can be regarded as excessive.[22]
(a) Reasonable Fee
If information requests are manifestly unfounded or excessive, in particular due to their repetitive nature, the data controller may charge a reasonable fee. This exception must be interpreted restrictively in order to not excessively constrain data subjects’ right to information. Consequently, provided the request is not manifestly unfounded or repetitive, the controller cannot charge a fee even it was provided for in the contract terms. Controllers should inform data subjects of their intention to charge them a reasonable fee based on Article 12(5) GDPR before doing so, to allow them to decide whether they should withdraw their request to avoid being charged.[23]
(b) Refuse to Act
Alternatively, if requests are manifestly unfounded or excessive, the controller can outright refuse to act on the request. For both of the aforementioned exceptions to the no-fee rule, the controller bears the burden of demonstrating the manifestly unfounded or excessive character of the request.
(6) Verifying the Data Subject
In practice, controllers often reject data subjects’ requests because of alleged problems in identifying them and the risk of disclosing personal data to an unauthorised person which, for example, might contribute to identity theft. If the controller has reasonable doubts concerning the identity of a natural person making a request under Articles 15 to 21 GDPR, additional information may be requested to verify their identity. The controller may use "all reasonable measures" to achieve this (Recital 64 GDPR), including contacting them via known contact details, such as their phone number or postal address. In the context of online services, the data subject can be authenticated, inter alia, by sending a secret code, a link containing a unique token to their email address, or any other contact method used for the registration.[24] Further information about this can be found in the commentary under Article 11 GDPR.
(7) Standardised Icons
Information can also be provided visually, using certain kind of tools (e.g. icons, certification mechanisms, and data protection seals and marks). However, the use of icons should not replace the information needed by data subjects to enforce their rights, nor should they be used as a substitute to compliance with the controller’s obligations under Articles 13 and 14 GDPR. Instead, they could constitute an acceptable first layer of information. For example, an icon representing a lock might be used to signal that data is safely collected or encrypted. Whilst it is one of the EDPB’s tasks under Article 70(1)(r) to provide the Commission with an opinion on the icons, it has not yet published such a document.
(8) Code of Icons
The Commission has the power to determine the information to be displayed by icons as well as the procedures for providing standardised icons. Its competence does not include the binding establishment of specific icons. Per Recital 166 GDPR, the process of developing a code of icons should involve the carrying out of consultations, and research on the efficacy of icons. Article 12(8) does not expressly specify whose responsibility it is to conduct such research, meaning standardised icons could come from either the Commission or standard-setting organisations.
Decisions
→ You can find all related decisions in Category:Article 12 GDPR
References
- ↑ Polčák, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 12 GDPR, pp. 401-402 (Oxford University Press 2020).
- ↑ Heckmann, Paschke, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 12 GDPR, margin number 12 (C.H. Beck 2018, 2nd Edition).
- ↑ WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 7 (available here).
- ↑ Dix, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 12 GDPR, margin number 22 (C.H. Beck 2019).
- ↑ CJEU, C‑61/19, Orange România, 11 November 2020, margin number 46 (available here).
- ↑ WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 8 (available here).
- ↑ WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 9 (available here).
- ↑ WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, pp. 11-12 (available here).
- ↑ WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 12 (available here).
- ↑ WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 12 (available here).
- ↑ Dix, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 12 GDPR, margin number 22 (C.H. Beck 2019).
- ↑ WP29, ‘Guidelines on Data Protection Officers (‘DPOs’)’, 16/EN WP243 rev.01, 5 April 2017, p. 13 (available here).
- ↑ WP29, ‘Guidelines on Data Protection Officers (‘DPOs’)’, 16/EN WP243 rev.01, 5 April 2017, p. 13 (available here).
- ↑ EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), p. 26 (available here).
- ↑ Information Commissioner’s Office, 21 October 2020, Guide to the Right to Access, October 21, 2020, pp. 16-17 (available here).
- ↑ EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), p. 53 (available here).
- ↑ In its Guidelines on access requests, the EDPB emphasises that “there is only very limited scope for relying on the «manifestly unfounded» alternative of Art. 12(5) in terms of requests for the right of access”. See, EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), p. 51 (available here).
- ↑ Heckmann, Paschke, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 12 GDPR, margin number 43 (C.H. Beck, 2nd Edition 2018).
- ↑ EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), p. 53 (available here).
- ↑ EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), p. 54 (available here).
- ↑ EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), p. 54 (available here, p. 54).
- ↑ Importantly, and once again, especially for what concerns access requests, the simple fact that it would take the controller a vast amount of time and effort to provide the information cannot on its own render the request excessive. See, EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), p. 55 (available here).
- ↑ EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), pp. 56-57 (available here).
- ↑ According to the WP29’s guidelines on the right to data portability, as endorsed by the EDPB, insofar as a digital communication channel already exists between the data subject and the controller, the latter must implement or re-use an authentication procedure in order to ascertain the identity of the data subjects requesting their personal data or exercising the rights granted by the GDPR. See, WP29 ‘Guidelines on the right to data portability’, 16/EN WP 242 rev.01, 5 April 2017, p.14 (available here).
