Article 12 GDPR

← Article 12: Transparent information, communication and modalities for the exercise of the rights of 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 12: Transparent information, communication and modalities for the exercise of the rights of the data subject

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

Recital 11: Strengthening of Rights and Enforcement

Effective protection of personal data throughout the Union requires the strengthening and setting out in detail of the rights of data subjects and the obligations of those who process and determine the processing of personal data, as well as equivalent powers for monitoring and ensuring compliance with the rules for the protection of personal data and equivalent sanctions for infringements in the Member States.

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 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 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 60: Information Requirements

The principles of fair and transparent processing require that the data subject be informed of the existence of the processing operation and its purposes. The controller should provide the data subject with any further information necessary to ensure fair and transparent processing taking into account the specific circumstances and context in which the personal data are processed. Furthermore, the data subject should be informed of the existence of profiling and the consequences of such profiling. Where the personal data are collected from the data subject, the data subject should also be informed whether he or she is obliged to provide the personal data and of the consequences, where he or she does not provide such data. That information 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 should be machine-readable.

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.

Recital 73: Restrictions by Member States

Restrictions concerning specific principles and the rights of information, access to and rectification or erasure of personal data, the right to data portability, the right to object, decisions based on profiling, as well as the communication of a personal data breach to a data subject and certain related obligations of the controllers may be imposed by Union or Member State law, as far as necessary and proportionate in a democratic society to safeguard public security, including the protection of human life especially in response to natural or manmade disasters, the prevention, investigation and prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security, or of breaches of ethics for regulated professions, other important objectives of general public interest of the Union or of a Member State, in particular an important economic or financial interest of the Union or of a Member State, the keeping of public registers kept for reasons of general public interest, further processing of archived personal data to provide specific information related to the political behaviour under former totalitarian state regimes or the protection of the data subject or the rights and freedoms of others, including social protection, public health and humanitarian purposes. Those restrictions should be in accordance with the requirements set out in the Charter and in the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Recital 166: Delegated Acts

In order to fulfil the objectives of this Regulation, namely to protect the fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data and to ensure the free movement of personal data within the Union, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission. In particular, delegated acts should be adopted in respect of criteria and requirements for certification mechanisms, information to be presented by standardised icons and procedures for providing such icons. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing-up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

Commentary

Criticism of lengthy, hardly comprehensible privacy policies, confusing online forms and controllers that cannot be easily reached is omnipresent. Article 12 GDPR is meant to take care of these issues and ensure frank and transparent information, as well as the efficient exercise of the data subject’s rights. Transparency and efficient communication is a prerequisite to exercise the rights under the GDPR, but the lack of clear information and efficient response to the exercise of rights ir more often than not one of the main stumbling blocks for data subjects in practice.

Article 12 GDPR requires similar standards than other EU law, such as the Unfair Terms Directive 93/13/EEC that limits the use of unclear, unfair or disadvantageous contractual terms or the requirement of any service provider to provide an email address to communicate 'rapidly' and 'efficiently' under Article 5(1)(c) eCommerce Directive 2000/31/EC.

To ensure that the rights of data subjects are not undermined, Article 12 regulates clarity and accessibility standards regarding communications with the data subject. The provisions of Article 12 largely apply to Articles 13, 14, 15 to 22 and 34 GDPR and thereby form horizontal rules, that must always be kept in mind when these Articles are applied. This horizontal application also means, that Article 12 GDPR covers situations where the controller must actively provide information (such as under Articles 13, 14, or 34 GDPR) as well as situations where the controller must be able to respond to requests or the exercise of rights by the data subject quickly and efficiently.

Not all horizontal rules in Article 12 GDPR have a corresponding material requirement in Articles 13, 14, 15 to 22 and 34 GDPR. The horizontal rules do not always fit the named Articles. Therefore, Article 12 GDPR must be read in conjunction with the context and purpose of the relevant Article and only applies where there is a corresponding aim in an Article.

Example: While any information must be "concise" it does not mean that a copy of personal data under Article 15(3) GDPR should not be fully provided, but it does mean that a privacy policy under Article 13 should not be too long.

Article 12 GDPR may be limited by Union or national Law in accordance with Article 23 GDPR.

(1) Clear and transparent communication

Article 12(1) GDPR requires controllers to take appropriate measures to provide any information under Articles 13, 14, 15 to 22 and 34 GDPR in a manner that is concise, transparent, intelligible and easily accessible, using clear and plain language.

The provision set out two main requirements. Firstly, the controller must precisely present the information in terms of content (preciseness requirement). Secondly, the information must be presented in a manner that is easily understandable to the data subject without requiring excessive cognitive effort or time (comprehensibility requirement).

Appropriate measures

Complying with the requirements of Article 12(1) GDPR may be challenging. For example, deciding what is appropriate to satisfy both the preciseness and the clarity requirement in a privacy information will not always be easy. As a matter of fact, there may even be conflicts between preciseness and clarity, as the former usually pushes in the direction of more complexity, whereas the latter requires a certain degree of simplification. In certain circumstances, for instance, a given processing may not be easy to explain, especially where a considerable amount of data is processed and numerous actors are involved in the processing chain.

The wording of Article 12(1) GDPR allows the controller some leeway to pick an "appropriate" measure. This may be simple texts in standard situations and a very elaborate system in complex situations. Drafting information that is short and concise is not easy, especially when it comes to complex data processing. Complying with Article 12(1) GDPR requires substantial effort, skill and innovative thinking.

Example: A small business may just have a box with a sign saying "drop your business card here to get updates via email" and some additional small print to satisfy Article 12(2) GDPR. A controller of a complex processing system may need to draft a detailed privacy policy, explainer videos for complex issues, multiple layers of information to ensure "appropriate" information.

Importantly, the complexity of processing is not a justification for reducing the transparency standards. Complex processing operations will usually require more effort to make transparency efforts "appropriate" in relation to the interference with the rights of a data subject.

EDPB Guidelines: The [controller's] assessment should aim at choosing the most appropriate method for providing all information covered by this right, depending on the specific circumstances in each case. As a consequence, a controller who processes a vast amount of data on a large scale must accept to undertake great efforts to ensure the right of access to the data subjects in a concise, transparent, intelligible and easily accessible form, by using plain and clear language.

Article 12 GDPR does not allow to limit the rights of data subjects due to the complexity of a controller's system. If it is not possible to process personal data while also complying with the transparency obligations under Article 12 GDPR, then the system can simply not be used to process personal data legally.

Content

The controller is obliged to provide all the information the law requires in connection with the specific Article of the GDPR. In all cases, the controller's effort must be to include all the information it is required to provide. This may be a major effort.

Example: A controller does not have sufficient information about the functioning of software it uses. It will be difficult for the controller to fulfil its duty to inform the data subject. Consequently, in order to comply with transparency duties, it would have to request information from the manufacturer of the software or refrain from using the software if the information is not provided.

The controller's obligation covers, where appropriate, measures to correctly detect the content of the request and assign it to the responsible department. The same goes for internal policies and technical equipment enabling the controller's staff to retrieve the data and perform any required operation (e.g. copy, rectification, deletion).

Concise

Information about the processing must be presented concisely. This is intended to prevent controllers from providing an overly lengthy or convoluted description of the processing activity, as data subject usually will not read multiple pages of the text. Thus, controllers have a positive obligation to prevent data subjects from experiencing information overload. There are many linguistic approaches to achieve concise information, without loosing content.

In the area of privacy policies, the use of a layered privacy statements is a common approach to present the most relevant section to the data subject rather than providing them with an unconscionable notice. A layered approach may however not be used to hide the more problematic processing in a lower layer. The most relevant information or any unexpected processing should be easily available.

EDPB: It should be noted that layered privacy statements/ notices are not merely nested pages that require several clicks to get to the relevant information. The design and layout of the first layer of the privacy statement/ notice should be such that the data subject has a clear overview of the information available to them on the processing of their personal data and where/ how they can find that detailed information within the layers of the privacy statement/ notice.

Transparency

In the context of Article 12 GDPR, the main goal of transparency is the accurate and fair understanding of the information and communication provided to the data subjects under Articles 13, 14, 15 to 22 and 34 GDPR. This is needed because, otherwise, it would be impossible for them to fully enjoy the different rights granted by those provisions. Transparency requires a fair and honest communication of the processing operation. Withholding of hiding information is the antithesis of "transparent" information. The use of "dark patterns" or other forms of deceptive user interface design violated Article 12(1) GDPR.

Example: A controller uses the term “To allow you a better experience, we may share some information with our partners”, when in fact the data is sold to a specific data broker for the purpose of advertisement. This would not be a “transparent” explanation of the intended processing. A data subject may easily exercise a right to erasure against a known recipient, but is not able to exercise his or her rights when only informed about undisclosed "partners".

Intelligibility

Information is “intelligible” when it is understandable by a member of the intended audience. In some cases there may be multiple audiences that a controller addresses, including people with disabilities, different language skills or education. Therefore, a data controller must have an understanding of the people that it collects information about, which it should use to determine what they are likely to understand.

Example: A controller dealing with professionals working in a specific area may rely on the fact that they understand the relevant professional terminology. A controller that processes personal data of average consumers would have to avoid any jargon. A controller catering to audiences where a relevant number of data subjects does not speak the local language as the first language may need to use simplified language.

In many cases the intelligibility of a text can be objectively tested by asking members of the target audience if they understand the information. There is a growing movement towards simplified writing, which can provide relevant information to ensure understandable texts in each language. Intelligibility is also a relevant factor, when various formats are used, like videos, animations or "gamified" information, as such information may not be accessible to all data subjects, such as blind or elderly data subjects.

EDPB: If controllers are uncertain about the level of intelligibility, 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).

Use of languages

The requirement of "intelligibility" also affects the language used for the communication. Whilst the GDPR does not expressly regulate the use of languages, it is clear that the level of intelligibility of information is directly linked to the user’s capacity of understanding a certain language as a native or non-native speaker. This can be separated into information that must be actively provided by the controller and passive communication initiated by the data subject (such as the exercise of a right).

Active communication by the controller

From a factual perspective, controllers that know that a relevant part of their data subjects do not speak the dominant language in a country and also offer products in different languages, may need to provide the relevant information in these languages too. Given that the right to data protection is a fundamental right, the duty to provide intelligible information is neither limited to EU citizens or residents, nor official EU languages. The situation may also require translation of documents to non-EU languages.

The GDPR does not clearly limit the efforts that a controller has to take when it comes to translations, but it must take "appropriate" measures to provide the information to everyone. If the data subjects are not known, a minimum would be to provide information in all languages that the service of the controller is offered in or the official languages of all the markets served. At the same time, it does not seem "appropriate" to demand that any possible data subject must get a translation to their mother tongue.

Example: A German company mainly employs persons from former Yugoslavia. Most employees only speak a couple of words of German. The employer could provide information under Article 13 GDPR in Serbo-Croatian, if this ensures that all employees understand the notice.

Example: A hotel in Venice must not provide a privacy policy in all possible languages of any possible tourist, but it would be "appropriate" to provide it in common international languages like English, French or Spanish. It may also be "appropriate" to provide the language of the most common visitors, which may be Chinese for an Italian hotel focusing on the Chinese market.

Providing information that is "intelligible" also means that translations must be accurate and understandable. A mere auto-translation may not be sufficient for a complex privacy policy.

EDPB: Where the information is translated into one or more other languages, the data controller should ensure that all the translations are accurate and that the phraseology and syntax makes sense in the second language(s) so that the translated text does not have to be deciphered or re-interpreted. (A translation in one or more other languages should be provided where the controller targets data subjects speaking those languages.)

Passive communication initiated by the data subject

If a data subject exercises his or her rights under Articles 13, 14, 15 to 22 and 34 GDPR in another language than used by the controller, the controller must respond in the relevant language if the data subject objectively does not understand the communication or information in the provided language. The requirement is that the communication must be "intelligible" for the data subject. If a data subject merely feels that it would be more convenient to communicate in his or her mother tongue, but understands the language provided by the controller, the information is still "intelligible". For unfounded or excessive request, see also paragraph 5 below.

Clear and plain language

The requirement for clear and plain language means that information should be provided in as simple a manner as possible, avoiding to downplay or 'reframe' processing operations, as well as complex sentence and language structures. Text that may be understandable for lawyers, compliance experts or technicians, may not be understandable for average users with limited language skills or limited education. For most languages, guidelines exist on how to simplify legal language.

It is common that controller information is drafted to ideally avoid taking a clear position. While there are historic reasons for this approach, the GDPR clearly requires to plainly say which processing is undertaken and what is not done. Cloudy wording, that tries to camouflage the processing, or aims at marketing purposes rather than at providing a plain explanation, would violate this provision. 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.

Common misunderstanding: Common qualifiers such as “may”, “might”, “some”, “often” and “possible” should be avoided. Equally, open-ended lists, usually stating with wording like “such as” are not clear and plain. 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.

Information that suggests that processing goes further than in reality ("overclaiming") also constitutes false and thereby unclear information. While such approaches are often used "just to be sure" that every processing operation is covered, overclaiming leads to a situation where the data subject cannot be sure that the statement is fully accurate. Overclaiming can also lead to inconsistencies between information provided ex-ante under Article 13 and 14 GDPR and information provided ex-post under Article 15 GDPR.

Information addressed to children

Article 12(1) highlights that the above requirements are especially relevant when information is addressed to children. In the larger context, this is just a specific situation where information must be provided in a form that is understandable for the relevant audience.

Form

Easily accessible form

The "easily accessible" element implies that the data subject should not have to actively search for the information. It should be readily visible and clear to them where and how they can access the information. This can be achieved through various means, such as providing the information directly to them (e.g. in an attachment), linking to the resources on a website, or providing it as an answer to a natural language question. Examples of how this can be implemented include online layered privacy statement, FAQs, a reference to the information in the welcome message of a hotline, contextual pop-ups that activate when a data subject fills in an online form, or interactive digital interfaces like chat-bots.

EDPB: For apps, the necessary information should also be made available from an online store prior to download. Once the app is installed, the information still needs to be easily accessible from within the app. One way to meet this requirement is to ensure that the information is never more than “two taps away” (e.g. by including a “Privacy”/ “Data Protection” option in the menu functionality of the app). Additionally, the privacy information in question should be specific to the particular app and should not merely be the generic privacy policy of the company that owns the app or makes it available to the public.

Easy access to information also plays a major role whenever physically impaired people (e.g. blind or hearing-impaired people) are concerned. From this perspective, alongside with more traditional formats, the controller must be able to use alternative means of communication which suit the data subject's specific needs.

In writing or by other means

Under Article 12(1) GDPR, information “shall be provided in writing, or by other means, including, where appropriate, by electronic means.” The written form is therefore the default option. However, in addition to the written form, other means can be used, and that includes electronic information, videos, graphics, non-verbal methods and oral information.

In writing

The most common form of providing relevant information is clearly in writing. In offline context this will usually be printed. There is no duty to provide the information in a format that can be kept by the data subject, it must only be "provided". It is also possible to provide information on a sign or similar formats.

Electronic means

In addition to the traditional written form, the GDPR allows for providing information in electronic form. The use of the disjunctive phrase "or", followed by the expression "where appropriate", suggests that the written form may be abandoned in certain circumstances, and that the controller has some discretion in this regard.

In case of online activities, 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. The use of a layered approach is nonetheless not the only available option. Other electronic means include “just-in-time” contextual pop-up notices in a form or flow, 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 means

“Other [not necessarily electronic] means” might include cartoons, info-graphics or flowcharts. The method chosen by controllers must fit the particular circumstances. For example, if a certain device does not have a screen, controllers can provide a printed privacy statement inside the device package or redirect the data subject to the URL website address or QR code where the privacy notice can be found. However, such means must be reasonably accessible to data subjects of all ages, ability and technical expertise.

In many cases, a combination of multiple means (e.g. a written policy and parallel graphics, videos or in-line information) will be best suited to ensure broad access and the best use of alternative forms of information.

Oral information

Finally, the GDPR also allows data subjects to request information to be provided orally. Controllers "may" do so under two conditions: (i) the data subject must request oral information or communication and (ii) the controller must have otherwise verified the data subject’s identity. The second requirement, only refers to cases where data subject's authentication is necessary. There is no duty by the controller to provide information orally.

Example: A data subject wants to know the results of a medical exam. The staff member at the clinic should verify the identity of the person. The information can then be provided orally.

(2) Facilitation of the exercise of rights and identification

Under Article 12(2) GDPR the controller must facilitate the data subject in the exercise of their GDPR rights under Articles 15 to 22 GDPR and may refuse these rights if a controller is unable to identify the data subject. Other than Article 12(1) these horizontal rules do not apply to the duty to provide information under Article 13 and 14 GDPR or Article 34 GDPR.

Shall facilitate the exercise of rights

The term "facilitate" codifies a proactive duty by the controller who must take any reasonable action to ease the exercise of GDPR rights under Articles 15 to 22 GDPR. The Regulation does not define the notion of “facilitation”, but warns that “modalities" should be provided. These “modalities” should cover the whole range of activities a controller undertakes to fully address a GDPR right request. In particular, controllers must demonstrate that "the way to handle the request aims to give the broadest effect to the right [...] and that it is in line with its obligation to facilitate the exercise of data subjects rights (Art. 12(2) GDPR)."

Data subjects should be allowed to reach the controller “in an easy way (a postal address, a dedicated telephone number, and a dedicated e-mail address)”. This duty is very similar to the existing requirement of any service provider to provide an email address that allows to communicate "rapidly" and "efficiently" under Article 5(1)(c) eCommerce Directive 2000/31/EC. The data subject can choose the format in which it wants to send any request to the controller, as long as it is a common format (such as emails, postal letters, phone calls, PDFs and alike) and it is not sent to a clearly irrelevant contact point. Controllers may not limit communication to certain formats or forms, unless this is factually required.

Controllers that embrace this duty see the exercise of rights as a feature of their product or service. Controllers may use existing capacities and knowledge in the area user interface (UI) and user experience (UX) design to "facilitate" data subjects to exercise their rights as seamlessly as placing an order. Common approaches include a dedicated email address for GDPR requests, online forms or in-line options to delete, correct or download information for the data subject. While there is an overlap with other business functions (like self-service portals to update personal details in a profile) is crucial that these tools fully implement the rights of data subjects, or that limitations are clearly communicated, if they are marketed as a GDPR tool.

Example: A controller implements a "privacy tool" for users to edit and delete certain information or get a copy of their data - this facilitates the exercise of rights. However, if data subjects are forced to use this tool and the controller does not allow to exercise their rights by other means, this does not facilitate the exercise of rights for data subjects that are unable to use these tools. Furthermore, if the "privacy tool" does not provide a full copy of all data under Article 15(3) and lacks information under Article 15(1) GDPR, it may actually be deceptive to refer data subjects to this tool when they seek to exercise their rights under Article 15 GDPR. It may however be fair to refer to the "privacy tool" to change a wrong name or address, if this can be done there and this is the sole request be the data subject.

Once the request is received, the controller should be able to handle it internally as efficiently as possible, and ensure the request be handled by the appropriate department. Any subsequent interaction with the data subject must once again be marked by the principle of fairness and must not result in delay tactics, rephrasing of the request and alike. At the same time, the facilitation of the exercise of rights may include asking back about the exact wishes of the data subject or requesting more information to fully comply with the request, for example when a controller processes various data in multiple systems or additional information allows the controller to comply quicker or more targeted.

Identification of personal data impossible

It is important and in the interest of the data subject that only the correct personal data is subject to deletion, rectification or access. To avoid that controllers would keep more information than otherwise necessary, Article 11 GDPR clarifies that controllers must not keep information identifying a data subject just to comply with the Regulation.

The situation described under Article 11(2) GDPR and Article 12(2) second sentence, concerns situations were the personal data that relates to a data subject cannot be identified, for example because it got anonymised or aggregated to an extent that it does not form personal data anymore. In other words: the personal data cannot be found or clearly linked to the data subject anymore. This is to be differentiated from a mere lack of authentication, which means that the personal data can be identified, but the controller has questions if the person making the request is the actual data subject. Matters of authentication are dealt with in Article 12(6) GDPR.

It is unclear why Article 12(2) GDPR refers to Articles 15 to 22 GDPR, while Article 11(2) GDPR only refers to Articles Articles 15 to 20 GDPR - excluding Articles 21 and 22 GDPR. While it is likely a mistake in the drafting process and Articles 21 and 22 GDPR are also meant, some argue that the rights of the controller to refuse request are more limited under Articles 21 and 22 GDPR.

In relation to cases under Article 11 GDPR, Article 12(2) GDPR states that the controller may 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 him or her. Obviously, the data subject can provide additional information enabling their identification (Article 11(2) GDPR). Controllers should inform the data subject of the nature of what is required to allow identification. This provision, creates a burden of proof and thereby seeks to prevent obstructive tactics relating to alleged "difficulties of identification" unless these actually exist.

(3) Time limit and form of the response

Under Article 12(3) GDPR, the controller must inform the data subject about the "action taken" following receipt of a request under Articles 15 to 22 GDPR.

Information on action taken

Depending on the specific request, the required "action" will consist of retrieving, arranging and disclosing personal data (for instance, the copy of data under Article 15(3) GDPR). In others, the action takes place within the controller's IT systems (data rectification and deletion, under Articles 16 and 17 GDPR). In any case, controllers shall provide the data subject with information about the action taken, therefore a response is always necessary.

Without undue delay, but no longer than one month

This must happen as soon as possible ("without undue delay") and in any event within one month. This means that if a controller can reasonably take action within a day or week, it cannot wait for a full month to act. It is a matter of the individual case if a controller acted “without undue delay”. While acute staffing shortage, the need to consult external legal council and alike can mean that an action takes longer than a couple of days, only stating to act when the one month deadline approaches would violate the law.

The EDPB confirms that the period in question should be calculated according to Regulation (UE) 1182/71. The deadline for data subject's request starts upon receipt of the application. Receipt occurs when the request comes within the controller's sphere of influence and can be noted, such as through digital storage or placement in the controller's mailbox.

Example: An organisation receives a request on 5 March. If they can respond within a couple of business days, they must do so. The maximum time limit of one month starts from the same day. This gives the organisation an ultimate deadline until and including 5 April to comply with the request, at the latest.

Extension of deadline

The one-month deadline may be extended by two months "where necessary". The necessity should be evaluated in relation to the complexity and number of requests. The wording implies that such requirements must exist at the same time. A typical example would be unexpected waives of requests after a data breach or other event that lead unusual numbers of data subjects to contact a controller. Either way, 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.

Corresponding means

The final sentence of Article 12(3) GDPR 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 - "where possible". In other words, answering by electronic means is not an absolute obligation for the controller. Nevertheless, Recital 63 GDPR expressly indicates that - again 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 via so-called “Download Tools” and alike.

On the other hand, the wording "unless otherwise requested by them" makes clear that the default option for the form of the response - commonly used electronic form - can be changed if the data subject explicitly asks for another format. For example, the data subject can ask for a paper letter even if they made the request by electronic means.

(4) Failure to act on the request

If a controller does not act on the data subject's request, it must explain 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.

These are obviously cases in which one or more of the prerequisites of the GDPR or the right exercised do not exist, or there are other grounds for exclusion of the right. To give a few examples, the controller may reject the request if he considers that no personal data is being processed, thus failing to apply the GDPR in its entirety (Article 4(1) and (2) GDPR). Or if the request is 'manifestly unfounded or excessive' (Article 12(5) GDPR). Again, the controller may reject a request for access, or a part thereof, in order to defend "the rights and freedoms of others" (Article 15(4) GDPR) or, a request for deletion, on the basis of one of the cases provided for in Article 17(3) GDPR.

In such circumstances, the communication must convey "the reasons for not taking action". It is therefore necessary to at least indicate the legal title on which the rejection. Based on the above-mentioned examples, Articles 4(1), 12(5), 15(4) or 17(3) GDPR.

(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. 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 obviously unfounded. 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.

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 uses the free rights under the GDPR to bombard the controller with requests. On the other hand, the qualifier “in particular” indicates that other reasons that might cause excessiveness are not excluded a priori.

A data subject may nonetheless 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”. 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.

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.

(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.

(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.

The relationship between these two options is not clarified by the GDPR. The wording of Article 12/5) GDPR seems to suggest that the controller has a free choice between the two alternatives. Nonetheless, it has been pointed out that a refusal to act can violate the good faith principle to the extent that the data subject offers to pay a reasonable fee.

(6) Verifying the data subject

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. However, this cannot lead to excessive demands and to the collection of personal data which are not relevant or necessary to strengthen the link between the individual and the personal data requested.

EDPB: For instance, when a given processing operation begins with the storage of a cookie into the user's device, a controller cannot ask the data subject to provide IDs, signatures and in general anything that cannot help the identification purpose. However, if Mr. X tries to exercise his access right by e-mail or by regular mail, then in this context C will have no other choice to ask Mr. X to provide “additional information” (Art. 12(6)) in order to be able to identify the advertising profile associated with Mr. X. In this case, the additional information will be the cookie identifier stored in the terminal equipment of Mr. X.

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. Further information about this can be found in the commentary under Article 11 GDPR.

The method used for authentication should be "relevant, appropriate, proportionate and respect the data minimisation principle."

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 make an access request under Article 15 GDPR via email. Upon receipt of the email, the controller requests the user to send a scan of their identification document to verify their identity. Requiring IDs when they are not necessary constitutes a breach of the obligation to facilitate the exercise of rights, as the controller could implement less burdensome and instrusive verification mechanisms, such as asking the user to log in or sending a verification code to the email address.

(7) Standardised icons

Whilst it is one of the EDPB’s tasks under Article 70(1)(r) GDPR to provide the Commission with an opinion on the icons, it has not yet published such a document.

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.

The provision therefore has no practical relevance at this time.

(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) GDPR 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

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