Article 11 GDPR: Difference between revisions
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<br /><center>'''Article 11: Processing which does not require identification'''</center> | <br /><center>'''Article 11: Processing which does not require identification'''</center> | ||
<span id="1"> 1. If the purposes for which a controller processes personal data do not or do no longer require the identification of a data subject by the controller, the controller shall not be obliged to maintain, acquire or process additional information in order to identify the data subject for the sole purpose of complying with this Regulation.</span> | <span id="1"> 1. If the purposes for which a controller processes personal data do not or do no longer require the identification of a data subject by the controller, the controller shall not be obliged to maintain, acquire or process additional information in order to identify the data subject for the sole purpose of complying with this Regulation.</span> | ||
Revision as of 10:41, 8 March 2022
Legal Text
1. If the purposes for which a controller processes personal data do not or do no longer require the identification of a data subject by the controller, the controller shall not be obliged to maintain, acquire or process additional information in order to identify the data subject for the sole purpose of complying with this Regulation.
2. Where, in cases referred to in paragraph 1 of this Article, the controller is able to demonstrate that it is not in a position to identify the data subject, the controller shall inform the data subject accordingly, if possible. In such cases, Articles 15 to 20 shall not apply except where the data subject, for the purpose of exercising his or her rights under those articles, provides additional information enabling his or her identification.
Relevant Recitals
Commentary
The data minimization principle limits controllers in their processing operations specifically requiring them to only process data which is necessary for the fulfillment of specific purposes. Under Article 11(1), when a processing operation does not or no longer requires the identification of the data subject, then the controller should act accordingly, deleting or otherwise hiding the identifying reference to the data subject. When this happens, the controller is not obliged to obtain additional information about the data subject for the sole purpose of GDPR compliance. Article 11(2) provides for a significant exception to the above-mentioned rule. If a data subject wants to exercise their GDPR rights and to that extent provides further information allowing their (re)identification, the controller shall receive the information and address the request, if possible.
(1) If the data subject is not identified, the GDPR applies in part
The provision does not shine for clarity. Article 11 applies when “personal data do not or do no longer require the identification of a data subject”. One could think that this is an anonymization scenario, but this conclusion would make little sense. First, since the GDPR does not apply to anonymous data, it would be useless to point out that “the controller shall not be obliged to maintain, acquire or process additional information in order to identify the data subject”. Second, under Article 11(2), it would be impossible to inform a data subject who is not identifiable.[1]
If full anonymization does not make sense in this case, going back to the basic will not harm. Under Article 4(1) GDPR personal data means any information relating to an “identified” or “identifiable” natural person. Looking attentively at Article 11(1) GDPR wording, it seems clear that the provision covers only constellations in which the data subject is not or no longer “identified” [2] but clearly excludes cases where he or she is still “identifiable”. In other words, this is a case of pseudonymisation which, according to Recital 26, refers to information about an identifiable person.[3]
In case of pseudonimisation, no matter if implemented since the beginning (“does not require”) or at a later stage (“does no longer require”), the GDPR grant the controller a privilege which reflects the favor towards data minimization, storage limitation e data security. In particular, the controller shall not be obliged to retain, obtain or process further information about the person if such information is needed to identify the individual and comply with one or more part of the GDPR.
Making good use of the text, sharp doctrine observes that this privilege is not absolute but refers exclusively - and, we add, obviously - only to those parts of the GDPR that require the identification of the data subject. [4] Some examples are available. Take the case of the Google Street View. This process undoubtedly involves the collection of some personal data of inhabitants and their homes. However, it is argued, Google would not be obliged to acquire further contact details from individual inhabitants in order to inform them of the processing under Articles 13 or 14 GDPR. This conclusion would be grounded in application of Article 11(1), final sentence, GDPR.[5]
Whether or not a certain GDPR provision requires the identification of the data subject must be assessed with the utmost attention and as under no circumstances should Article 11(1) GDPR be regarded as a carte blanche for the transgression of data protection regulations.[6] In particular, all other GDPR requirements that do not require the data subject’s identification remain applicable, including, but not limited to, security of processing (Article 32(1) GDPR) and the general principles of processing set out in Article 5 GDPR.
(2) If the data subject exercises their rights, the controller must try the identification
Paragraph 2 provides a specific framework for a particular case of GDPR requirements, that is the rights of the data subject as set out in Articles 15 to 20 GDPR. This situation requires, by definition, the identification of the data subject (a right exists insofar as it is given to a specific person and he or she exercise it).
In such circumstances, if, after pseudonymisation ("In cases referred to in paragraph 1 of this Article"), the controller receives a request to exercise the right but for technical reasons is unable to identify the data subject, the controller must (i) prove this impossibility and (ii) inform the data subject of the reasons which render the request impossible. This will suffice to "paralyse" the claim ("In such cases, Articles 15 to 20 shall not apply") unless - and herein lies the exception to the rule of paragraph 1 - the data subject provides additional information allowing his or her identification. If, following receipt of the additional information, the identification is possible, the exception will not apply and the controller shall address the data subject’s request.
Burden of Proof
The controller must be able to demonstrate the impossibility of identifying the data subject. The demonstration should provide a fair explanation of the reasons why the controller is unable to do so. Due to the fairness and transparency principle (Article 5(1)(a) GDPR), generic or circular arguments ("Our systems are unable to identify your data") are insufficient to meet the requirement of a proper demonstration.
Obligation to Inform
Article 12(2) GDPR provides for a peculiar informative obligation ("Where [...] the controller is able to demonstrate that it is not in a position to identify the data subject, the controller shall inform the data subject accordingly, if possible"). Such an information, which is clearly different from the information received under Articles 13 or 14 GDPR, is particularly important as it allows the data subject to assess the allegedly non-identifying processing and, where they desire, provide additional information to enable their identification. For this reason, the controller should provide tailored information and explain why identification is not possible. Furthermore, in application of the principle of fairness in the processing of personal data, the controller should indicate in advance which data the data subject should provide for its (re)identification.[7]
Decisions
→ You can find all related decisions in Category:Article 11 GDPR
References
- ↑ Georgieva, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 11 GDPR, p. 395 (Oxford University Press 2020).
- ↑ Indeed, certain processing operations require the collection of personal data, but not necessarily the (ongoing) identification,of the data subject. It can be assumed that in general business transactions only a few use cases under Article 11(1) exist because the business purpose usually requires identification of the business partner, for example to carry out deliveries, to assess creditworthiness or to maintain business correspondence.
- ↑ See Kampert, in Sydow, Europäische Datenschutzgrundverordnung, Article 11 GDPR, margin number 7 (Beck 2018, 2nd ed.) (accessed 5 January 2022). Along the same line, Gola, Datenschutz-Grund-verordnung, Article 11 GDPR, margin number 2 (Beck 2018, 2nd ed.) (accessed 10 January 2022).
- ↑ Kampert, in Sydow, Europäische Datenschutzgrundverordnung, Article 11 GDPR, margin number 7 (Beck 2018, 2nd ed.) (accessed 5 January 2022).
- ↑ For this and other examples, see Gola, in Gola, Datenschutz-Grund-verordnung, Article 11 GDPR, margin number 6-9 (Beck 2018, 2nd ed.) (accessed 5 January 2022).
- ↑ Kampert, in Sydow, Europäische Datenschutzgrundverordnung, Article 11 GDPR, margin number 7 (Beck 2018, 2nd ed.) (accessed 5 January 2022).
- ↑ In this regard, the WP29 has already invited stakeholders "to elaborate, precisely with reference to Article 11 calls for proposals from the C-ITS WG on the concept of ‘additional information’ that can be provided in the context of this new service to make this provision effective". WP29, Opinion 3/2017 on processing personal data in the context of Cooperative Intelligent Transport Systems, p. 7.