Article 16 GDPR: Difference between revisions

Revision as of 10:41, 8 March 2022

← Article 16 - Right to rectification →

Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 16 - Right to rectification

The data subject shall have the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her. Taking into account the purposes of the processing, the data subject shall have the right to have incomplete personal data completed, including by means of providing a supplementary statement.

Relevant Recitals

Recital 39: Principles of Data Processing

Any processing of personal data should be lawful and fair. It should be transparent to natural persons that personal data concerning them are collected, used, consulted or otherwise processed and to what extent the personal data are or will be processed. The principle of transparency requires that any information and communication relating to the processing of those personal data be easily accessible and easy to understand, and that clear and plain language be used. That principle concerns, in particular, information to the data subjects on the identity of the controller and the purposes of the processing and further information to ensure fair and transparent processing in respect of the natural persons concerned and their right to obtain confirmation and communication of personal data concerning them which are being processed. Natural persons should be made aware of risks, rules, safeguards and rights in relation to the processing of personal data and how to exercise their rights in relation to such processing. In particular, the specific purposes for which personal data are processed should be explicit and legitimate and determined at the time of the collection of the personal data. The personal data should be adequate, relevant and limited to what is necessary for the purposes for which they are processed. This requires, in particular, ensuring that the period for which the personal data are stored is limited to a strict minimum. Personal data should be processed only if the purpose of the processing could not reasonably be fulfilled by other means. In order to ensure that the personal data are not kept longer than necessary, time limits should be established by the controller for erasure or for a periodic review. Every reasonable step should be taken to ensure that personal data which are inaccurate are rectified or deleted. Personal data should be processed in a manner that ensures appropriate security and confidentiality of the personal data, including for preventing unauthorised access to or use of personal data and the equipment used for the processing.

Recital 65: Right to Erasure and Rectification

A data subject should have the right to have personal data concerning him or her rectified and a ‘right to be forgotten’ where the retention of such data infringes this Regulation or Union or Member State law to which the controller is subject. In particular, a data subject should have the right to have his or her personal data erased and no longer processed where the personal data are no longer necessary in relation to the purposes for which they are collected or otherwise processed, where a data subject has withdrawn his or her consent or objects to the processing of personal data concerning him or her, or where the processing of his or her personal data does not otherwise comply with this Regulation. That right is relevant in particular where the data subject has given his or her consent as a child and is not fully aware of the risks involved by the processing, and later wants to remove such personal data, especially on the internet. The data subject should be able to exercise that right notwithstanding the fact that he or she is no longer a child. However, the further retention of the personal data should be lawful where it is necessary, for exercising the right of freedom of expression and information, for compliance with a legal obligation, for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims.

Commentary

Article 16 GDPR provides the data subjects the right to rectify their personal data.^[1] The term 'rectification' can have different meanings: modification, correction, integration or updating. More generally, it can be said that the right of rectification is based on the inaccuracy or failure to update personal data relating to the data subject. In this respect, the right of rectification represents the expression of the right to personal identity and to the correct representation of the facts concerning the individual.^[2]

Right to Rectification

The accuracy and completeness of personal data is of great importance to the data subject. The stored personal data and the linking of such data usually give an overall picture of the data subject and his or her personality. Also, such data often serve as a basis for decisions of third parties in relation to the data subject. For example, the storage of incorrect creditworthiness data can lead to the non-granting of a required loan and the person concerned can thus be cut off existentially necessary services. Therefore, the processing of incorrect or incomplete data can lead to – sometimes serious – disadvantages for the data subject.^[3] The right to rectification is also applicable to data collected before the entry into force of the GDPR, since the storage of such data means that they are still being processed.^[4]

Right to Correct Inaccurate Data

The first sentence of Article 16 concerns the right to rectify inaccurate data. The GDPR does not define the concept of inaccuracy. It must therefore be interpreted autonomously under EU law. Personal data are incorrect if the facts about the data subject set out therein do not objectively correspond to reality. This occurs when there are factual errors in the representation of reality. For example, in the case of registry errors (date of birth, residence) and more generally errors relating to events that can be measured in terms of truth or falsity ("Subject A was in a certain place on a certain date").^[5] Conversely, and for the same reasons, it is not possible to obtain the correction of pure value judgments ("Subject B is smart"). However, this does not apply to value judgments based on false facts. Here, there is certainly an obligation to correct the facts on which a value judgment is based.^[6]

Right to Complete Incomplete Data

Article 16 also gives data subjects the right to have incomplete personal data completed. Fortunately, data sets are never complete. The concept of completeness is therefore to be understood in relative terms.^[7] Certain data could be considered as complete in one context of processing, while the same data could be seen as incomplete in another. This may also mean, however, that the right to rectification may not always oblige a controller to rectify personal data when the inaccuracy is not relevant for the purposes of the processing.^[8]

Example: a controller running a parcel delivery service misses some important address information so that parcels may not be delivered. The data subject has a right to have their address data completed. Only in this way can the purpose of the data processing be fulfilled. Conversely,

The right to rectification may then become a right to add missing elements instead of to correct existing data. In this respect, the act of completing some personal data can be done by providing a supplementary statement (such as the mention of the data subject's acquittal and of the discontinuation of the criminal proceedings).^[9]

Procedural aspects

Pursuant to Article 12(2) GDPR, the controller shall facilitate the data subject's exercise of the rectification.^[10] In accordance with Article 12(3) GDPR, the controller has to answer the rectification request "without undue delay and in any event within one month of receipt of the request". This deadline may be extended two months where necessary, taking into account the complexity and number of the requests. Any extension of the deadline must be communicated to the data subject, along for the reasons for it, according to Paragraph 4 of the same Article. The rectification request is not subject to a justification. The data subject does not have to have a reason for exercising it. It is neither, for example, subject to the existence of damage.^[11]

Relation to Article 18 GDPR

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

Relation to Article 19 GDPR

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

Decisions

→ You can find all related decisions in Category:Article 16 GDPR

References

↑ This right is another expression of the control that the GDPR gives data subjects over their personal data, as remarked by Recital 7 GDPR. Along with the rights to erasure, restriction, and objection, it can be considered a second-stage of the exercise of rights, in which control of personal data is effectively exerted. The first stage would be the right of access (Article 15) by which data subject can collect the necessary information about their personal data and how they are being processed. See, Kamann, Braun, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 16 GDPR, margin number 6 (Beck 2018, 2nd ed.) (accessed 17 August 2021).
↑ Belisario, in Riccio, Scorza, Belisario, GDPR e normativa privacy - Commentario, Article 16 GDPR (Wolters Kluwer 2018), p. 176.
↑ See, Meents, Hinzpeter in Taeger, Gabel, DSGVO – BDSG, Article 16 GDPR, margin number 2 (Deutscher Fachverlag, 4th edition (accessed 11 February 2022).
↑ VGH Baden-Württemberg, 3 March 2020, 1 S 397/19 (available here).
↑ For example, the right to rectification cannot be used as a means to correct data subjects’ exams answers, since according to the CJEU the assessment of whether personal data is accurate and complete must be made in the light of the purpose for which that data was collected. In such a case, the purpose is to be able to evaluate the level of knowledge and competence of that candidate at the time of the examination. That level is revealed precisely by any errors in those answers. Consequently, such errors do not represent inaccuracy. This right could be used, however, to examine whether scripts were mixed up in such a way that the answers of another candidate were ascribed to the candidate concerned, or whether some of the cover sheets containing the answers of that candidate are lost. See, CJEU, 20 December 2017, Nowak, C‑434/16, margin numbers 52-54 (available here).
↑ See, Meents, Hinzpeter in Taeger, Gabel, DSGVO – BDSG, Article 16 GDPR, margin number 8 (Deutscher Fachverlag, 4th edition (accessed 13 February 2022).
↑ Worms, in BeckOK DatenschutzR, Article 16 GDPR, margin number 58 (Beck 2020, 38th ed.) (accessed 13 February 2022).
↑ For example, the Norwegian Privacy Appeals Board has decided in a case that a controller was not obliged to rectify a single letter of a name since it does not entail danger of mis-identification and is related to differences between countries in spelling names, especially given the burden that it will impose on the controller to modify it in all their records. See, Personvernrådet, 10 November 2020, 20/01868 (PVN-2020-15) (available here).
↑ de Terwangne, Bygrave, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 16 GDPR, p. 473 (Oxford University Press 2020).
↑ This may be done, partially, by providing the possibility of making a rectification request via electronic means, as recommended by Article 15(3) GDPR and Recital 64 GDPR when dealing with access requests.
↑ Kamann, Braun, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 16 GDPR, margin number 18 (Beck 2018, 2nd ed.) (accessed 17 August 2021).

[1] This right is another expression of the control that the GDPR gives data subjects over their personal data, as remarked by Recital 7 GDPR. Along with the rights to erasure, restriction, and objection, it can be considered a second-stage of the exercise of rights, in which control of personal data is effectively exerted. The first stage would be the right of access (Article 15) by which data subject can collect the necessary information about their personal data and how they are being processed. See, Kamann, Braun, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 16 GDPR, margin number 6 (Beck 2018, 2nd ed.) (accessed 17 August 2021).

[2] Belisario, in Riccio, Scorza, Belisario, GDPR e normativa privacy - Commentario, Article 16 GDPR (Wolters Kluwer 2018), p. 176.

[3] See, Meents, Hinzpeter in Taeger, Gabel, DSGVO – BDSG, Article 16 GDPR, margin number 2 (Deutscher Fachverlag, 4th edition (accessed 11 February 2022).

[4] VGH Baden-Württemberg, 3 March 2020, 1 S 397/19 (available here).

[5] For example, the right to rectification cannot be used as a means to correct data subjects’ exams answers, since according to the CJEU the assessment of whether personal data is accurate and complete must be made in the light of the purpose for which that data was collected. In such a case, the purpose is to be able to evaluate the level of knowledge and competence of that candidate at the time of the examination. That level is revealed precisely by any errors in those answers. Consequently, such errors do not represent inaccuracy. This right could be used, however, to examine whether scripts were mixed up in such a way that the answers of another candidate were ascribed to the candidate concerned, or whether some of the cover sheets containing the answers of that candidate are lost. See, CJEU, 20 December 2017, Nowak, C‑434/16, margin numbers 52-54 (available here).

[6] See, Meents, Hinzpeter in Taeger, Gabel, DSGVO – BDSG, Article 16 GDPR, margin number 8 (Deutscher Fachverlag, 4th edition (accessed 13 February 2022).

[7] Worms, in BeckOK DatenschutzR, Article 16 GDPR, margin number 58 (Beck 2020, 38th ed.) (accessed 13 February 2022).

[8] For example, the Norwegian Privacy Appeals Board has decided in a case that a controller was not obliged to rectify a single letter of a name since it does not entail danger of mis-identification and is related to differences between countries in spelling names, especially given the burden that it will impose on the controller to modify it in all their records. See, Personvernrådet, 10 November 2020, 20/01868 (PVN-2020-15) (available here).

[9] de Terwangne, Bygrave, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 16 GDPR, p. 473 (Oxford University Press 2020).

[10] This may be done, partially, by providing the possibility of making a rectification request via electronic means, as recommended by Article 15(3) GDPR and Recital 64 GDPR when dealing with access requests.

[11] Kamann, Braun, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 16 GDPR, margin number 18 (Beck 2018, 2nd ed.) (accessed 17 August 2021).

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 ==Legal Text==
 <br /><center>'''Article 16 - Right to rectification'''</center>
 The data subject shall have the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her. Taking into account the purposes of the processing, the data subject shall have the right to have incomplete personal data completed, including by means of providing a supplementary statement.