Article 2 GDPR: Difference between revisions
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=== (1) Material Scope === | === (1) Material Scope === | ||
The Regulation applies to any processing | The Regulation applies to any processing<ref>See, Article 4(2) of the Commentary.</ref> of personal data by automated means or to the non-automated processing of personal data that is or is intended to be stored in a filing system. | ||
==== Automated means ==== | |||
The expression "automated means" is not defined in the GDPR. According to scholars, it should nonetheless be understood broadly as including all procedures in which at least part of the data processing is carried out automatically, using a given program, without further human intervention.<ref>''Bäcker,'' in Wolff, Brink, BeckOK Datenschutzrecht, Article 2 GDPR, margin number 2 (C.H. Beck 2021, 38th edition).</ref> | The expression "automated means" is not defined in the GDPR. According to scholars, it should nonetheless be understood broadly as including all procedures in which at least part of the data processing is carried out automatically, using a given program, without further human intervention.<ref>''Bäcker,'' in Wolff, Brink, BeckOK Datenschutzrecht, Article 2 GDPR, margin number 2 (C.H. Beck 2021, 38th edition).</ref> | ||
==== Wholly or Partly by Automated Means ==== | |||
The data processing must be ''fully'' or ''partially'' automated. A data processing activity is understood as partially automated when it is carried out partly manually and partly automatically. For example, this is the case when personal data is manually entered into a digital database, or if several data processing operations, some of which are carried out manually and some of which are automated, are sufficiently closely linked in a logical process.<ref>''Bäcker,'' in Wolff, Brink, BeckOK Datenschutzrecht, Article 2 GDPR, margin number 3 (C.H. Beck 2021, 38th edition).</ref> | The data processing must be ''fully'' or ''partially'' automated. A data processing activity is understood as partially automated when it is carried out partly manually and partly automatically. For example, this is the case when personal data is manually entered into a digital database, or if several data processing operations, some of which are carried out manually and some of which are automated, are sufficiently closely linked in a logical process.<ref>''Bäcker,'' in Wolff, Brink, BeckOK Datenschutzrecht, Article 2 GDPR, margin number 3 (C.H. Beck 2021, 38th edition).</ref> | ||
==== Part of a Filing System ==== | |||
Additionally, the GDPR applies to non-automated processing of personal data if the personal data forms part of a filing system, or is intended for this purpose. In other words, if the data is intended as part of a filing system, but is not processed by automated means, the collection of such data will constitute a processing operation even before it is organized into a filing system. The concept of "filing system" is defined in [[Article 4 GDPR|Article 4(6)]] GDPR and consists of any structured set of personal data which are accessible according to specific criteria. | Additionally, the GDPR applies to non-automated processing of personal data if the personal data forms part of a filing system, or is intended for this purpose. In other words, if the data is intended as part of a filing system, but is not processed by automated means, the collection of such data will constitute a processing operation even before it is organized into a filing system. The concept of "filing system" is defined in [[Article 4 GDPR|Article 4(6)]] GDPR and consists of any structured set of personal data which are accessible according to specific criteria. | ||
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In practice, there seem to be three main criteria that can help in the assessment. First, one has to assess the spatial aspect of the processing. Activities that take place in a private space can be considered “personal”. Conversely, public places are excluded from the application of the household exemption. Second, the social aspect of the processing is relevant. One needs to investigate, on the one hand, the relationship between the natural person who carries out the processing and the data subjects and, on the other, the extent of the group of subjects who have access to the personal data. Third, one has to determine the purpose pursued by the controller. According to Recital 18, these activities must have no connection with anything 'professional' or 'economic'. Consequently, if the activities pursue such purposes, the exemption will not apply. | In practice, there seem to be three main criteria that can help in the assessment. First, one has to assess the spatial aspect of the processing. Activities that take place in a private space can be considered “personal”. Conversely, public places are excluded from the application of the household exemption. Second, the social aspect of the processing is relevant. One needs to investigate, on the one hand, the relationship between the natural person who carries out the processing and the data subjects and, on the other, the extent of the group of subjects who have access to the personal data. Third, one has to determine the purpose pursued by the controller. According to Recital 18, these activities must have no connection with anything 'professional' or 'economic'. Consequently, if the activities pursue such purposes, the exemption will not apply. | ||
====== Social networks ====== | |||
Recital 18 provides some examples of exempted activities such as the holding of addresses, or social networking and online activity undertaken within the context of such activities. However, the reference to social networks as a type of activity exempted from the GDPR seems to contrast with the case law of the CJEU.<ref>Especially, CJEU, C-101/01, ''Lindqvist'', 6 November 2003, margin number 47 (available [https://curia.europa.eu/juris/document/document.jsf?text=&docid=48382&pageIndex=0&doclang=de&mode=lst&dir=&occ=first&part=1&cid=758205 here]).</ref> By applying the aforementioned criteria, scholars have convincingly argued that the number of potential recipients of personal data should be verified in order to apply the exemption. Interpreted in this way, the GDPR would not apply to processing operations concerning social network use when they involve a limited number of recipients or readers. Conversely, if the processing or message is available to an indeterminate number of people, the household exemption will not apply.<ref>''Bäcker'', in Wolff, Brink, BeckOK Datenschutzrecht, Article 2 GDPR, margin numbers 18-19 (C.H. Beck 2020, 38th edition).</ref> | Recital 18 provides some examples of exempted activities such as the holding of addresses, or social networking and online activity undertaken within the context of such activities. However, the reference to social networks as a type of activity exempted from the GDPR seems to contrast with the case law of the CJEU.<ref>Especially, CJEU, C-101/01, ''Lindqvist'', 6 November 2003, margin number 47 (available [https://curia.europa.eu/juris/document/document.jsf?text=&docid=48382&pageIndex=0&doclang=de&mode=lst&dir=&occ=first&part=1&cid=758205 here]).</ref> By applying the aforementioned criteria, scholars have convincingly argued that the number of potential recipients of personal data should be verified in order to apply the exemption. Interpreted in this way, the GDPR would not apply to processing operations concerning social network use when they involve a limited number of recipients or readers. Conversely, if the processing or message is available to an indeterminate number of people, the household exemption will not apply.<ref>''Bäcker'', in Wolff, Brink, BeckOK Datenschutzrecht, Article 2 GDPR, margin numbers 18-19 (C.H. Beck 2020, 38th edition).</ref> | ||
===== (d) Processing by Competent Authorities for the Purposes of the Prevention, Investigation, Detection or Prosecution of Criminal Offences or the Execution of Criminal penalties ===== | |||
Directive (EU) 2016/680 now regulates this area. | Directive (EU) 2016/680 now regulates this area. | ||
Revision as of 06:12, 25 April 2022
Legal Text
1. This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system.
2. This Regulation does not apply to the processing of personal data:
- (a) in the course of an activity which falls outside the scope of Union law;
- (b) by the Member States when carrying out activities which fall within the scope of Chapter 2 of Title V of the TEU;
- (c) by a natural person in the course of a purely personal or household activity;
- (d) by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.
3. For the processing of personal data by the Union institutions, bodies, offices and agencies, Regulation (EC) No 45/2001 applies. Regulation (EC) No 45/2001 and other Union legal acts applicable to such processing of personal data shall be adapted to the principles and rules of this Regulation in accordance with Article 98.
4. This Regulation shall be without prejudice to the application of Directive 2000/31/EC, in particular of the liability rules of intermediary service providers in Articles 12 to 15 of that Directive.
Relevant Recitals
Commentary
Article 2 GDPR sets out the material scope of the GDPR. Paragraph 1 clarifies that the Regulation applies to any processing of personal data by automated means or to the non-automated processing of personal data that is or is intended to be stored in a filing system. Paragraph 2 provides for exemptions that exclude the applicability of the GDPR, such as data processing relating to activities outside the scope of European law or relating to purely personal or domestic activities. Paragraph 3 confirms the validity of sector-specific data protection laws for the processing carried out by European institutions provided that these regulations are brought into compliance with the. Finally, Paragraph 4 clarifies that the rules of Directive 2000/31/EC are not affected by the provisions of the GDPR.
(1) Material Scope
The Regulation applies to any processing[1] of personal data by automated means or to the non-automated processing of personal data that is or is intended to be stored in a filing system.
Automated means
The expression "automated means" is not defined in the GDPR. According to scholars, it should nonetheless be understood broadly as including all procedures in which at least part of the data processing is carried out automatically, using a given program, without further human intervention.[2]
Wholly or Partly by Automated Means
The data processing must be fully or partially automated. A data processing activity is understood as partially automated when it is carried out partly manually and partly automatically. For example, this is the case when personal data is manually entered into a digital database, or if several data processing operations, some of which are carried out manually and some of which are automated, are sufficiently closely linked in a logical process.[3]
Part of a Filing System
Additionally, the GDPR applies to non-automated processing of personal data if the personal data forms part of a filing system, or is intended for this purpose. In other words, if the data is intended as part of a filing system, but is not processed by automated means, the collection of such data will constitute a processing operation even before it is organized into a filing system. The concept of "filing system" is defined in Article 4(6) GDPR and consists of any structured set of personal data which are accessible according to specific criteria.
The concept of a ‘filing system’ under the Directive 95/46/EC has been considered by the CJEU in Jehovah todistajat. In this case the Court had to assess the legality of the Finnish Data Protection Authority prohibiting the Jehovah’s Witness Community from collecting or processing personal data in the course of their door-to-door preaching without adhering to the applicable data protection law.[4] The processing of the personal data was carried out otherwise than by automatic means, so the question arose as to whether the data processed formed part of or was intended to form part of a filing system. The Court accepted a broad definition of filing system by pointing out that the Directive (as the GDPR now)[5] does not put down any specific requirement in term of its structure or form.[6] The Court concluded that the definition of “filing system” is fulfilled when “data are structured according to specific criteria which, in practice, enable them to be easily retrieved for subsequent use. In order for such a set of data to fall within that concept, it is not necessary that they include data sheets, specific lists or other search methods”.[7]
As the material scope of the GDPR concerns the processing of personal data, it does not regulate anonymised data. The question of whether data is “personal” or “anonymous” is a technical and factual one. However, there is a very high threshold for data to be considered anonymous, as the probability of re-identification is normally considered high. Finally, pseudonymised data falls under the scope of the GDPR.
(2) Exemptions
If the elements in Article 2(1) are fulfilled, the GDPR applies unless the processing falls under one of the exemptions named in Article 2(2)(a)-(d) GDPR.
(a) Activities which Fall Outside the Scope of Union Law
The first category of exemptions relates to processing for activities "which [fall] outside the scope of Union law".[8] This wording is not particularly helpful because it is not always clear what the "scope of Union law" is. However, possible problems of interpretation have a limited impact. One of the main competences of the European Union is to establish an internal market in which, among other things, the free flow of data is guaranteed. It follows that all data processing activities directly or indirectly related to this purpose are covered under Union law (and therefore excluded from this exemption). As such, processing activities carried out by individuals and companies will almost always be regulated by Union law (insofar as they are useful or instrumental to the internal market) and therefore by the GDPR. Under Article 4(2) TFEU “national security remains the sole responsibility of the individual Member States”. Thus, all activities related to national security, such as data processing by intelligence services, are excluded from the scope of EU law. Recital 16 confirms this interpretation and adds that the following are also excluded from the scope of the Regulation “the processing of personal data by the Member States when carrying out activities in relation to the common foreign and security policy of the Union” (see subsection (b) below).
(b) EU Common Foreign and Security Policy
Article 2(2)(b) excludes the applicability of the GDPR for the processing of personal data carried out by the Member States when performing activities as part of the Union’s common foreign and security policy (see Chapter 2 of Title V of the TEU). More precisely, according to Article 39 TEU, the Council shall adopt a decision laying down the rules relating to the protection of individuals with regard to the processing of personal data by the Member States when carrying out such activities. These rules have not yet been adopted. However, it is worth recalling that despite Article 2 the GDPR being inapplicable in the above circumstances, Articles 7 (protection of family life) and 8 (data protection) of the EU Charter of Fundamental Rights remain applicable.[9]
(c) Processing by a Natural Person in the Course of Purely Personal or Household Activity
Article 2(2)(c) GDPR reaffirms the so-called “household exemption” which existed under Directive EC/95/46. According to this provision, the GDPR does not apply where processing is carried out by a natural person for purely personal or household activities.
Natural person
In order for the exemption to apply, it is essential that the processing be performed by a “natural person”. Thus, processing by legal entities, whatever legal form they may have (including NGOs), is not covered by the exemption and remains subject to the GDPR.[10]
Purely Personal or Household Activities
The GDPR does not provide a specific definition of “personal” and “household” activities. However, different factors to distinguish the “private” from the “non-private” can be drawn out from the existing case-law.
According to the Jehovah’s Witness case, these requirements must be interpreted as covering only activities that are carried out in the context of the private or family life of individuals. In that connection, “an activity cannot be regarded as being purely personal or domestic where its purpose is to make the data collected accessible to an unrestricted number of people or where that activity extends, even partially, to a public space and is accordingly directed outwards from the private setting of the person processing the data in that manner”.[11] According to Lindqvist in particular, the publication of personal data on a blogging site made available to an unlimited number of people would 'obviously' not be subject to the household exemption.[12] This interpretation was confirmed by the Court in Ryneš, where it took a narrow view of the exemption. Indeed, a camera system installed on a family home for the purposes of protecting the property was not considered to fall under the exemption insofar as it also recorded a public space.[13]
In practice, there seem to be three main criteria that can help in the assessment. First, one has to assess the spatial aspect of the processing. Activities that take place in a private space can be considered “personal”. Conversely, public places are excluded from the application of the household exemption. Second, the social aspect of the processing is relevant. One needs to investigate, on the one hand, the relationship between the natural person who carries out the processing and the data subjects and, on the other, the extent of the group of subjects who have access to the personal data. Third, one has to determine the purpose pursued by the controller. According to Recital 18, these activities must have no connection with anything 'professional' or 'economic'. Consequently, if the activities pursue such purposes, the exemption will not apply.
Social networks
Recital 18 provides some examples of exempted activities such as the holding of addresses, or social networking and online activity undertaken within the context of such activities. However, the reference to social networks as a type of activity exempted from the GDPR seems to contrast with the case law of the CJEU.[14] By applying the aforementioned criteria, scholars have convincingly argued that the number of potential recipients of personal data should be verified in order to apply the exemption. Interpreted in this way, the GDPR would not apply to processing operations concerning social network use when they involve a limited number of recipients or readers. Conversely, if the processing or message is available to an indeterminate number of people, the household exemption will not apply.[15]
(d) Processing by Competent Authorities for the Purposes of the Prevention, Investigation, Detection or Prosecution of Criminal Offences or the Execution of Criminal penalties
Directive (EU) 2016/680 now regulates this area.
(3) Union Institutions
Where data is processed by EU institutions, bodies, offices and agencies, Regulation (EC) No 45/2001 applies. The Regulation (EU) 2018/1725 of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data (“EUDPR”) revises Regulation (EC) No. 45/2001 to align it with the GDPR. Chapter IX of the EUDPR outlines general rules on data protection applicable to EU law enforcement activities within the scope of Chapter 2 of Title V of the TFEU.
(4) Directive 2000/31/EC
The GDPR applies without prejudice to the application of Directive 2000/31/EC (‘the e-Commerce Directive’). Specific reference is made to Articles 12 to 15 e-Commerce Directive, which concern the liability of intermediary service providers ("ISP") in situations where they merely transmit information, ‘cache’ information, or merely store information.
[S1]Can be expanded
Decisions
→ You can find all related decisions in Category:Article 2 GDPR
References
- ↑ See, Article 4(2) of the Commentary.
- ↑ Bäcker, in Wolff, Brink, BeckOK Datenschutzrecht, Article 2 GDPR, margin number 2 (C.H. Beck 2021, 38th edition).
- ↑ Bäcker, in Wolff, Brink, BeckOK Datenschutzrecht, Article 2 GDPR, margin number 3 (C.H. Beck 2021, 38th edition).
- ↑ CJEU, Case C-25/17, Jehovan todistajat, 10 July 2018, (available here).
- ↑ The GDPR definition restates the Article 2(c) Directive 95/46/EC definition of the notion verbatim. Tosoni, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 4(6) GDPR, p. 140 (Oxford University Press 2020).
- ↑ In particular, the Directive did not foresee that the “the personal data at issue must be contained in data sheets or specific lists or in another search method, in order to establish the existence of a filing system”. In that case, the records created by the Jehovah’s Community were collected as a memory aid and included name, surname and geographical position in order to facilitate the organisation’s subsequent visits.
- ↑ CJEU, Case C-25/17, Jehovan todistajat, 10 July 2018, margin number 62 (available here). Also see Opinion of Advocate General Kokott, 8 May 2008, Sautmedia, C‑73/07, margin number 34 (available here); Opinion of Advocate General Sharpston, 15 October 2009, Commission v Bavarian Lager, C-28/08 P, margin numbers 117-128 (available here); Opinion of Advocate General Kokott, 20 July 2017, Nowak, C-434/16, margin number 69 (available here); Opinion of Advocate General Mengozzi, 1 February 2018, Jehovan todistajat, C-25/17, margin numbers 53-59 (available here).
- ↑ The competences of the Union are set out in the EU treaties. In particular, Title 1 of the TFEU sets out the exclusive competence of the Union. While the competences of the EU are carefully shared between Member States and the EU, the GDPR simply differentiates between non-Union law and Union law.
- ↑ Bäcker, in Wolff, Brink, BeckOK Datenschutzrecht, Article 2 GDPR, margin number 11 (C.H. Beck 2020, 38th edition).
- ↑ Paal, in Paal, Pauly, DS-GVO BDSG, Article 2 GDPR, margin number 14 (C.H. Beck 2021, 3rd edition).
- ↑ CJEU, Case C-25/17, Jehovan todistajat, 10 July 2018, margin number 42 (available here).; in the same direction CJEU, Case C-73/07, Satakunnan Markkinapörssi and Satamedia, 16 December 2008, margin number 44 (available here).
- ↑ CJEU, C-101/01, Lindqvist, 6 November 2003, margin number 47 (available here).
- ↑ CJEU, Case C-212/13, Ryneš, margin numbers 31 and 33 (available here).
- ↑ Especially, CJEU, C-101/01, Lindqvist, 6 November 2003, margin number 47 (available here).
- ↑ Bäcker, in Wolff, Brink, BeckOK Datenschutzrecht, Article 2 GDPR, margin numbers 18-19 (C.H. Beck 2020, 38th edition).
