Article 18 GDPR: Difference between revisions
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==Commentary== | ==Commentary== | ||
The right to restriction of processing was introduced in 2016 by the GDPR | The right to restriction of processing was introduced in 2016 by the GDPR although a somewhat similar protection could already be found in Article 12(2) of Directive 95/46 (DPD). That provision gave data subjects the possibility to request the ''“blocking of data”'' where the processing was unlawful. However, the DPD did not specify the meaning of 'blocking' or what it would actually require from the controller.<ref>''Gonzáles Fuster'', in Kuner, Bygrave and Docksey, The EU General Data Protection Regulation (GDPR), A commentary, Article 18 GDPR, p. 487 (Oxford University Press, 2020).</ref> The lack of clarity of that provision prompted the Commission to replace any reference to the 'blocking' of personal by a new and more specific right under the GDPR. | ||
The right to restriction of processing allows data subjects to temporarily limit the type of processing operations that a controller can perform on their personal data. More specifically, when a data subject exercises the right to restriction of processing, the controller is only allowed to passively store the personal data, but can no longer share | The right to restriction of processing allows data subjects to temporarily limit the type of processing operations that a controller can perform on their personal data. More specifically, when a data subject exercises the right to restriction of processing, the controller is only allowed to passively store the personal data, but can no longer share, disclose, erase, or perform any other type of processing operation on them, unless a specific exception applies (e.g. consent of the data subject). The right to restriction of processing only applies during a limited period (the ''“restriction period”''), at the end of which the controller is no longer bound to limit the processing operation to the storage of data. The length of this restriction period will vary from one case to another, as further explained below. | ||
The four legal grounds on the basis of which data subjects may exercise their right to restriction of processing will be discussed here below, following which the limited exceptions to this right will be | The four legal grounds on the basis of which data subjects may exercise their right to restriction of processing will be discussed here below, following which the limited exceptions to this right will be analysed. | ||
===(1) Legal Grounds=== | ===(1) Legal Grounds=== | ||
The right to restriction of processing can be invoked in four different situations | The right to restriction of processing can be invoked by the data subjects in four different situations: accuracy of personal data, unlawful processing, legal claims and objection to processing under Article 21 GDPR. Each of these situations is characterised by the existence of an ongoing claim or objection relating to the processing of the personal data. For example, when the accuracy of the personal data is contested under Article 16 GDPR. In that case, Article 18 GDPR offers data subjects the possibility to temporarily require controllers to restrict the processing of their inaccurate personal data, pending its rectification. This mitigates immediate risks caused by the continuous processing of inaccurate personal data. | ||
According to Recital 67, methods | According to Recital 67 GDPR, methods to restrict the processing of personal data include temporarily moving the selected data to another processing system, making the selected personal data unavailable to users, or temporarily removing published data from a website. In automated filing systems, the restriction of processing should be ensured by technical means in such a manner that the personal data are not subject to further processing operations and cannot be changed. In particular, the fact that the processing of personal data is restricted should clearly be indicated in the system.<ref>In case of automated processing, marking the data records as "blocked" is sufficient if the software accessing the marked data sets is able to recognise that only permitted processing operations under Article 18(2) are possible. See, ''Herbst'', in Kühling, Buchner, DS-GVO BDSG, Article 18 GDPR, margin number 30 (C.H. Beck 2020, 3rd Edition).</ref> | ||
The right to restriction of processing can be effectively exercised by data subjects when one of the following grounds applies: | The right to restriction of processing can be effectively exercised by data subjects when one of the following grounds applies: | ||
====(a) Accuracy of Personal Data==== | ====(a) Accuracy of Personal Data==== | ||
Data subjects can exercise their right to restriction of the processing when it appears that their personal data are inaccurate and must be rectified. | Data subjects can exercise their right to restriction of the processing when it appears that their personal data are inaccurate and must be rectified. Indeed, data subjects have a right to rectification of their personal data under [[Article 16 GDPR]]. However, the rectification of personal data may take a variable period of time depending on the nature and amount of data, the diligence of the controller, etc. While awaiting the rectification of their personal data, data subjects may want to protect themselves from any adverse effect linked to the processing of their inaccurate data by restricting the type of operations that the controller can still perform on them. In that context, the right to restriction of processing can apply upon request of the data subject for the limited period of time during which a controller is verifying the accuracy and/or rectifying the personal data. | ||
Thus, the right to restriction of processing may be exercised after or in parallel to the right to rectification. For example, if a data subject notices that a controller is processing inaccurate personal data and that this may have an adverse effect on them (e.g. inaccurate bank account details which may lead to wrongful money transfers), they may simultaneously invoke [[Article 16 GDPR]] (right to rectification) and Article 18 GDPR (right to restriction) in order to request the controller to suspend the processing the personal data until the data has been corrected. | |||
====(b) Unlawful Processing==== | ====(b) Unlawful Processing==== | ||
The right to restriction can also be exercised when it appears that a controller is processing personal data unlawfully, but the data subject | The right to restriction can also be exercised when it appears that a controller is processing personal data unlawfully, but the data subject requests restriction of the processing instead of the erasure of the personal data under Article 17 GDPR.The data subject does not have to justify this choice.<ref>''Dix,'' in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 17 GDPR, margin number 6 (C.H. Beck 2019). Along the same line, ''Herbst'', in Kühling, Buchner, DS-GVO BDSG, Article 18 GDPR, margin number 18 (C.H. Beck 2020, 3rd Edition).</ref> In such a case, the purpose of exercising the right conferred by Article 18 GDPR is to interrupt the unlawful processing operation whilst also preventing the data controller from erasing the personal data. The data subjects may want to oppose the erasure of their personal data for different reasons, including the fact that they still need (a copy) for their personal use.<ref>It might also be the case that the personal data constitute important evidence of the unlawful processing itself (e.g. health data which were collected without the consent of the data subject).</ref> The exercise of the right of restriction should automatically exclude any other processing of the data. However, it has been suggested that specifying the intention to exclude deletion could avoid any kind of misunderstanding with the controller.<ref>''Herbst'', in Kühling, Buchner, DS-GVO BDSG, Article 18 GDPR, margin number 16 (C.H. Beck 2020, 3rd Edition).</ref> | ||
Theoretically, data subjects could | Theoretically, data subjects could also prevent a controller from erasing their data by invoking [[Article 21 GDPR]].<ref>It must be recalled that, in accordance with Article 4(1) GDPR, deletion of personal data is a processing operation as such. By exercising their right to restriction of the processing, data subjects are therefore automatically putting controllers under the obligation ''not to'' erase their data, pending clarification of the unlawful nature of the processing.</ref> One may then question the relevance or added value of the right to restriction of the processing in the context of unlawful processing. However, it quickly becomes apparent from a careful reading of Article 21 GDPR that the right to object can only be exercised where the controller is processing personal data either on the basis of (i) its legitimate interest ([[Article 6 GDPR|Article 6(1)(f) GDPR]]) or (ii) the public interest ([[Article 6 GDPR|Article 6(1)(e) GDPR]]). Hence, data subjects may find themselves in a situation where the right to object does not apply, but the right to restriction of processing does. For example, if a controller is processing personal data for the performance of a contract under [[Article 6 GDPR|Article 6(1)(b) GDPR]], data subjects cannot object to the erasure of their data on the basis of Article 21 GDPR.<ref>They may, however, exercise the right to restriction of processing in order to request the controller ''not to erase'' personal data, while addressing the potential unlawful character of such processing.</ref> | ||
====(c) Legal Claims==== | ====(c) Legal Claims==== | ||
The third legal basis for exercising the right to restriction of processing concerns situations where the controller no longer needs the personal data, but the data subject might still want them for the establishment, exercise or defence of a legal claim. Once again, the right to restriction therefore offers the possibility for data subjects to prevent the erasure of their personal data by the controller. In this case, the data controller has to retain the personal data even though it might not need them anymore, in order to | The third legal basis for exercising the right to restriction of processing concerns situations where the controller no longer needs the personal data, but the data subject might still want them for the establishment, exercise or defence of a legal claim. Once again, the right to restriction therefore offers the possibility for data subjects to prevent the erasure of their personal data by the controller. In this case, the data controller has to retain the personal data even though it might not need them anymore, in order to safeguard the data subject's legitimate interests, and in particular the right of a data subject to gather information to establish, exercise or defend themselves in the context of an ongoing or otherwise imminent legal claim.<ref>''Herbst'', in Kühling, Buchner, DS-GVO BDSG, Article 18 GDPR, margin numbers 22-23 (C.H. Beck 2020, 3rd Edition).</ref> The restriction period should normally last until the data subject has been able to retrieve a copy of the relevant data, or until the legal claims are established, exercised or defended. | ||
<u>Example</u>: following the end of a work relationship, a data subject exercise their right to restriction of processing in order to prevent his prior employer from erasing personal data that are needed for his defence in the context of an action relating to unpaid wages or abusive dismissal. | <u>Example</u>: following the end of a work relationship, a data subject exercise their right to restriction of processing in order to prevent his prior employer from erasing personal data that are needed for his defence in the context of an action relating to unpaid wages or abusive dismissal. | ||
====(d) Objection to Processing==== | ====(d) Objection to Processing==== | ||
The fourth and last legal basis concerns situations where a data subject has objected to the processing of personal data on the basis of [[Article 21 GDPR]], because the latter considers that the legitimate interests of the data controller in processing their personal data do not prevail over their interests, rights or freedoms. In parallel to exercising this right to object to the processing under [[Article 21 GDPR]], the data subject can also rely on Article 18 GDPR to force the controller to limit the processing of personal data to passive storage, pending a final decision on the underlying objection. | The fourth and last legal basis concerns situations where a data subject has objected to the processing of personal data on the basis of [[Article 21 GDPR]], because the latter considers that the legitimate interests of the data controller in processing their personal data do not prevail over their interests, rights or freedoms. In parallel to exercising this right to object to the processing under [[Article 21 GDPR]], the data subject can also rely on Article 18 GDPR to force the controller to limit the processing of personal data to passive storage, pending a final decision on the underlying objection. | ||
To fully understand the relevance of this legal ground, it is first important to recall that the right to object as enshrined in [[Article 21 GDPR]] is not always absolute. As a matter of fact, data subjects may only object to the processing of their personal data in a limited number of situations, for example when the legal basis for such processing is a 'legitimate interest' invoked by the controller. | To fully understand the relevance of this legal ground, it is first important to recall that the right to object as enshrined in [[Article 21 GDPR]] is not always absolute. As a matter of fact, data subjects may only object to the processing of their personal data in a limited number of situations, for example when the legal basis for such processing is a 'legitimate interest' invoked by the controller. | ||
Example: an insurance company could decide to monitor and collect information about insured persons who are suspected of insurance fraud based on the company's legitimate interests. However, it must be ensured that the interests or fundamental rights and freedoms of the data subjects do not prevail over the legitimate interest invoked by the controller. | |||
This balancing exercise, which is incumbent on the controller, may nonetheless lead to discrepancies in opinion. If a dispute ensues, it will ultimately be for the competent data protection authority or national court to determine whether the objection was justified. However, this may take a more or less long period of time during which the data subjects may suffer harm.<span lang="EN-GB">The right to restriction of processing was | |||
introduced in 2016 by the GDPR although a somewhat similar protection could | |||
already be found in Article 12(2) of Directive 95/46 (DPD). That provision gave | |||
data subjects the possibility to request the ''“blocking of data”'' where the processing was unlawful. However, the | |||
DPD did not specify the meaning of 'blocking' or what it would actually require | |||
from the controller.</span><ref>''Herbst'', in Kühling, Buchner, DS-GVO BDSG, Article 18 GDPR, margin numbers 49-50 (C.H. Beck 2020, 3rd Edition).</ref> Hence, Article 18 GDPR may prove to be particularity useful in those instances since it confers data subjects the right to request the controller to also temporarily restrict the processing of their personal data, pending a final decision. | |||
===(2) Exceptions=== | ===(2) Exceptions=== | ||
Once activated, Article 18 GDPR | Once activated, Article 18 GDPR places a dual obligation on the controller during the restriction period: (i) the obligation to ''store'' the personal data; and (ii) the obligation ''not to'' perform any other operation on the "''restricted''" data. The obligation ''not to'' process the personal data in any other way than storage may nevertheless be tempered if either of the following exceptions apply. | ||
====Consent==== | ====Consent==== | ||
A controller subject to a restriction request may still perform other processing operations than storage when this has been specifically allowed by the data subject. | A controller subject to a restriction request may still perform other processing operations than storage when this has been specifically allowed by the data subject. Indeed, data subjects can consent to the processing of their personal data beyond passive storage after having exercised their right under Article 18 GDPR. | ||
Example: a data subject invokes Article 18 GDPR upon closing a bank account, in order to ensure that the bank does not delete important financial information relating to money transfers made in the last two preceding years. However, the data subject may in parallel consent to the bank deleting data which are older than two years. | |||
====Legal Claims ==== | ====Legal Claims ==== | ||
A controller may reject a restriction request if processing is required for the | A controller may reject a restriction request if processing is required for the establishment, exercise or defence of legal claims. This exception may of course become problematic when unduly or excessively relied on by controllers. By invoking it, controllers can indeed easily defeat the very purpose of the right to restriction of processing, which was to provide data subjects with an easy and quick way to alleviate the immediate risks pertaining to the processing of personal data. However, a controller may incur a fine if it wrongfully relies on that exception, in accordance with [[Article 83 GDPR|Article 83(5) GDPR]]. | ||
====Protection of Others' Rights==== | ====Protection of Others' Rights==== | ||
A controller subject to a restriction request may decide to partly or fully reject that request, and therefore to continue processing the personal data of the data subject beyond passive storage when this would be necessary | A controller subject to a restriction request may decide to partly or fully reject that request, and therefore to continue processing the personal data of the data subject beyond passive storage, when this would be necessary for the protection of the rights of another natural or legal person. This exception may of course become problematic when unduly or excessively relied on by controllers, as already explained above. However, a controller may incur a fine if it wrongfully relies on that exception, in accordance with [[Article 83 GDPR|Article 83(5) GDPR]]. | ||
====Important Public Interest==== | ====Important Public Interest==== | ||
A controller subject to a restriction request may decide to partly or fully reject | A controller subject to a restriction request may decide to partly or fully reject it, and therefore to continue processing the personal data beyond passive storage when this would be necessary for reasons of important public interest of the EU or of a Member State. This exception may of course become problematic when unduly or excessively relied on by controllers. In particular, in contrast to Article 23(1)(e) GDPR, which sets out strict requirements for the Union or Member State's law restricting GDPR rights, Article 18(2) GDPR does not make any reference to the law and merely refers to the public interest. This makes it all the more important to have a restrictive interpretation of the provision, which results in a directly applicable limitation of the data subject's right to data protection.<ref>''Dix,'' in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 17 GDPR, margin number 13 (C.H. Beck 2019).</ref> However, a controller may incur a fine if it wrongfully relies on that exception, in accordance with [[Article 83 GDPR|Article 83(5) GDPR]]. | ||
===(3) Information to the Data Subject=== | ===(3) Information to the Data Subject=== | ||
The third paragraph of Article 18 GDPR specifies that a data subject who has obtained restriction of processing must be informed by the controller before the restriction of processing is lifted. This provides the data subject with the possibility to argue that the restriction period is not over yet, for example if the latter considers that the underlying request, claim or objection has not been properly addressed or solved. | |||
Furthermore, granting restriction of processing imposes on the controller the obligation to notify any recipients to whom the personal data have been disclosed about the restriction, so that they can themselves adapt the processing of personal data to what is allowed and required.<ref>''Herbst'', in Kühling, Buchner, DS-GVO BDSG, Article 18 GDPR, margin | Furthermore, granting restriction of processing imposes on the controller the obligation to notify any recipients to whom the personal data have been disclosed about the restriction, so that they can themselves adapt the processing of personal data to what is allowed and required.<ref>''Herbst'', in Kühling, Buchner, DS-GVO BDSG, Article 18 GDPR, margin number 43 (C.H. Beck 2020, 3rd Edition).</ref> See also [[Article 19 GDPR]]. | ||
==Decisions== | ==Decisions== | ||
Revision as of 13:25, 25 April 2022
Legal Text
1. The data subject shall have the right to obtain from the controller restriction of processing where one of the following applies:
- (a) the accuracy of the personal data is contested by the data subject, for a period enabling the controller to verify the accuracy of the personal data;
- (b) the processing is unlawful and the data subject opposes the erasure of the personal data and requests the restriction of their use instead;
- (c) the controller no longer needs the personal data for the purposes of the processing, but they are required by the data subject for the establishment, exercise or defence of legal claims;
- (d) the data subject has objected to processing pursuant to Article 21(1) pending the verification whether the legitimate grounds of the controller override those of the data subject.
2. Where processing has been restricted under paragraph 1, such personal data shall, with the exception of storage, only be processed with the data subject's consent or for the establishment, exercise or defence of legal claims or for the protection of the rights of another natural or legal person or for reasons of important public interest of the Union or of a Member State.
3. A data subject who has obtained restriction of processing pursuant to paragraph 1 shall be informed by the controller before the restriction of processing is lifted.
Relevant Recitals
Commentary
The right to restriction of processing was introduced in 2016 by the GDPR although a somewhat similar protection could already be found in Article 12(2) of Directive 95/46 (DPD). That provision gave data subjects the possibility to request the “blocking of data” where the processing was unlawful. However, the DPD did not specify the meaning of 'blocking' or what it would actually require from the controller.[1] The lack of clarity of that provision prompted the Commission to replace any reference to the 'blocking' of personal by a new and more specific right under the GDPR.
The right to restriction of processing allows data subjects to temporarily limit the type of processing operations that a controller can perform on their personal data. More specifically, when a data subject exercises the right to restriction of processing, the controller is only allowed to passively store the personal data, but can no longer share, disclose, erase, or perform any other type of processing operation on them, unless a specific exception applies (e.g. consent of the data subject). The right to restriction of processing only applies during a limited period (the “restriction period”), at the end of which the controller is no longer bound to limit the processing operation to the storage of data. The length of this restriction period will vary from one case to another, as further explained below.
The four legal grounds on the basis of which data subjects may exercise their right to restriction of processing will be discussed here below, following which the limited exceptions to this right will be analysed.
(1) Legal Grounds
The right to restriction of processing can be invoked by the data subjects in four different situations: accuracy of personal data, unlawful processing, legal claims and objection to processing under Article 21 GDPR. Each of these situations is characterised by the existence of an ongoing claim or objection relating to the processing of the personal data. For example, when the accuracy of the personal data is contested under Article 16 GDPR. In that case, Article 18 GDPR offers data subjects the possibility to temporarily require controllers to restrict the processing of their inaccurate personal data, pending its rectification. This mitigates immediate risks caused by the continuous processing of inaccurate personal data.
According to Recital 67 GDPR, methods to restrict the processing of personal data include temporarily moving the selected data to another processing system, making the selected personal data unavailable to users, or temporarily removing published data from a website. In automated filing systems, the restriction of processing should be ensured by technical means in such a manner that the personal data are not subject to further processing operations and cannot be changed. In particular, the fact that the processing of personal data is restricted should clearly be indicated in the system.[2]
The right to restriction of processing can be effectively exercised by data subjects when one of the following grounds applies:
(a) Accuracy of Personal Data
Data subjects can exercise their right to restriction of the processing when it appears that their personal data are inaccurate and must be rectified. Indeed, data subjects have a right to rectification of their personal data under Article 16 GDPR. However, the rectification of personal data may take a variable period of time depending on the nature and amount of data, the diligence of the controller, etc. While awaiting the rectification of their personal data, data subjects may want to protect themselves from any adverse effect linked to the processing of their inaccurate data by restricting the type of operations that the controller can still perform on them. In that context, the right to restriction of processing can apply upon request of the data subject for the limited period of time during which a controller is verifying the accuracy and/or rectifying the personal data.
Thus, the right to restriction of processing may be exercised after or in parallel to the right to rectification. For example, if a data subject notices that a controller is processing inaccurate personal data and that this may have an adverse effect on them (e.g. inaccurate bank account details which may lead to wrongful money transfers), they may simultaneously invoke Article 16 GDPR (right to rectification) and Article 18 GDPR (right to restriction) in order to request the controller to suspend the processing the personal data until the data has been corrected.
(b) Unlawful Processing
The right to restriction can also be exercised when it appears that a controller is processing personal data unlawfully, but the data subject requests restriction of the processing instead of the erasure of the personal data under Article 17 GDPR.The data subject does not have to justify this choice.[3] In such a case, the purpose of exercising the right conferred by Article 18 GDPR is to interrupt the unlawful processing operation whilst also preventing the data controller from erasing the personal data. The data subjects may want to oppose the erasure of their personal data for different reasons, including the fact that they still need (a copy) for their personal use.[4] The exercise of the right of restriction should automatically exclude any other processing of the data. However, it has been suggested that specifying the intention to exclude deletion could avoid any kind of misunderstanding with the controller.[5]
Theoretically, data subjects could also prevent a controller from erasing their data by invoking Article 21 GDPR.[6] One may then question the relevance or added value of the right to restriction of the processing in the context of unlawful processing. However, it quickly becomes apparent from a careful reading of Article 21 GDPR that the right to object can only be exercised where the controller is processing personal data either on the basis of (i) its legitimate interest (Article 6(1)(f) GDPR) or (ii) the public interest (Article 6(1)(e) GDPR). Hence, data subjects may find themselves in a situation where the right to object does not apply, but the right to restriction of processing does. For example, if a controller is processing personal data for the performance of a contract under Article 6(1)(b) GDPR, data subjects cannot object to the erasure of their data on the basis of Article 21 GDPR.[7]
(c) Legal Claims
The third legal basis for exercising the right to restriction of processing concerns situations where the controller no longer needs the personal data, but the data subject might still want them for the establishment, exercise or defence of a legal claim. Once again, the right to restriction therefore offers the possibility for data subjects to prevent the erasure of their personal data by the controller. In this case, the data controller has to retain the personal data even though it might not need them anymore, in order to safeguard the data subject's legitimate interests, and in particular the right of a data subject to gather information to establish, exercise or defend themselves in the context of an ongoing or otherwise imminent legal claim.[8] The restriction period should normally last until the data subject has been able to retrieve a copy of the relevant data, or until the legal claims are established, exercised or defended.
Example: following the end of a work relationship, a data subject exercise their right to restriction of processing in order to prevent his prior employer from erasing personal data that are needed for his defence in the context of an action relating to unpaid wages or abusive dismissal.
(d) Objection to Processing
The fourth and last legal basis concerns situations where a data subject has objected to the processing of personal data on the basis of Article 21 GDPR, because the latter considers that the legitimate interests of the data controller in processing their personal data do not prevail over their interests, rights or freedoms. In parallel to exercising this right to object to the processing under Article 21 GDPR, the data subject can also rely on Article 18 GDPR to force the controller to limit the processing of personal data to passive storage, pending a final decision on the underlying objection.
To fully understand the relevance of this legal ground, it is first important to recall that the right to object as enshrined in Article 21 GDPR is not always absolute. As a matter of fact, data subjects may only object to the processing of their personal data in a limited number of situations, for example when the legal basis for such processing is a 'legitimate interest' invoked by the controller.
Example: an insurance company could decide to monitor and collect information about insured persons who are suspected of insurance fraud based on the company's legitimate interests. However, it must be ensured that the interests or fundamental rights and freedoms of the data subjects do not prevail over the legitimate interest invoked by the controller.
This balancing exercise, which is incumbent on the controller, may nonetheless lead to discrepancies in opinion. If a dispute ensues, it will ultimately be for the competent data protection authority or national court to determine whether the objection was justified. However, this may take a more or less long period of time during which the data subjects may suffer harm.The right to restriction of processing was introduced in 2016 by the GDPR although a somewhat similar protection could already be found in Article 12(2) of Directive 95/46 (DPD). That provision gave data subjects the possibility to request the “blocking of data” where the processing was unlawful. However, the DPD did not specify the meaning of 'blocking' or what it would actually require from the controller.[9] Hence, Article 18 GDPR may prove to be particularity useful in those instances since it confers data subjects the right to request the controller to also temporarily restrict the processing of their personal data, pending a final decision.
(2) Exceptions
Once activated, Article 18 GDPR places a dual obligation on the controller during the restriction period: (i) the obligation to store the personal data; and (ii) the obligation not to perform any other operation on the "restricted" data. The obligation not to process the personal data in any other way than storage may nevertheless be tempered if either of the following exceptions apply.
Consent
A controller subject to a restriction request may still perform other processing operations than storage when this has been specifically allowed by the data subject. Indeed, data subjects can consent to the processing of their personal data beyond passive storage after having exercised their right under Article 18 GDPR.
Example: a data subject invokes Article 18 GDPR upon closing a bank account, in order to ensure that the bank does not delete important financial information relating to money transfers made in the last two preceding years. However, the data subject may in parallel consent to the bank deleting data which are older than two years.
Legal Claims
A controller may reject a restriction request if processing is required for the establishment, exercise or defence of legal claims. This exception may of course become problematic when unduly or excessively relied on by controllers. By invoking it, controllers can indeed easily defeat the very purpose of the right to restriction of processing, which was to provide data subjects with an easy and quick way to alleviate the immediate risks pertaining to the processing of personal data. However, a controller may incur a fine if it wrongfully relies on that exception, in accordance with Article 83(5) GDPR.
Protection of Others' Rights
A controller subject to a restriction request may decide to partly or fully reject that request, and therefore to continue processing the personal data of the data subject beyond passive storage, when this would be necessary for the protection of the rights of another natural or legal person. This exception may of course become problematic when unduly or excessively relied on by controllers, as already explained above. However, a controller may incur a fine if it wrongfully relies on that exception, in accordance with Article 83(5) GDPR.
Important Public Interest
A controller subject to a restriction request may decide to partly or fully reject it, and therefore to continue processing the personal data beyond passive storage when this would be necessary for reasons of important public interest of the EU or of a Member State. This exception may of course become problematic when unduly or excessively relied on by controllers. In particular, in contrast to Article 23(1)(e) GDPR, which sets out strict requirements for the Union or Member State's law restricting GDPR rights, Article 18(2) GDPR does not make any reference to the law and merely refers to the public interest. This makes it all the more important to have a restrictive interpretation of the provision, which results in a directly applicable limitation of the data subject's right to data protection.[10] However, a controller may incur a fine if it wrongfully relies on that exception, in accordance with Article 83(5) GDPR.
(3) Information to the Data Subject
The third paragraph of Article 18 GDPR specifies that a data subject who has obtained restriction of processing must be informed by the controller before the restriction of processing is lifted. This provides the data subject with the possibility to argue that the restriction period is not over yet, for example if the latter considers that the underlying request, claim or objection has not been properly addressed or solved.
Furthermore, granting restriction of processing imposes on the controller the obligation to notify any recipients to whom the personal data have been disclosed about the restriction, so that they can themselves adapt the processing of personal data to what is allowed and required.[11] See also Article 19 GDPR.
Decisions
→ You can find all related decisions in Category:Article 18 GDPR
References
- ↑ Gonzáles Fuster, in Kuner, Bygrave and Docksey, The EU General Data Protection Regulation (GDPR), A commentary, Article 18 GDPR, p. 487 (Oxford University Press, 2020).
- ↑ In case of automated processing, marking the data records as "blocked" is sufficient if the software accessing the marked data sets is able to recognise that only permitted processing operations under Article 18(2) are possible. See, Herbst, in Kühling, Buchner, DS-GVO BDSG, Article 18 GDPR, margin number 30 (C.H. Beck 2020, 3rd Edition).
- ↑ Dix, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 17 GDPR, margin number 6 (C.H. Beck 2019). Along the same line, Herbst, in Kühling, Buchner, DS-GVO BDSG, Article 18 GDPR, margin number 18 (C.H. Beck 2020, 3rd Edition).
- ↑ It might also be the case that the personal data constitute important evidence of the unlawful processing itself (e.g. health data which were collected without the consent of the data subject).
- ↑ Herbst, in Kühling, Buchner, DS-GVO BDSG, Article 18 GDPR, margin number 16 (C.H. Beck 2020, 3rd Edition).
- ↑ It must be recalled that, in accordance with Article 4(1) GDPR, deletion of personal data is a processing operation as such. By exercising their right to restriction of the processing, data subjects are therefore automatically putting controllers under the obligation not to erase their data, pending clarification of the unlawful nature of the processing.
- ↑ They may, however, exercise the right to restriction of processing in order to request the controller not to erase personal data, while addressing the potential unlawful character of such processing.
- ↑ Herbst, in Kühling, Buchner, DS-GVO BDSG, Article 18 GDPR, margin numbers 22-23 (C.H. Beck 2020, 3rd Edition).
- ↑ Herbst, in Kühling, Buchner, DS-GVO BDSG, Article 18 GDPR, margin numbers 49-50 (C.H. Beck 2020, 3rd Edition).
- ↑ Dix, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 17 GDPR, margin number 13 (C.H. Beck 2019).
- ↑ Herbst, in Kühling, Buchner, DS-GVO BDSG, Article 18 GDPR, margin number 43 (C.H. Beck 2020, 3rd Edition).
