Article 12 GDPR

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

Legal Text

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

1. The controller shall take appropriate measures to provide any information referred to in Articles 13 and 14 and any communication under Articles 15 to 22 and 34 relating to processing to the data subject in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child. The information shall be provided in writing, or by other means, including, where appropriate, by electronic means. When requested by the data subject, the information may be provided orally, provided that the identity of the data subject is proven by other means.

2. The controller shall facilitate the exercise of data subject rights under Articles 15 to 22. In the cases referred to in Article 11(2), the controller shall not refuse to act on the request of the data subject for exercising his or her rights under Articles 15 to 22, unless the controller demonstrates that it is not in a position to identify the data subject.

3. The controller shall provide information on action taken on a request under Articles 15 to 22 to the data subject without undue delay and in any event within one month of receipt of the request. That period may be extended by two further months where necessary, taking into account the complexity and number of the requests. The controller shall inform the data subject of any such extension within one month of receipt of the request, together with the reasons for the delay. Where the data subject makes the request by electronic form means, the information shall be provided by electronic means where possible, unless otherwise requested by the data subject.

4. If the controller does not take action on the request of the data subject, the controller shall inform the data subject without delay and at the latest within one month of receipt of the request of the reasons for not taking action and on the possibility of lodging a complaint with a supervisory authority and seeking a judicial remedy.

5. Information provided under Articles 13 and 14 and any communication and any actions taken under Articles 15 to 22 and 34 shall be provided free of charge. Where requests from a data subject are manifestly unfounded or excessive, in particular because of their repetitive character, the controller may either:

(a) charge a reasonable fee taking into account the administrative costs of providing the information or communication or taking the action requested; or

(b) refuse to act on the request.

The controller shall bear the burden of demonstrating the manifestly unfounded or excessive character of the request.

6. Without prejudice to Article 11, where the controller has reasonable doubts concerning the identity of the natural person making the request referred to in Articles 15 to 21, the controller may request the provision of additional information necessary to confirm the identity of the data subject.

7. The information to be provided to data subjects pursuant to Articles 13 and 14 may be provided in combination with standardised icons in order to give in an easily visible, intelligible and clearly legible manner a meaningful overview of the intended processing. Where the icons are presented electronically they shall be machine-readable.

8. The Commission shall be empowered to adopt delegated acts in accordance with Article 92 for the purpose of determining the information to be presented by the icons and the procedures for providing standardised icons.

Relevant Recitals

Recital 11: Strengthening of Rights and Enforcement

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

Recital 39: Principles of Data Processing

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

Recital 57: Additional Information for Identification

If the personal data processed by a controller do not permit the controller to identify a natural person, the data controller should not be obliged to acquire additional information in order to identify the data subject for the sole purpose of complying with any provision of this Regulation. However, the controller should not refuse to take additional information provided by the data subject in order to support the exercise of his or her rights. Identification should include the digital identification of a data subject, for example through authentication mechanism such as the same credentials, used by the data subject to log-in to the on-line service offered by the data controller.

Recital 58: Modalities for Transparent Information Provision

The principle of transparency requires that any information addressed to the public or to the data subject be concise, easily accessible and easy to understand, and that clear and plain language and, additionally, where appropriate, visualisation be used. Such information could be provided in electronic form, for example, when addressed to the public, through a website. This is of particular relevance in situations where the proliferation of actors and the technological complexity of practice make it difficult for the data subject to know and understand whether, by whom and for what purpose personal data relating to him or her are being collected, such as in the case of online advertising. Given that children merit specific protection, any information and communication, where processing is addressed to a child, should be in such a clear and plain language that the child can easily understand.

Recital 59: Modalities for Facilitating Data Subject Rights

Modalities should be provided for facilitating the exercise of the data subject's rights under this Regulation, including mechanisms to request and, if applicable, obtain, free of charge, in particular, access to and rectification or erasure of personal data and the exercise of the right to object. The controller should also provide means for requests to be made electronically, especially where personal data are processed by electronic means. The controller should be obliged to respond to requests from the data subject without undue delay and at the latest within one month and to give reasons where the controller does not intend to comply with any such requests.

Recital 60: Information Requirements

The principles of fair and transparent processing require that the data subject be informed of the existence of the processing operation and its purposes. The controller should provide the data subject with any further information necessary to ensure fair and transparent processing taking into account the specific circumstances and context in which the personal data are processed. Furthermore, the data subject should be informed of the existence of profiling and the consequences of such profiling. Where the personal data are collected from the data subject, the data subject should also be informed whether he or she is obliged to provide the personal data and of the consequences, where he or she does not provide such data. That information may be provided in combination with standardised icons in order to give in an easily visible, intelligible and clearly legible manner, a meaningful overview of the intended processing. Where the icons are presented electronically, they should be machine-readable.

Recital 63: Modalities and Scope of Right of Access

A data subject should have the right of access to personal data which have been collected concerning him or her, and to exercise that right easily and at reasonable intervals, in order to be aware of, and verify, the lawfulness of the processing. This includes the right for data subjects to have access to data concerning their health, for example the data in their medical records containing information such as diagnoses, examination results, assessments by treating physicians and any treatment or interventions provided. Every data subject should therefore have the right to know and obtain communication in particular with regard to the purposes for which the personal data are processed, where possible the period for which the personal data are processed, the recipients of the personal data, the logic involved in any automatic personal data processing and, at least when based on profiling, the consequences of such processing. Where possible, the controller should be able to provide remote access to a secure system which would provide the data subject with direct access to his or her personal data. That right should not adversely affect the rights or freedoms of others, including trade secrets or intellectual property and in particular the copyright protecting the software. However, the result of those considerations should not be a refusal to provide all information to the data subject. Where the controller processes a large quantity of information concerning the data subject, the controller should be able to request that, before the information is delivered, the data subject specify the information or processing activities to which the request relates.

Recital 64: Identity Verification

The controller should use all reasonable measures to verify the identity of a data subject who requests access, in particular in the context of online services and online identifiers. A controller should not retain personal data for the sole purpose of being able to react to potential requests.

Recital 73: Restrictions by Member States

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

Recital 166: Delegated Acts

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

Commentary

Article 12 GDPR ensures the efficient exercise of the data subject’s rights. To do so, it regulates clarity and accessibility standards regarding communications with the data subject. It also lays down procedural rules the controller must follow once a GDPR right is exercised.

(1) Requirements of information in the GDPR

Article 12(1) GDPR requires controllers to take appropriate measures to provide "any" information under Articles 13, 14, 15 to 22 and 34 GDPR in a manner that is concise, transparent, intelligible and easily accessible, using clear and plain language. The provision set out two main requirements. Firstly, the controller must accurately present the information in terms of content (accuracy requirement). Secondly, the information must be presented in a manner that is easily understandable to the data subject without requiring excessive cognitive effort or time (comprehensibility requirement). Hence, a measure - or, most likely, a set of measures - is therefore "appropriate" under Article 12 GDPR when it generates information under Articles 13, 14, 15 to 22 and 34 GDPR which is both (i) accurate ("any" information), and (ii) clear ("concise, transparent, intelligible and easily accessible, using clear and plain language").

(i) Accuracy

The controller is obliged to provide all the information the law obliges it to provide in connection with the specific cases. Sometimes, it may be a matter of constructing a privacy policy under Article 13 GDPR. In this case, the information will be complete when all the elements required by that provision are included in the policy. On other occasions, it will be a matter of responding comprehensively to an Article 15 GDPR access request.

In all cases, the controller's effort must be to include all the information it is required to provide. This includes, where appropriate, measures to correctly detect the content of the request and assign it to the responsible department. The same goes for internal policies and technical equipment enabling the controller's staff to retrieve the data and perform any required operation (e.g. copy, rectification, deletion).

Example: Markus is annoyed by some marketing emails he has been receiving for the last few months. He files an access and erasure request. Ideally, the controller already put in place all the measures to fully address the requests. This includes being able to recognize the two requests, assign them to the relevant department, retrieve all the information required, explain it to the data subject in clear, simple and tailored terms, and delete all the data subject's contact details from its marketing lists.

(ii) Clarity

The appropriateness of a measure shall also be assessed against the clarity requirement set forth in Article 12. In practice, deciding what is appropriate will not always be easy. In certain circumstances, for instance, a given processing may not be easy to explain, especially where a considerable amount of data is processed and numerous actors are involved in the processing chain. In such cases, finding the appropriate measure will not always be straightforward. However, the complexity of the processing is not a justification for reducing the transparency standards imposed by the Regulation.

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

That being said, the information or communications must always be presented in a concise, transparent, intelligible and easily accessible way, using clear and plain language.

Conciseness

Information about the processing must be presented concisely. This is intended to prevent controllers from providing an overly lengthy or convoluted description of the processing activity, as data subject usually will not read multiple pages of the text. Thus, controllers have a positive obligation to prevent data subjects from experiencing information overload. For example, the use of a layered privacy statement may present the most relevant section to the data subject rather than providing them with an unconscionable notice. A layered approach may not be used to hide the more problematic processing in a lower layer. The most relevant information or any unexpected processing should be easily available.

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

Transparency

The main goal of transparency is the accurate and fair understanding of data processing operations. Generally speaking, when receiving the information and communications foreseen under Article 12 GDPR, a data subject should always be able to determine the scope and consequences of the processing entails.

Example: A controller provider of a website does not have sufficient information about the functioning of software it uses because the manufacturer of this software does not disclose it. It will be difficult for the controller to fulfil its duty to inform the data subject. Consequently, it would have to refrain from using the software.

Intelligibility

Information is “intelligible” when it is understandable by an average member of the intended audience. Therefore, an accountable data controller must have an understanding of the people that it collects information about, which it should use to determine what they are likely to understand. For example, a controller collecting the personal data of working professionals can assume its audience has a higher level of understanding than a controller that obtains the personal data of children.

EDPB: If controllers are uncertain about the level of intelligibility, they can test these through mechanisms such as, inter alia, user panels, readability testing, as well as formal and informal dialogue with industry groups, consumer advocacy groups and regulatory bodies (Article 35(9) GDPR).

Easily Accessible Form

The "easily accessible" element implies that the data subject should not have to actively search for the information. It should be readily visible and clear to them where and how they can access the information. This can be achieved through various means, such as providing the information directly to them, linking to it, clearly indicating its location, or providing it as an answer to a natural language question. Examples of how this can be implemented include online layered privacy statements/ notices, FAQs, contextual pop-ups that activate when a data subject fills in an online form, or interactive digital interfaces like chatbots.

EDPB: For apps, the necessary information should also be made available from an online store prior to download. Once the app is installed, the information still needs to be easily accessible from within the app. One way to meet this requirement is to ensure that the information is never more than “two taps away” (e.g. by including a “Privacy”/ “Data Protection” option in the menu functionality of the app).

Clear and plain language

The requirement for clear and plain language means that information should be provided in as simple a manner as possible, avoiding complex sentence and language structures. The information should be concrete as well as definitive, and should neither be phrased in abstract or ambivalent terms, nor leave room for diverging interpretations. In particular, the purposes of and legal basis for processing the personal data should be clear.

Common misunderstanding: Language qualifiers such as “may”, “might”, “some”, “often” and “possible” should be avoided. Where data controllers opt to use vague language, they should be able to, in accordance with the principle of accountability, demonstrate why the use of such language could not be avoided and how it does not undermine the fairness of processing.

This requirement also affects the language used for the communication. Whilst the GDPR does not expressly regulate the matter, it is clear that the level of intelligibility of information is directly linked to the user’s capacity of understanding a certain language.

EDPB: Where the information is translated into one or more other languages, the data controller should ensure that all the translations are accurate and that the phraseology and syntax makes sense in the second language(s) so that the translated text does not have to be deciphered or re-interpreted. (A translation in one or more other languages should be provided where the controller targets15 data subjects speaking those languages.)

In writing or by other means

Under Article 12(1) GDPR, information “shall be provided in writing, or by other means, including, where appropriate, by electronic means.” Written form is therefore the default option. However, where writing is not possible, other means can be used. For instance, if a data controller operates a website, a written notice is not necessary and electronic forms are to be preferred. In such cases, the use of a webpage containing the information will adequately serve the purpose.

The WP29 suggested the implementation of layered privacy statements which allow website visitors to navigate to particular aspects of the relevant privacy statement that are of most interest to them. The use of a layered approach is nonetheless not the only available option. Other electronic means include “just-in-time” contextual pop-up notices, 3D touch or hover-over notices, and privacy dashboards. Non-written electronic means which may be used in addition to a layered privacy statement might also include videos and smartphone or IoT voice alerts.

“Other [not necessarily electronic] means” might include cartoons, info-graphics or flowcharts. The method chosen by controllers must fit the particular circumstances. For example, if a certain device does not have a screen, providing information in an electronic written format would not make much sense. In such cases, controllers can provide a printed privacy statement inside the device package or redirect the data subject to the URL website address where the privacy notice can be found.

Finally, the GDPR also empowers data subjects to be provided orally, but only under two conditions: (i) the data subject must request oral information or communication and (ii) the controller must have otherwise verified the data subject’s identity. The second requirement, (ii), only refers to cases where data subject's authentication is necessary. Consequently, it generally applies when a data subject exercises one of their GDPR rights (Articles 15 - 22) or when a communication of personal data breach is needed under Article 34 GDPR.

(2) Obligation to facilitate the exercise of rights

Under Article 12(2), first sentence, GDPR the controller must facilitate the data subject in the exercise of their GDPR rights.

Shall facilitate

The term "facilitate" implies a proactive approach by the controller who must take any action to ease the exercise of GDPR rights. The Regulation does not define the notion of “facilitation”, but warns that “modalities" should be provided for facilitating the exercise of the data subject's rights. These “modalities” should cover the whole range of activities a controller undertakes to fully address a GDPR request. To be more precise, controllers must demonstrate that "the way to handle the request aims to give the broadest effect to the right [...] and that it is in line with its obligation to facilitate the exercise of data subjects rights (Art. 12(2) GDPR)."

Among the others, data subjects should be allowed to reach the controller and its DPO “in an easy way (a postal address, a dedicated telephone number, and a dedicated e-mail address)”. Once the request is received, the controller should be able to handle it internally as efficiently as possible, and ensure the request be handled by the appropriate department. Data subject authentication should be free of unnecessary burdens. The method used for authentication should be "relevant, appropriate, proportionate and respect the data minimisation principle." Any subsequent interaction that the controller feels it must have with the data subject must also be facilitated.

This dynamic, however, must once again be marked by the principle of fairness and must not result in unnecessary "ping-pongs" whose only goal is to prevent the data subject from obtaining the response.

Data subject requests always addressed unless identification is impossible

The final part of Article 12(2) GDPR states that the controller shall not refuse to act on a request of the data subject to exercise their rights, unless it demonstrates that it is not in a position to identify the data subject. However, in such circumstances the data subject may provide additional information enabling their identification (Article 11(2) GDPR). In order to allow the data subject to provide this additional information, the controller should inform the data subject of the nature of what is required to allow identification. This provision, prevents the controller from adopting obstructive tactics relating to alleged "difficulties of identification" unless these actually exist. Consequently, all attempts at verification which require excessive efforts (while adding nothing in terms of security) become inadmissible - and do not constitute 'facilitation'.

Example: a user signs up to a social network by providing their email and generating a login password. After a few years of use, they decide to send an email login request because the information download tool provided by the controller does not provide certain information. Upon receipt of the email, the controller requests the user to send a scan of their identification document to verify their identity. This conduct constitutes a breach of the obligation to facilitate the exercise of rights. The controller may nonetheless send a unique identification link to the email address used by the user for registration.

(3) Time limit and form of the request

Under Article 12(3) GDPR, the controller must inform the data subject about the "action taken" following receipt of a request. Article 12 deals with the exercise of GDPR rights in general. The wording "action taken" is therefore appropriate. In some cases, the "action" will consist of retrieving and arranging personal data (the copy of data undergoing processing under Article 15(3) GDPR). In others, the action takes place within the controller's IT systems (data rectification and deletion, under Articles 16 and 17 GDPR).

A "response" to the data subject, communicating the results of which action was taken is always necessary. This must happen as soon as possible ("without undue delay") and in any event within one month. The EDPB confirms that the period in question should be calculated according to Regulation (UE) 1182/71.

EDPB: Example 1: An organisation receives a request on 5 March. The time limit starts from the same day. This gives the organisation until and including 5 April to comply with the request, at the latest. Example 2: If the organisation receives a request on 31 August, and as the following month is shorter there is no corresponding date, the date for response, at the latest, is the last day of the following month, hence 30 September.

The one-month deadline may be extended by two months if the requests are so complex or numerous that they cannot be answered within one month. A controller cannot extend the duration simply because its inadequate internal organisation prevents them from complying with a request in a timely manner. As mentioned before, "a controller who processes a vast amount of data on a large scale must accept to undertake great efforts" to ensure GDPR compliance. In any case, when a controller is unable to comply with the one-month deadline, it must inform the data subject of the reasons for the delay within one month of receiving the request.

The final sentence of Article 12(3) specifies that where the data subject makes the request by electronic means, and unless otherwise requested by them, the information shall be provided in a commonly used electronic form. However, the provision of electronic means is not an obligation for the controller. Nevertheless, Recital 63 GDPR expressly indicates that, where possible, the controller should be able to provide remote access to a secure system which would provide the data subject with direct access to their personal data. This is clearly intended to encourage controllers to facilitate the exercise of access rights.

(4) Failure to act on the request

If a controller does not act on the data subject's request, it must explain why this is the case as soon as possible, and at the latest within one month of receiving the request. It must also tell the data subject about their right to lodge a complaint with a supervisory authority or to seek a judicial remedy.

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

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

(5) Free of charge

Under Article 12(5) GDPR, controllers may generally not charge data subjects for the provision of information under Articles 13 and 14 GDPR, or for communications and actions taken under Articles 15-22 GDPR (data subject rights) and Article 34 GDPR (communication of personal data breaches to data subjects). The principle of transparency requires that the provision of such information is not made conditional upon a financial transaction. There are exceptions to this rule, which should nonetheless be interpreted narrowly to avoid undermining the principle of transparency and gratuity of the request. For instance, if the request is manifestly unfounded or excessive, controllers may either charge a reasonable fee or refuse to act on the request. In these cases, controllers must be able to demonstrate the manifestly unfounded or excessive character of a request (Article 12(5), third sentence, GDPR). Hence, controllers should maintain a proper documentation of the underlying facts.

Manifestly unfounded

A request is considered manifestly unfounded if it does not meet essential legal requirements and is therefore “obvious”. For example, if an unauthorised person wants to assert the rights of a data subject, or when an individual requests the erasure of their personal data vis-à-vis a controller who has not stored any data concerning them.

Excessive requests

There is no definition of the term “excessive” in the GDPR. On the one hand, the wording “in particular because of their repetitive character” in Article 12(5) GDPR suggests that the main scenario to which this limb applies is when a data subject makes a large amount of access requests under Article 15 GDPR. On the other hand, the qualifier “in particular” indicates that other reasons that might cause excessiveness are not excluded a priori.

A data subject may nonetheless undoubtedly submit more than one request to a controller. In this case, it has to be assessed whether the threshold of reasonable intervals (see Recital 63) has been exceeded. Controllers must take into account the particular circumstances of the single case carefully. In general, “The more often changes occur in the database of the controller, the more often data subjects may be permitted to request access without it being excessive”. That said, other factors such as the nature of the data, the purpose of the processing and whether the subsequent requests concern the same type of information or processing activities should all be taken into account.

Another relevant factor is the nature of the communication channel between the data subject and controller. Taking the example of an access request, if it is possible to easily provide the relevant information by electronic means or by remote access to a secure system, which makes compliance simple for the controller, it is unlikely that repetitive requests can be regarded as excessive.

(a) Reasonable fee

If information requests are manifestly unfounded or excessive, in particular due to their repetitive nature, the data controller may charge a reasonable fee. This exception must be interpreted restrictively in order to not excessively constrain data subjects’ right to information. Consequently, provided the request is not manifestly unfounded or repetitive, the controller cannot charge a fee even it was provided for in the contract terms. Controllers should inform data subjects of their intention to charge them a reasonable fee based on Article 12(5) GDPR before doing so, to allow them to decide whether they should withdraw their request to avoid being charged.

(b) Refuse to act

Alternatively, if requests are manifestly unfounded or excessive, the controller can outright refuse to act on the request. For both of the aforementioned exceptions to the no-fee rule, the controller bears the burden of demonstrating the manifestly unfounded or excessive character of the request.

(6) Verifying the data subject

Controllers often reject data subjects’ requests because of alleged problems in identifying them and the risk of disclosing personal data to an unauthorised person which, for example, might contribute to identity theft. If the controller has reasonable doubts concerning the identity of a natural person making a request under Articles 15 to 21 GDPR, additional information may be requested to verify their identity. However, this cannot lead to excessive demands and to the collection of personal data which are not relevant or necessary to strengthen the link between the individual and the personal data requested.

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

In the context of online services, the data subject can be authenticated, inter alia, by sending a secret code, a link containing a unique token to their email address, or any other contact method used for the registration. Further information about this can be found in the commentary under Article 11 GDPR.

(7) Standardised icons

Information can also be provided visually, using certain kind of tools (e.g. icons, certification mechanisms, and data protection seals and marks). However, the use of icons should not replace the information needed by data subjects to enforce their rights, nor should they be used as a substitute to compliance with the controller’s obligations under Articles 13 and 14 GDPR. Instead, they could constitute an acceptable first layer of information. For example, an icon representing a lock might be used to signal that data is safely collected or encrypted. Whilst it is one of the EDPB’s tasks under Article 70(1)(r) to provide the Commission with an opinion on the icons, it has not yet published such a document.

(8) Code of icons

The Commission has the power to determine the information to be displayed by icons as well as the procedures for providing standardised icons. Its competence does not include the binding establishment of specific icons. Per Recital 166 GDPR, the process of developing a code of icons should involve the carrying out of consultations, and research on the efficacy of icons. Article 12(8) does not expressly specify whose responsibility it is to conduct such research, meaning standardised icons could come from either the Commission or standard-setting organisations.

Decisions

→ You can find all related decisions in Category:Article 12 GDPR