Article 4 GDPR
Legal Text
Article 4 - Definitions
For the purposes of this Regulation:
1. ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
2. ‘processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;
3. ‘restriction of processing’ means the marking of stored personal data with the aim of limiting their processing in the future;
4. ‘profiling’ means any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person's performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements;
5. ‘pseudonymisation’ means the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person;
6. ‘filing system’ means any structured set of personal data which are accessible according to specific criteria, whether centralised, decentralised or dispersed on a functional or geographical basis;
7. ‘controller’ means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law;
8. ‘processor’ means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller;
9. ‘recipient’ means a natural or legal person, public authority, agency or another body, to which the personal data are disclosed, whether a third party or not. However, public authorities which may receive personal data in the framework of a particular inquiry in accordance with Union or Member State law shall not be regarded as recipients; the processing of those data by those public authorities shall be in compliance with the applicable data protection rules according to the purposes of the processing
10. ‘third party’ means a natural or legal person, public authority, agency or body other than the data subject, controller, processor and persons who, under the direct authority of the controller or processor, are authorised to process personal data;
11. ‘consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her;
12. ‘personal data breach’ means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed;
13. ‘genetic data’ means personal data relating to the inherited or acquired genetic characteristics of a natural person which give unique information about the physiology or the health of that natural person and which result, in particular, from an analysis of a biological sample from the natural person in question;
14. ‘biometric data’ means personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data;
15. ‘data concerning health’ means personal data related to the physical or mental health of a natural person, including the provision of health care services, which reveal information about his or her health status;
16. ‘main establishment’ means:
- (a) as regards a controller with establishments in more than one Member State, the place of its central administration in the Union, unless the decisions on the purposes and means of the processing of personal data are taken in another establishment of the controller in the Union and the latter establishment has the power to have such decisions implemented, in which case the establishment having taken such decisions is to be considered to be the main establishment;
- (b) as regards a processor with establishments in more than one Member State, the place of its central administration in the Union, or, if the processor has no central administration in the Union, the establishment of the processor in the Union where the main processing activities in the context of the activities of an establishment of the processor take place to the extent that the processor is subject to specific obligations under this Regulation;
17. ‘representative’ means a natural or legal person established in the Union who, designated by the controller or processor in writing pursuant to Article 27, represents the controller or processor with regard to their respective obligations under this Regulation;
18. ‘enterprise’ means a natural or legal person engaged in an economic activity, irrespective of its legal form, including partnerships or associations regularly engaged in an economic activity;
19. ‘group of undertakings’ means a controlling undertaking and its controlled undertakings;
20. ‘binding corporate rules’ means personal data protection policies which are adhered to by a controller or processor established on the territory of a Member State for transfers or a set of transfers of personal data to a controller or processor in one or more third countries within a group of undertakings, or group of enterprises engaged in a joint economic activity;
21. ‘supervisory authority’ means an independent public authority which is established by a Member State pursuant to Article 51;
22. ‘supervisory authority concerned’ means a supervisory authority which is concerned by the processing of personal data because:
- (a) the controller or processor is established on the territory of the Member State of that supervisory authority;
- (b) data subjects residing in the Member State of that supervisory authority are substantially affected or likely to be substantially affected by the processing; or
- (c) a complaint has been lodged with that supervisory authority;
23. ‘cross-border processing’ means either:
- (a) processing of personal data which takes place in the context of the activities of establishments in more than one Member State of a controller or processor in the Union where the controller or processor is established in more than one Member State; or
- (b) processing of personal data which takes place in the context of the activities of a single establishment of a controller or processor in the Union but which substantially affects or is likely to substantially affect data subjects in more than one Member State.
24. ‘relevant and reasoned objection’ means an objection to a draft decision as to whether there is an infringement of this Regulation, or whether envisaged action in relation to the controller or processor complies with this Regulation, which clearly demonstrates the significance of the risks posed by the draft decision as regards the fundamental rights and freedoms of data subjects and, where applicable, the free flow of personal data within the Union;
25. ‘information society service’ means a service as defined in point (b) of Article 1(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council
26. ‘international organisation’ means an organisation and its subordinate bodies governed by public international law, or any other body which is set up by, or on the basis of, an agreement between two or more countries.
Relevant Recitals
Personal Data[1]
Commentary on Article 4
Article 4 contains definitions of terms used in the Regulation. While some definitions are taken over from Directive 95/46/EC, others are modified, complemented with additional elements, or newly introduced.
In addition to the definitions provided in Article 4 GDPR, legal definitions are provided in
- Article 5 GDPR: ‘lawfulness, fairness and transparency’, ‘purpose limitation’, ‘data minimisation’, ‘accuracy’, storage limitation’, ‘integrity and confidentiality’, ‘accountability’
- Article 8 GDPR: ‘child’
- Article 9 GDPR: ‘special categories of personal data’
- Article 51 GDPR: ‘Supervisory authority’
- Article 68 GDPR: ‘European Data Protection Board’,
Due to the similarity in content of the definitions to those of the Directive 95/46/EC, it is possible to build on the existing understanding of the terms to some extent. In the case of new definitions, on the other hand, there is scope for new interpretations.
In order to avoid linguistic inconsistencies in the interpretation of definitions and to ensure that there are no differences in the understanding of terms which could lead to inconsistent application of the law, it should be noted that the Regulation is legally binding in all other official languages of the EU. Therefore, whenever in doubt, other language versions should be consulted for an interpretation and discrepancies should be resolved with the usual methods of interpretation.
(1) Personal Data
The principal concept of the GDPR is that of ‘personal data’. The antonym to personal data is defined in Article 3(1) of Regulation (EU) 2018/1807[2]
The used definition of personal data is an extension to the definition of personal data used in Article 2 (a) Directive 95/46/EC.[3]
The definition in the directive derived from the definition of personal data laid down in Article 2 (a) Convention 108[4]: ‘“personal data” means any information relating to an identified or identifiable individual (“data subject”)’[5]. The Commission stated, that:
- a broad definition is adopted in order to cover all information which may be linked to an individual. Depending on the use to which it is put, any item of data relating to an individual, harmless though it may seem, may be sensitive (e.g. a mere postal address). In order to avoid a situation in which means of indirect identification make it possible to circumvent this definition, it is stated that an identifiable individual is an individual who can be identified by reference to a number or a similar identifying particular.
The Commission’s modified proposal noted that ‘the amended proposal meets Parliament’s wish that the definition of “personal data” should be as general as possible, so as to include all information concerning an identifiable individual‘[6], a wish that also the Council took into account in the common position.[7]
The definition in the Regulation contains four main building blocks:
- ‘any information’
- ‘relating to’
- ‘an identified or indentifiable’
- ‘natural person’
Any Information
With the expression ‘any information’ in the directive, the legislator sends a clear signal of its willingness to take the term ‘personal data’ as broadly as possible. This wording requires a broad interpretation.
In 1983 the German Constitutional Court stated:
- Under the conditions of automatic data processing, there is no longer meaningless data.[8]
Personal data relates directly to the data subject or theirs interaction with their environment. Thus 'personal data' includes all kinds of statements about an individual. It can be ‘objective’ information such as a blood characteristic of a data subject, as well as ‘subjective’ information in the form of opinions or assessments. The latter type of information constitutes a significant part of the processing of personal data in sectors such as banking, for the assessment of the reliability of borrowers (‘An individual is a reliable borrower’), insurance (‘An individual should not die in the near future’) or employment (‘An individual is a good worker and deserves promotion’).[9]
For information to be considered ‘personal data’, it is not necessary for the information to be true, proven or complete. In fact, the GDPR provides for the possibility that the information is incorrect and gives the data subject the right to access this information (Article 15) and to rectify it (Article 16).[10]
With regard to the content of the information, 'personal data' includes any data which provides any kind of information. This of course includes special categories of personal data (Article 9) because of their special nature, but also more general types of information. The term ‘personal data’ includes information touching the individual’s private and family life sensu stricto, but also information regarding whatever types of activity is undertaken by the individual, like that concerning working relations or the economic or social behaviour of the individual. It includes therefore information on individuals, regardless, of the position or capacity of those persons (as consumer, patient, employee, customer, etc).[11]
This interpretation is corroborated by the wording of the Regulation itself.
On the one hand, the concept of private and family life should be regarded as broad, as the European Court of Human Rights has made clear:
- [The] term “private life” must not be interpreted restrictively. In particular, respect for private life comprises the right to establish and develop relationships with other human beings; furthermore, there is no reason of principle to justify excluding activities of a professional or business nature from the notion of “private life” (see the Niemietz v. Germany judgment[12] [...], and the Halford judgment[13] [...]). That broad interpretation corresponds with that of the Council of Europe’s Convention [108].[14]
On the other hand, the rules on the protection of personal data go beyond the protection of the broad concept of ‘right to respect for private and family life’ laid down in Convention 108.
It should be noted that the Charter of Fundamental Rights of the European Union lays down the protection of personal data in Article 8 as an autonomous right, separate and different from the respect for private life referred to in Article 7 of the Charter, as is the case at national level in some Member States.
With regard to format or medium of the information, the term ‘personal data’ includes data in alphabetical, numerical, graphic, photographic, acoustic or any other form of Information. This includes information on paper as well as information stored on a computer in binary form or, for example, on a video tape. This inevitably follows from the inclusion of automated processing of personal data in the scope of the Regulation.
Relating to
Identified or Identifiable
Natural Person
Examples
- name, municipality of residence, information concerning the earned and unearned income and assets of that person[19]
- data, which relate both to the monies paid by certain bodies and the recipients[20]
- name, date of birth, nationality, gender, ethnicity, religion and language[21]
- name of a person in conjunction with his telephone coordinates or information about his working conditions or hobbies[22]
- name, given name, date and place of birth, nationality, marital status, sex, record of entries into and exits from a a country, residence status particulars of passports issued, previous statements as to domicile, reference numbers issued by an autority, reference numbers used by authorities[23]
- fingerprints[24]
- the times when working hours begin and end, as well as the corresponding breaks and intervals[25]
- dynamic IP address[26]
- written exams[27]
(2) processing
You can help us fill this section!
restriction of processing
You can help us fill this section!
profiling
You can help us fill this section!
pseudonymisation
You can help us fill this section!
filing system
You can help us fill this section!
controller
The Definition of ‘controller’ is taken over from Article 2 (d) Directive 95/46/EC[28]; which itself is borrowed from Article 2 (d) Convention 108[29].
The Commission stated:
- The controller is the person ultimately responsible for the choices governing the design and operation of the processing carried out (usually a chief executive of the company), rather than anyone who carries out processing in accordance with the controller’s instructions. That is why the definition stipulates that the controller decides the ‘objective of the processing. [...] The controller may process data himself, or have them processed by members of his staff or by an outside processor, a legally separate person acting on his behalf.[30]
The concept of controller must be defined broadly in order to meet the objective of effective and complete protection pursued.[31]
An entity can be controller of personal data even if the information is not accessible for it.[32][33]
processor
You can help us fill this section!
recipient
You can help us fill this section!
third party
You can help us fill this section!
consent
You can help us fill this section!
personal data breach
You can help us fill this section!
genetic data
You can help us fill this section!
biometric data
You can help us fill this section!
data concerning health
You can help us fill this section!
main establishment
You can help us fill this section!
representative
You can help us fill this section!
enterprise
group of undertakings
You can help us fill this section!
binding corporate rules
supervisory authority
You can help us fill this section!
supervisory authority concerned
You can help us fill this section!
cross-border processing
You can help us fill this section!
relevant and reasoned objection
You can help us fill this section!
information society service
The definition of ‘information society service’ is borrowed from Article 1(1b) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services, which states:
- ‘service’ means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.
- For the purposes of this definition:
- (i) ‘at a distance’ means that the service is provided without the parties being simultaneously present;
- (ii) ‘by electronic means’ means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;
- (iii) ‘at the individual request of a recipient of services’ means that the service is provided through the transmission of data on individual request.
- An indicative list of services not covered by this definition is set out in Annex I;
The indicative list of services not covered by the second subparagraph of point (b) of Article 1(1) excludes the following services from being information society services:
- 1. Services not provided ‘at a distance’
- Services provided in the physical presence of the provider and the recipient, even if they involve the use of electronic devices:
- (a) medical examinations or treatment at a doctor's surgery using electronic equipment where the patient is physically present;
- (b) consultation of an electronic catalogue in a shop with the customer on site;
- (c) plane ticket reservation at a travel agency in the physical presence of the customer by means of a network of computers;
- (d) electronic games made available in a video arcade where the customer is physically present.
- 2. Services not provided ‘by electronic means’
- — services having material content even though provided via electronic devices:
- (a) automatic cash or ticket dispensing machines (banknotes, rail tickets);
- (b) access to road networks, car parks, etc., charging for use, even if there are electronic devices at the entrance/exit controlling access and/or ensuring correct payment is made,
- — offline services: distribution of CD-ROMs or software on diskettes,
- — services which are not provided via electronic processing/inventory systems:
- (a) voice telephony services;
- (b) telefax/telex services;
- (c) services provided via voice telephony or fax;
- (d) telephone/telefax consultation of a doctor;
- (e) telephone/telefax consultation of a lawyer;
- (f) telephone/telefax direct marketing.
- — services having material content even though provided via electronic devices:
- 3. Services not supplied ‘at the individual request of a recipient of services’
- Services provided by transmitting data without individual demand for simultaneous reception by an unlimited number of individual receivers (point to multipoint transmission):
- (a) television broadcasting services (including near-video on-demand services), covered by point (e) of Article 1(1) of Directive 2010/13/EU[34];
- (b) radio broadcasting services;
- (c) (televised) teletext.
international organisation
You can help us fill this section!
Decisions
→ You can find all related decisions in Category:Article 4 GDPR
References
- ↑ European Commission: What is personal data?
- ↑ Regulation (EU) 2018/1807 of the European Parliament and of the Council of 14 November 2018 on a framework for the free flow of non-personal data in the European Union (OJ L 303, 28.11.2018, p. 59–68) [1]
- ↑ COM(2012) 11 final - 2012/12 (COD), 27 January 2012, p. 9.
- ↑ COM (90) 314 final - SYN 287 and SYN 188, 30 September 1990, p. 19.
- ↑ Article 2 (a) European Council Convention No. 108
- ↑ COM (92) 422 final, 28.10.1992, p. 10, cited in Art. 29 Working Party. Opinion 4/2007 on the concept of personal data, 20 June 2007, p. 4
- ↑ Common position (EC) No 1/95, adopted by the Council on 20 February 1995, OJ C 93, 13.4.1995, p. 1–24 (20)
- ↑ Bundesverfassungsgericht. Judgment of of the First Senate of 15. December 1983 – 1 BvR 209, 269, 362, 420, 440, 484/83 –, Fulltext in de, Abstract in EN ECLI:DE:BVerfG:1983:rs19831215.1bvr020983:
- The nature of the information cannot be the only factor to be taken into account. What is decisive is their usability and applicability. These depend, on the one hand, on the purpose for which the data is collected and, on the other hand, on the processing and linking possibilities inherent in information technology. This can give a date that is in itself meaningless a new significance; in this respect, there is no longer ‘meaningless’ data under the conditions of automatic data processing.
Dabei kann nicht allein auf die Art der Angaben abgestellt werden. Entscheidend sind ihre Nutzbarkeit und Verwendungsmöglichkeit. Diese hängen einerseits von dem Zweck, dem die Erhebung dient, und andererseits von den der Informationstechnologie eigenen Verarbeitungsmöglichkeiten und Verknüpfungsmöglichkeiten ab. Dadurch kann ein für sich gesehen belangloses Datum einen neuen Stellenwert bekommen; insoweit gibt es unter den Bedingungen der automatischen Datenverarbeitung kein „belangloses“ Datum mehr.
- The nature of the information cannot be the only factor to be taken into account. What is decisive is their usability and applicability. These depend, on the one hand, on the purpose for which the data is collected and, on the other hand, on the processing and linking possibilities inherent in information technology. This can give a date that is in itself meaningless a new significance; in this respect, there is no longer ‘meaningless’ data under the conditions of automatic data processing.
- ↑ Art. 29 Working Party. Opinion 4/2007 on the concept of personal data, 20 June 2007, p. 6
- ↑ Art. 29 Working Party. Opinion 4/2007 on the concept of personal data, 20 June 2007, p. 6
- ↑ Art. 29 Working Party. Opinion 4/2007 on the concept of personal data, 20 June 2007, p. 6f
- ↑ European Court of Human Rights. Niemietz v. Germany, no. 13710/88)
- ↑ European Court of Human Rights. Halford v. the United Kingdon, no.20605/92
- ↑ European Court of Human Rights. Amann v. Switzerland [GC], no. 27798/95
- ↑ Article 29 Data Protection Working Party. Opinion 4/2007 on the concept of personal data. 20. June 2007 WP 136 p. 7
- ↑ Article 29 Data Protection Working Party. Opinion 4/2007 on the concept of personal data. 20. June 2007 WP 136 p. 8
- ↑ Article 29 Data Protection Working Party. Opinion 4/2007 on the concept of personal data. 20. June 2007 WP 136 p. 8
- ↑ Article 29 Data Protection Working Party. Opinion 4/2007 on the concept of personal data. 20. June 2007 WP 136 p. 8
- ↑ Judgment of the Court, Case C-73/07, 16 December 2008, ECLI:EU:C:2008:727, CELEX:62007CJ0073
- ↑ Judgment of the Court, Joined Cases C-465/00, C-138/01 and C-139/01, 20. May 2003, ECLI:EU:C:2003:294 CELEX:62000CJ0465
- ↑ Judgment of the Court, Joined Cases C‑141/12 and C‑372/12, 17. July 2014, ECLI:EU:C:2014:2081 CELEX:62012CJ0141, CELEX:62006CA0524
- ↑ Judgment of the Court, Case C-101/01, 6. November 2003, ECLI:EU:C:2003:596, CELEX:62001CJ0101
- ↑ Judgment of the Court, Case C-524/06, 16. December 2008, ECLI:EU:C:2008:724, CELEX:62006CJ0524
- ↑ Judgment of the Court, Case C‑291/12, 17. Oktober 2013, ECLI:EU:C:2013:670, CELEX:62012CJ0291
- ↑ Judgment of the Court, Case C-342/12, 30 May 2013, ECLI:EU:C:2013:355, CELEX:62012CJ0342
- ↑ Judgment of the Court, Case C-582/14, 19 October 2014, ECLI:EU:C:2016:779, CELEX:62014CJ0582
- ↑ Judgment of the Court, Case C‑434/16, 20 December 2017, ECLI:EU:C:2017:994, CELEX:62016CJ0434
- ↑ COM(2012) 11 final - 2012/12 (COD), 27 January 2012, p. 9.
- ↑ COM (92) 422 final - SYN 287, p. 10
- ↑ COM (92) 422 final - SYN 287, p. 10
- ↑ Opinion of the Advocate General, Case C-25/17, 1 February 2018, ECLI:EU:C:2018:57, CELEX:62017CC0025, paragraph 63
- ↑ Judgment of the Court, Case C-25/17, 10 July 2018, ECLI:EU:C:2018:551, CELEX:62017CJ0025, paragrah 69
- ↑ Judgment of the Court, C‑210/16, 5 June 2018, EU:C:2018:388, CELEX:62016CJ0210, paragraph 38
- ↑ point (e) of Article 1(1) of Directive 2010/13/EU:
1. For the purposes of this Directive, the following definitions shall apply:
[...]
(e) ‘television broadcasting’ or ‘television broadcast’ (i.e. a linear audiovisual media service) means an audiovisual media service provided by a media service provider for simultaneous viewing of programmes on the basis of a programme schedule [...].
