Datatilsynet (Norway) - 21/02873
| Datatilsynet - 21/02873-22 | |
|---|---|
 | |
| Authority: | Datatilsynet (Norway) |
| Jurisdiction: | Norway |
| Relevant Law: | Article 3(1) GDPR Article 4(16) GDPR Article 4(23) GDPR Article 12(2) GDPR Article 12(3) GDPR Article 12(5) GDPR Article 15 GDPR Article 15(4) GDPR Article 56(1) GDPR Article 60 GDPR |
| Type: | Complaint |
| Outcome: | Upheld |
| Started: | 26.08.2022 |
| Decided: | 22.05.2022 |
| Published: | |
| Fine: | n/a |
| Parties: | Zalaris ASA |
| National Case Number/Name: | 21/02873-22 |
| European Case Law Identifier: | EDPBI:NO:OSS:D:2022:365 |
| Appeal: | n/a |
| Original Language(s): | English |
| Original Source: | EDPB (in EN) |
| Initial Contributor: | n/a |
In an Article 60 GDPR procedure, the Norwegian DPA ordered an HR-services provider, pursuant to Article 58(2)(d) GDPR, to provide the data subject with information he requested in an access request (Article 15 GPDR).
English Summary
Facts
The data subject was a former employee of a German subsidiary of a company, which offered human resources and payroll administration serives (controller). The controller had its headquartes in Norway. The data subject filed an access request two times. The first request was send on 14 July to the CEO of the controller, who did not respond initially. The data subject filed a complaint with the Norwegian DPA (DPA) at 26 August 2021. The DPA recommended the data subject to send the request to the e-mail address the controller provided for inquiries regarding its privacy policy. The data subject sent this second request on 28 September 2021. However, the controller only replied to this second request after a reminder by the DPA on 22 december 2021. The CEO stated that he was on vacation. He stated that he did not have any direct relationship with the data subject and that the request was forwarded to the management in Germany were the data subject had been employed. The CEO also stated that a copy of the data had been send to the data subject as part of the conclusion of a settlement agreement. Because the case had been considered closed, this first access request was not further answered. The controller also stated that the second request had been marked as spam and had therefore not been processed in due time. The controller apologised for the late reply and provided a copy of its privacy policy applicable to employees data. The controller also provided a copy of personal data on USB, delivered to the home address of the data subject. According to the data subject, the controller did not provide all the information he requested.
Holding
The DPA stated that the GDPR was applicable, since the controller had multiple establishments in the EU and the EEA (European Economic Area). It also processed personal data of its employees in the context of the activities of these establishment (Article 3(1) GDPR). The DPA also determined that the controller its main establishment (Article 4(16) GDPR) in the EEA (Norway) and that its processing of the data subject’s personal data was cross-border processing (Article 4(23) GDPR). Therefore, the cooperation mechanism was applicable (Articles 56(1) GDPR and 60 GDPR), with the Norwegian DPA being the lead supervisory authority (Articles 56(1) GDPR).
Regarding the first request sent to the CEO, The DPA stated that it was legitimate for the controller to expect that data subjects would requests through a communication channel that was specifically meant for such purpose. The CEO of a company could not be expected to be directly involved with these requests. Therefore, the controller (the company, not the CEO) did not violate Articles 12(2) and 15 GDPR by failing to respond to the first request. The controller referred EDPB Guidelines to support its argument (“EDPB Guidelines on the Right of Access”, par. 55).
However, the DPA stated that the controller violated Article 12(2) GDPR by failing to facilitate the right to access under Article 15 GDPR regarding the second request. While referring to the EDPB guidelines again, the DPA stated that the controller had amongst other things, the obligation to take take adequate technical and organizational measures to ensure that they can receive and handle the access requests in a timely manner (EDPB Guidelines on the Right of Access, p. 2). Although controllers are free to choose the means, they must ensure that the communication channel they implement is easy to use and effective. This inlcudes providing 'state-of-the-art anti-spam protection' when this communication channel chosen is e-mail. The DPA specifically named CAPTCHA as an example. The controller treated the second request as a spam e-mail, which lead to the fact that this e-mail remained unanswered for almost three months, resulting in a breach of Article 12(2) GDPR for not facilitating the right of access under Article 15 GDPR. This was only a minor infringement because only one data subject was affected. The controller also stopped using this specific e-mail address that caused the infringement. The controller also started using a new communication channel using a CAPTCHA solution for data protection inquiries, which should be better at accurately detecting spam. Lastly, although the controller did not respond to the access request submitted on 28 September 2021 within the standard statutory one-month period (Article 12(3) GDPR), the controller did respond on 22 December 2021 within the maximum 3 months’ period in Article 12(3) GDPR. Based on these mitigating factors, the DPA did not issue any corrective measures.
The DPA also held that the controller did not provide all the personal data and information under Articles Article 15(1)(a) to (h) and 15(2) GDPR . Specifically, the controller did not provide sufficient information on the purposes of processing (Article 15(1)(a) GDPR), because it processed data for other purposes besides those mentioned in the privacy policy(“EDPB Guidelines on the Right of Access”, par. 112). The controller also did not provide enough information regarding categories of data concerned (Article 15(1)(b) GDPR) because the information was not tailored to this individual case. “EDPB Guidelines on the Right of Access”, par. 113) The controller also did not provide enough information regarding storage periods (Article 15(1)(d) GDPR), because it did not enable the data subject to assess what the retention period would be for specific data/purposes. According to the EDPB, “The information given by the controller has to be precise enough for the data subject to know how long the data relating to the data subject will continue to be stored. If it is not possible to specify the time of deletion, the duration of storage periods and the beginning of this period or the triggering event (e.g. termination of a contract, expiration of a warranty period, etc.) shall be specified.” “EDPB Guidelines on the Right of Access”, par. 116This last part was particularly relevant, given that the employment contract with the data subject had already been terminated.However, the DPA determined that the privacy policy provided sufficient information regarding the other information and data in Articles 15(1) and 15(2) GDPR.
The DPA concluded that the controller did not provide a copy of all the personal data. The controller had to provide a copy of all the data subject's personal data being processed by the controller, unless the controller was able to demonstrate that one of the exceptions in Articles 12(5) GDPR or 15(4) GDPR or Article 16 of the Norwegian Personal Data Act were applicable. However, the controller did not have to provide a copy of entire documents which contained personal data of the data subject. It only had to provide an unaltered copy of the personal data being processed in these documents.
The DPA ordered the controller (Article 58(2)(d) GDPR) to provide all of the information the data subject requested . This information also had to be understandable and clear (Article 12(1) GDPR). This meant the controller might need to supply additional information that explains the data provided, if such data are not immediately intelligible. However, the information did not need to be provided in machine readable format and was allowed to provide the relevant information in English, because the data subject had also been corresponding in Engglsih with the controller.
Comment
The GDPR has been incorporated into Annex XI to the European Economic Area (“EEA”) Agreement by means of Decision of the EEA Joint Committee No 154/2018 (“EEA Joint Committee Decision”)
The Norwegian Personal Data Act incorporated the GDPR into Norwegian law. The Personal Data Act and the GDPR entered into force in Norway on 20 July 2018.
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English Machine Translation of the Decision
The decision below is a machine translation of the English original. Please refer to the English original for more details.
FORDATAPRIVACYANDFREEDOMOFINFORMATION
Your: 12.11.2021
Management board member
Our: 28.02.2022 nr 2.1.-1/21/3286
Notice oftermination of the proceeding inregardto the protectionofpersonaldata
The proceeding of the Estonian DataProtection Inspectorate concerned the claim of a Lithuania
citizen (complainant) in regard to the fact that the
violated the requirements of GDPR.
Given the above, we initiated a supervision proceeding on the basis of clause 56 (3) 8) of the
PersonalData Protection Act.
During the proceeding, stated the following:
Our position is that in the case that was detailed in the inquiry, which includes a breach in
security regarding the processingof personaldata, is notat fault.
has not processed the personal data of in their system in
relation to the described case because the services described in the case were notordered in
the systems of nor according to ’s guidelines. The
application does notallow the commencementof ordering the services describedin
the inquiry and the applicationdoes nothave the functionality to do such things. The
is a tool for authentication and electronic signing which is meant for signing documents
electronically andlogging in to differentenvironments. We stress that does
notand has never takenpayments from users.
It is true that on 23 March 2021 we requested on the website that users update the
Android systemcomponents of their phones in the Google Play Store. The reasonfor this was
that Google had released a broken update for Google Chrome and Android SystemWebview
which was causing errors in differentapplications, including the application. The
problemwasalsoconfirmedbyGooglethemselves.Googlethenreleasedanupdatewhichfixed
the issues that were caused by the previous update and the newupdate was required for not
only the seamless operation of but also other applications. More information
regarding Google’s problemcan be found here.
Through the website, we directedthe users ofthe service to applythe fixedupdate in
order for the service to function properly once again. Please note thatthere were no links, QR-
codes, or telephone numbers in the message we publishedon the website. We simply
requested our clients to update their Google Chrome and Android System Webview in the
Google Play Store. The message readsas follows: FORDATAPRIVACYANDFREEDOMOFINFORMATION
application started crashing? Please update Google Chrome and Android System
Webview in Google Play Store. Google released a broken updatethatcauses applications to
crash and they have now also released fix for it. If thatdoes nothelp, please callour helpline
or contactus through the e-mailform.
In the message, did not request clients to scan a single QR-code, and
furthermore, the shortnumber1394is notused by us nor is itunder our control.
Therefore, does not knowwhere the person could have received the QR-
code for scanning or what exactly could have happened. doesnothave any
connections to the case besides requesting on our website that users update their
Android components,as was described above.
has no knowledgeof the services provided by or the
details connected to the order that was described in the inquiry. Furthermore,
does not have a contractual or any other kind of relationship with
.
Basedon the above, the Estonian Data Protection Inspectorate did not identify any violation of
the GDPR. For this reason, we are terminating the supervision proceedings.
This decision may be challenged within 30 days by submitting one of the two:
- A challenge to the Director General of the Estonian Data Protection Inspectorate
pursuant to the Administrative Procedure Act , or
2
- Anappealto anadministrative court under the Code ofAdministrative Court Procedure
(in this case,the challenge in the same matter canno longer be reviewed).
Respectfully
Lawyer
Authorised by the Director General
1
2https://www riigiteataja.ee/en/eli/527032019002/consolide
https://www riigiteataja.ee/en/eli/512122019007/consolide
