Article 13 GDPR

← Article 13: Information to be provided where personal data are collected from 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 13: Information to be provided where personal data are collected from the data subject

1. Where personal data relating to a data subject are collected from the data subject, the controller shall, at the time when personal data are obtained, provide the data subject with all of the following information:

(a) the identity and the contact details of the controller and, where applicable, of the controller's representative;

(b) the contact details of the data protection officer, where applicable;

(c) the purposes of the processing for which the personal data are intended as well as the legal basis for the processing;

(d) where the processing is based on point (f) of Article 6(1), the legitimate interests pursued by the controller or by a third party;

(e) the recipients or categories of recipients of the personal data, if any;

(f) where applicable, the fact that the controller intends to transfer personal data to a third country or international organisation and the existence or absence of an adequacy decision by the Commission, or in the case of transfers referred to in Article 46 or 47, or the second subparagraph of Article 49(1), reference to the appropriate or suitable safeguards and the means by which to obtain a copy of them or where they have been made available.

2. In addition to the information referred to in paragraph 1, the controller shall, at the time when personal data are obtained, provide the data subject with the following further information necessary to ensure fair and transparent processing:

(a) the period for which the personal data will be stored, or if that is not possible, the criteria used to determine that period;

(b) the existence of the right to request from the controller access to and rectification or erasure of personal data or restriction of processing concerning the data subject or to object to processing as well as the right to data portability;

(c) where the processing is based on point (a) of Article 6(1) or point (a) of Article 9(2), the existence of the right to withdraw consent at any time, without affecting the lawfulness of processing based on consent before its withdrawal;

(d) the right to lodge a complaint with a supervisory authority;

(e) whether the provision of personal data is a statutory or contractual requirement, or a requirement necessary to enter into a contract, as well as whether the data subject is obliged to provide the personal data and of the possible consequences of failure to provide such data;

(f) the existence of automated decision-making, including profiling, referred to in Article 22(1) and (4) and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject.

3. Where the controller intends to further process the personal data for a purpose other than that for which the personal data were collected, the controller shall provide the data subject prior to that further processing with information on that other purpose and with any relevant further information as referred to in paragraph 2.

4. Paragraphs 1, 2 and 3 shall not apply where and insofar as the data subject already has the information.

Relevant Recitals

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 61: Time of Information Provision

The information in relation to the processing of personal data relating to the data subject should be given to him or her at the time of collection from the data subject, or, where the personal data are obtained from another source, within a reasonable period, depending on the circumstances of the case. Where personal data can be legitimately disclosed to another recipient, the data subject should be informed when the personal data are first disclosed to the recipient. Where the controller intends to process the personal data for a purpose other than that for which they were collected, the controller should provide the data subject prior to that further processing with information on that other purpose and other necessary information. Where the origin of the personal data cannot be provided to the data subject because various sources have been used, general information should be provided.

Recital 62: Exceptions to Information Requirement

However, it is not necessary to impose the obligation to provide information where the data subject already possesses the information, where the recording or disclosure of the personal data is expressly laid down by law or where the provision of information to the data subject proves to be impossible or would involve a disproportionate effort. The latter could in particular be the case where processing is carried out for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes. In that regard, the number of data subjects, the age of the data and any appropriate safeguards adopted should be taken into consideration.

Commentary

Article 13 of the GDPR embodies the principle of transparency, outlining the controller's obligation to provide clear and comprehensive information to individuals about the processing of their personal data. Article 13 GDPR applies in situations where personal data are collected directly from the data subjects (i.e. direct collection). The provision is divided into 4 paragraphs. The first paragraph mandates the controller to describe certain elements of the processing, such as the identity and contact details of the controller and the DPO, where appointed, the purposes of the processing, legal bases, any legitimate interests pursued by the controller, recipients of the data, etc. The second paragraph stipulates that "in addition" to the aforementioned elements, further details must be furnished to "ensure fair and transparent processing". These may encompass information on data retention, the existence of rights that can be exercised by the data subject, as well as clarifications on the functioning and potential consequences of automated decision-making systems. The third paragraph defines the obligation to notify the data subject when the controller intends to undertake additional processing that was not previously disclosed. Lastly, the fourth paragraph establishes a general principle that the aforementioned information may be omitted if the data subject already possesses it.

(1) Information the controller shall provide at the time personal data is obtained

Paragraph 1 clarifies the scope of application of Article 13 of the GDPR. The information in question must be provided when personal data is "collected from the data subject".

Collection

Collection occurs whenever personal data comes into the possession of the controller. This includes operations such as receiving data included in a paper or digital form, collecting IP addresses and associated actions, reading cookies, or gathering usage data from a device (e.g., a fitness tracker) or application.

From the data subject

This requirement necessitates a certain contextual relationship between the action of collecting data and the physical or digital presence of the data subject. This includes personal data that: a data subject consciously provides to a data controller (e.g. when completing an online form); or a data controller collects from a data subject by observation (e.g. using automated data capturing devices or data capturing software such as cameras, network equipment, Wi-Fi tracking, RFID or other types of sensors).

At the time

The information must be given "at the time data is obtained", i.e. prior to the beginning of the processing operations.

Provide

The verb "provide" does not entail a physical action on the part of the controller, such as handing the notice to the data subject in person, but requires nonetheless a certain proactivity. The attention of the data subject should be drawn on the existence of the notice, which must be easily accessible and distinguishable from other information, such as the terms of use of a website or the clauses of a contract. In accordance with Article 12(1) GDPR, and depending on the specific case, the so-called privacy notice can be provided in written or electronic form, as an annex to a contract, a hard-copy document or an online multilayered document. To avoid discrepancies and ensure a uniform and sufficient level of information of the data subjects, the EU legislator did not leave the content of such information to the discretion of controllers. Hence, Article 13(1) GDPR meticulously lists which elements must be provided to the data subjects when personal data are obtained.

(a) Identity and contact details of the controller

The first piece of information that must be provided to the data subject is the identity and contact details of the controller. This information is a prerequisite for the data subject to be able to get in touch in the controller and further exercise their GDPR rights, if needed. The contact details should ideally include “different forms of communications with the data controller (e.g. phone number, email, postal address, etc.)”.

In practice, however, a controller should always provide at least an email address, especially in case of digital services. This conclusion is supported by logical and systematic reasons. Firstly, it is neither realistic nor compatible with the obligation to facilitate as required by Article 12(2) GDPR to require a data subject residing in Europe to contact a far-away controller via regular mail in order to exercise their GDPR rights. Secondly, according to Article 12(3) GDPR, the data subject has the right to submit their request in electronic format, which would not be possible without an email address. Thirdly, depending on the location of the controller, various practical obstacles would arise, including the slowness of regular mail, especially when back-and-forth communication with the controller is necessary. Moreover, such means could entail significant costs for the data subject whilst the exercise of GDPR rights is in principle "free of charge" (Article 12(5) GDPR).

Some controllers, rather than directly providing the data subject with their contact details, offer instead an online contact form. In order to be able to submit such contact form, the data subject is usually required to fill in some mandatory fields, such as a name, email address or the nature of the request. While some contact forms require minimal information and therefore make it easy for the data subject to contact the controller, others may require specific information such as a login, a customer ID or a contract number, which not all data subjects have, thereby making it difficult or even impossible to contact the controller.

Example: XXX

The online contact form is not an alternative to the contact details required by Article 13(1)(a) of the GDPR. Rather, it is an additional means that the controller may provide to facilitate - and certainly not hinder - contacts with the data subject. Moreover, while some contact forms show the address email of the controller (either directly in the form, or subsequently by sending a copy of the message to the data subject's email address), other forms do not provide the actual contact details of the controller. In the latter case, the controller would thus simply not fulfill its obligation under Article 13(1)(a) GDPR, given that the online contact form would merely consist in a contact method, rather than in a contact detail.

(b) Contact details of the data protection officer

In some instances, controller must designate a Data Protection Officer (DPO) who has the duty to oversee the processing activities conducted by the controller and to act as a point of contact for the data subjects. The contact details of the DPO should include information allowing data subjects to reach the DPO in an easy way. This may include a postal address, a dedicated telephone number, and/or a dedicated e-mail address. In addition to this, for purposes of communications with the public, the controller could also provide these contact details in the form of a dedicated hotline or a dedicated contact form addressed to the DPO on the organisation’s website. With respect to the online contact form, however, compliance with Article 13(1)(b) GDPR would require at minimum that the actual contact details of the DPO are also made visible to the data subject, either within the form or somewhere else.

(c) Purposes and legal basis

Article 13(1)(c) provides that controllers should provide the purposes for which the personal data are processed, as well as the corresponding legal basis. The legal basis must necessarily be found either in Article 6 GDPR or, where special categories of personal data are processed, in Article 9 GDPR. In exceptional cases where personal data relating to criminal matters are being processed (e.g. copy of the criminal record of a job applicant), the controller should also indicate, in addition to the legal basis applicable under Article 6 GDPR, what is the relevant EU or Member State law allowing such processing to be carried out.

Controllers are therefore bound to identify the different legal bases on which they rely for processing the personal data, and link them to the purpose of the processing. Data subjects should therefore be provided with a comprehensive overview of the different processing activities that the controller intend to conduct, as well as their respective purpose and legal basis. This obligation stems from the GDPR’s transparency obligations in Article 5(1)(a) GDPR and is supported by statements made by the WP29 in its guidelines on consent, and on transparency. Where a single controller processes many different categories of personal data for various purposes, it may become difficult for the data subject to understand which legal basis applies for which processing purpose. A controller that would be too unspecific would however breach its obligation under Article 13(1)(c) GDPR and possibly also under Article 5(1)(a) GDPR, which enshrines the principle of transparency.

Example: XXX

In practice, to reconcile the obligation to provide both complete and concise information to the data subjects, many controllers provide this information in the form of a table with different rows and columns clearly distinguishing between the different purposes of the processing and their corresponding legal basis. This table may be added within the privacy notice of the controller, or as an annex to it.

(d) Legitimate interests

When a controller rely on a legitimate interest for the processing of personal data, as provided for under Article 6(1)(f) GDPR, the data subjects must be properly informed about the nature of that specific interest, as required by Article 13(1)(d) GDPR.

Example: A controller, on the basis of a legitimate interest, processes the IP address of data subjects to redirect them to a website corresponding to the latter's geographical location (e.g. website.de for data subjects located in Germany and website.fr for data subjects located in France). The controller's specific interest behind that processing should be clearly explained in the privacy notice (e.g. ensuring that the products on the website are available and can be delivered in a given country).

Understanding the legitimate interest of the controller can be seen as a prerequisite for a data subject to be able to exercise other rights, such as the right to object to the processing under Article 21 GDPR. With this information, the data subject can indeed assess whether the interest invoked by the controller is truly legitimate and if the processing is proportionate, taking into account the objective pursued by the controller, and the impact that it can have on his/her own rights and interests. If the data subject finds that the processing is disproportionate, he or she may exercise the right to object. As a matter of best practice, controllers should include this information in the table listing the different purposes of the processing and their corresponding legal basis. If the legal basis is Article 6(1)(f) GDPR (i.e. 'legitimate interest'), the controller should define this interest. If the information provided is incomplete or unclear, the controller can be fined for breach of Article 13(1)(d) GDPR.

EDPB: The WP29 furthermore considered that, as a matter of best practice, the controller should also provide the data subject with the information from the balancing test, which the controller must normally carry out under Article 6(1)(f) GDPR before collecting the personal data.

(e) Recipients

Article 13(1)(e) GDPR provides that when controllers disclose personal data to internal or external recipients, they should identify such recipients. The term "recipient" is defined in Article 4(9) paragraph 1 as any entity to which personal data are disclosed. It is not necessary for the recipient to be a third party as defined in Article 4(10). Therefore, the obligation to provide information also applies to data flows between different, separate organizational units within the controller's organization. This includes processors, which are also considered recipients.

Example: In a privacy notice addressed to the employees of a company, all recipients of the employee's data should be identified, such as the HR manager of that company or an external payroll service provider.

The level of details that must be provided under Article 13(1)(e) GDPR with respect to the identity or category of recipients is not entirely clear. Yet, in accordance with the principle of fairness, it is generally agreed that controllers must provide information on recipients which is the most meaningful for data subjects. In practice, this will generally require the controller to name the relevant third party recipients, so that the data subjects is aware of the persons with whom their data will be shared externally. If it is not possible to identify all the recipients (either because their identity may regularly change, or because the list would be overwhelmingly long), the controllers should at least identify the categories of recipients of the personal data. In such case, the WP29 considers that this information should be as specific as possible by including a reference to the activities they carry out, the industry, sector/sub-sector and the location of the recipients.

Example: A controller is located in Austria: the HR manager of the controller; the HR department of the controller's affiliate in Belgium; the competent Austrian tax authorities; a payroll service provider located in Luxembourg; an IT maintenance service provider located in Germany; etc).

As a matter of best practice, and to ensure that the information is both complete, concise and intelligible, controllers can establish a table of recipients, where the different recipients of the personal data are named, or —if categories of recipients are mentioned instead — their sectoral qualification and location is clearly indicated.

(f) International transfers

Article 13(1)(f) GDPR covers information on transfers of personal data to international organisations or third countries, i.e. any country located outside of the European Economic Area. In case of data transfers to third countries, controllers should inform data subjects about the existence of such transfers, name all the relevant countries, and specify the safeguards relied upon.

Example: A controller transfers personal data to a business partner located in Japan, it must list Japan as being one of the transfer location, and mention whether such transfer is based on the Commission's adequacy decision between the EU and Japan, or on standard contractual clauses signed with the data importer.

Besides mentioning the third countries or international organizations where data importers are located, the controller must also inform the data subject about the means by which to obtain a copy of the applicable safeguards. For example, if the applicable safeguard is an adequacy decision adopted by the Commission pursuant to Article 45 GDPR, the controller could add an hyperlink redirecting the data subject towards the relevant decision as published on Eur-lex (the official website of EU legislation). Or, if the applicable safeguard is a transfer agreement signed by the controller and the data importer containing the standard contractual clauses referred to in Article 46(2)(c) GDPR, the controller could state that the data subjects may obtain a copy of the agreement upon request, for example by sending an email to the controller or its DPO.

It is worth noting at this stage that data importers are necessarily recipients of personal data in the sense of Article 4(9) GDPR. Hence, all data importers to which personal data are transferred should have already been identified by the controller pursuant to Article 13(1)(e) GDPR, as discussed here above. For the sake of clarity, a controller may thus decide to include the information on data transfers in the table listing the various recipients of the personal data, and in particular the location of the data importer as well as the applicable safeguard.

(2) Obligation to provide further information

The second paragraph of Article 13 provides for an additional set of information that must be provided to the data subjects at the time of the collection of the personal data. The distinction between the set of mandatory information listed in first paragraph and in the second paragraph of Article 13 GDPR does not seem to be grounded in any material considerations, or have any practical consequences for the controllers or for the data subjects. In both paragraphs, the expression "the controller shall (...) provide" is used, thereby making the obligation to provide each set of information equally binding. Furthermore, no additional requirement is laid down with respect to the timing or format in which the set of information listed in the second paragraph of Article 13 GDPR must be provided. Finally, the same sanction can be imposed on a controller for a violation of Article 13 GDPR, regardless of whether it concerns information under Article 13(1) or Article 13(2) GDPR. Both paragraphs can therefore be regarded as equally important in terms of information obligations.

(a) Retention period

Article 13(2)(a) GDPR provides that the controller must inform the data subjects regarding the period for which the personal data will be stored (i.e. the 'retention period' or 'storage period'). If it is not possible for the controller to give a specific date or amount of time (for example, because the retention period may vary from one case to another), the criteria used to determine that period should at least be given.

Example: A controller selling goods online could either indicate that the personal data of the data subject will be stored in the customer database "for 1 year after collection of the data", or "for a period of 3 months from the day of delivery of the good, unless the good is returned, in which case this period is of 1 month from the day of receipt of the returned good".

By making it mandatory for the controller to establish clear retention periods, Article 13(2)(a) GDPR gives concrete expression to the principle of storage limitation enshrined in Article 5(1)(e) GDPR. The underlying logic behind both that principle and provision is to prevent controllers from storing personal data indefinitely after the purposes of the processing have been achieved. In accordance with Article 5(1)(b) and (d) GDPR, when a controller reaches the end of a retention period, the personal data should either be deleted or fully anonymised (in which case, they would no longer qualify as 'personal data' in the sense of the GDPR). By contrast, archiving personal data, even in a pseudonymised or encrypted form, does not amount to deletion or anonymization. Keeping personal data in digital or physical archives still amount to storing them.

Example: A controller states that the retention period of the personal data is 5 years, "after which the data will be archived". This would breach the data minimisation principle. Rather, the archiving period should be included within the retention period.

As different categories of personal data may be needed for shorter or longer periods of time, depending on the purpose of the processing, controllers should distinguish between those categories and stipulate the applicable retention period for each of them. As a matter of best practice, this information can be provided in the form of a table, or included in the table referencing the categories of data, the purposes of the processing and their respective legal basis. Furthermore, the retention periods - or the criteria used to calculate them - should be specific enough for the data subjects to be able to at least form an idea of how long their personal data will be kept before being deleted or anonymised.

Example: It would not be sufficient for the data controller to generically state that personal data will be kept as long as necessary for the legitimate purposes of the processing. Similarly, if a controller provides that the data will be stored to comply with a legal obligation, it should specify which legal obligation it refers to.

(b) Information about data subject's rights

The controller should inform the data subject about their rights under data protection law, and in particular their right to access, rectification, erasure, restriction of processing, data portability and their right to object. Strictly speaking, it is not enough to merely inform a data subject about the existence of those rights, the controller should also include “a summary of what each right involves and how the data subject can take steps to exercise it and any limitations on the right”. Controllers can enumerate these rights in the privacy notice and then refer the data subjects to an annex or another page where those rights and the manner in which they can be exercised are explained in more detail. In addition to this, the GDPR requires controllers to explicitly bring the right to object to the data subject’s attention at the latest at the time of first communication with the data subject, in a clear manner, and separately from any other information. This can be done, for example, the first time an email is sent to the data subject in the context of direct marketing.

(c) Information about the right to withdraw consent

According to Article 13(2)(c), the controller must inform the data subject about the existence of the right to withdraw consent at any time, when the legal basis for the processing of the personal data was the consent of the data subject. As a matter of best practice, the information regarding the right to withdraw consent should be clearly indicated in the privacy notice of the controller (or in a similar document), and also at the time consent is obtained from the data subject. That way, the attention of the data subjects is drawn to the fact that the processing operation at stake relies on their consent, and that they have the right to put an end to such processing at any time if they change their mind. Besides, in light of the principle of fairness and the various provisions on consent in the GDPR, the possibility to withdraw consent should be given to the data subject every time the latter is being actively tracked or contacted on the basis of such consent.

Example: A data subject subscribes to a newsletter or marketing mailing list. The possibility to unsubscribe from such list should be given to the data subject within every email or communication sent to him on the basis of such consent. Similarly, website visitors should be able to disable cookies as easily as agreeing to cookie usage, and the possibility to withdraw that consent should be given for the entire duration of the browsing session (for example, by clearly displaying a pop-up badge on every page of the website, on which the data subject can click to disable cookies).

(d) The Right to Lodge a Complaint

Article 13(2)(d) GDPR provides that the data subject should be specifically informed about the existence of the right to lodge a complaint with a supervisory authority. The complaint may be filed, inter alia, with the supervisory authority in the Member State of the data subject's habitual residence, place of work or of an alleged infringement of the GDPR.

(e) Contractual or Statutory Requirement

Article 13(2)(e) GDPR provides that the controller must inform the data subject whether the provision of personal data is a statutory or contractual requirement, or a requirement necessary to enter into a contract, as well as whether the data subject is obliged to provide the personal data, and the possible consequences of failure to provide such data.

As a way of illustration, an online shop may require the name and postal address of a customer because it is necessary for the performance of the contract, more particularly for the delivery of the good. Similarly, online forms should clearly identify which fields are “required”, which are not, and what will be the consequences of not filling in the required fields. Also, for certain job positions or professional qualifications, a controller may be required by law to verify that the applicant does not have any criminal record. Failure to provide such data may bar the data subject from obtaining that position or qualification.

When providing personal data is a legal or contractual requirement, this should be brought to the attention of the data subject. It should also be clearly indicated whether failure to provide such information will have negative consequences for the data subject, such as the impossibility to enter into a contract or be offered a job position. Controllers who abuse from their position of power by obliging a data subject to provide personal data when the latter are not required by law or necessary for the performance of a contract may however be in breach of the GDPR, and in particular of the conditions to obtain valid consent (Article 7 GDPR), or of the principle of lawfulness, fairness and transparency (Article 5(1)(a) GDPR) and of the provision relating to valid consent.

EDPB: The EDPB has already stated for example that so-called 'cookies walls', which prevent access to a website if the users do not accept cookies, with no other reasonable alternative, are not a valid method to obtain the 'freely given' consent of data subjects.

(f) Automated Decision-Making

Article 13(2)(f) GDPR provides that the data subject should be informed about the existence of automated automated-decision making (including profiling), as referred to in Article 22(1) GDPR.

Automated decision-making ... referred to in Article 22(1) and (4)

In short, automated decision-making (hereafter, ADM) qualifies as such under the GDPR when three constitutive elements can be identified: (i) a decision; (ii) taken solely by automated mean (i.e. without any human involved in the decision-making process); (iii) which produces legal effects or similarly significant effects on the data subject.

Example: A recruiter relies on a smart algorithm to select the best profile, among a pool of candidates, for a job offer, the use of such a smart algorithm will qualify as ADM under the GDPR, both for the data subject who has been selected, and for the data subjects who have been rejected.

At least in those cases

The information Article 13(2)(f) GDPR refers to must also be provided by the controller in case Article 22(1) GDPR does not apply, namely in cases of ADM that is not as impactful as required under Article 22(1) GDPR.

WP29: “[i]f the automated decision-making and profiling does not meet the Article 22(1) definition it is nevertheless good practice to provide the above information. In any event the controller must provide sufficient information to the data subject to make the processing fair, and meet all the other information requirements of Articles 13 and 14.”

By calling the provision of the information “good practice”, the Working Party seems to imply that the disclosure of information relies only on the good will of the controller. This interpretation is not supported by the system of the GDPR. Article 15(1)(h) GDPR refers to the automated decision-making including profiling as “processing”. As such, ADM, including profiling has to comply with all general principles of the GDPR, and in particular, personal data must be processed “lawfully, fairly and in a transparent manner in relation to the data subject” (Article 5(1)(a) GDPR). In commenting Article 13(2)(f), the EDPB confirms such reading by highlighting the “general principle that data subjects should not be taken by surprise by the processing of their personal data, [and that this] equally appl[ies] to profiling generally (not just profiling which is captured by Article 22), as a type of processing.” In other words, the Working Party clarifies that ADM including profiling, are typical processing operations under Article 4(2) GDPR and, as such, must always be disclosed to the data subject to the extent necessary “to ensure fair and transparent processing taking into account the specific circumstances and context in which the personal data are processed.”

Thus, in application of the above general GDPR principles, such information should not be seen as a mere “good practice”. Rather, it is a real obligation. In other words, the phrase “at least in those cases” means that the basic information regarding ADM and profiling must be provided regardless of the requirements of Article 22(1) and 22(4) GDPR being met. If those requirements are met, involving more impactful processing, additional “meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject” shall also be provided.

Meaningful information about the logic involved

As made clear by Article 13(2)(f) GDPR, in the event a controller relies on an ADM, the data subjects must be informed about it. More particularly, the controller is under the duty to provide the data subject with "meaningful information" about the logic involved, the significance and the (possible) consequences of this ADM on him or her. The use of the term "meaningful" has triggered a lot of debates among scholars, as to whether Article 13(2)(f) GDPR would provide a reinforced right to information when it comes to ADM, if not an ex post 'right to explanation' or 'right to understand' once this provision is read in combination with Article 22(3) GDPR and Recital 71 GDPR.

WP29: The controller should inform the data subject in simple ways about the rationale behind the ADM including profiling but not necessarily give a ”complex explanation of the algorithms used or disclosure of the full algorithm”. Furthermore, “[t]he controller should provide the data subject with general information (notably, on factors taken into account for the decision-making process, and on their respective ‘weight’ on an aggregate level)”

The rationale behind this reinforced right to information lies in the complexity of algorithms and machine-learning, which sometimes operate in obscure ways, and may not be perceivable or understandable for data subjects. Given that the purpose of that provision is to ensure that the data subject obtains "meaningful information" about the ADM, simply disclosing the code behind the ADM or providing a complex explanation of the algorithms would in principle not be suitable or sufficient. Rather, the controller should highlight the criteria on the basis of which the decision is made, so that the data subject can understand the main reasons behind the decision. In line with Article 12(1) GDPR, such information should be concise yet complete, intelligible, and given in clear and plain language.

Example: XXX

Significance and Envisaged consequences

Furthermore, as part of the extended obligation to provide information, the controller is required to inform the data subject about the significance and envisaged consequences of the processing. These two terms, which are likely synonymous, pertain to the decision that is made or prepared based on the data processing. The controller must describe what will be decided upon based on the data processing, what decision-making options are available, and how processing results may impact or potentially lead to certain decisions.

Example: XXX

As a matter of best practice, controllers should thus fully understand how the ADM function themselves, in order to be able to provide the required information. Ideally, the controller would adopt a layered approach, first focusing on the logic involved, and subsequently highlighting the significance and envisaged consequences of the processing of different categories of data within the ADM process.

(3) Information on the Further Processing of Personal Data

Article 13(3) GDPR covers situations where a controller decides to process personal data for a novel purpose. More specifically, under this provision, a controller who intends to process personal data for a purpose that had not been primarily envisaged, must inform the data subject about the new purpose prior to that further processing. In practice, this would mean that controllers must update their privacy notice (and, ideally, notify those changes to the data subjects) prior to using the personal data in pursuit of this new objective. In this respect, the processing of personal data for purposes other than those for which the personal data were initially collected are allowed only where the new processing operation is compatible with the purposes for which the personal data were initially collected.

Example: XXX

In such a case, no legal basis separate from that which allowed the collection of the personal data is required. To appreciate the compatibility of various purposes, the controller should take into account, among others, the existence of a link between the original and additional purpose, the general context in which the data are processed, and also the reasonable expectations of the data subjects. As a general rule, further processing for scientific or historical research purposes, or further processing for statistical purposes should be considered to be compatible lawful processing operations. Hence, if a controller, after having collected personal data and processed them for business purpose, intends to keep a certain category of data for statistical purposes, it should update its privacy policy to include this new purpose, as well as all the relevant information which must accompany this new entry (e.g. storage period; recipient of the personal data (for example, if the statistics are collected or analyzed by a third party; etc).

(4) Exemptions

Article 13(4) GDPR covers situation where the data subject was already provided with the information, either because the controller has already provided it in the past, or because a third party did it on its behalf (for example, a processor). In that scenario, of course, the controller is exempted from the obligation to provide the same information a second time.

Decisions

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