Article 2 GDPR
Legal Text
1. This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system.
2. This Regulation does not apply to the processing of personal data:
- (a) in the course of an activity which falls outside the scope of Union law;
- (b) by the Member States when carrying out activities which fall within the scope of Chapter 2 of Title V of the TEU;
- (c) by a natural person in the course of a purely personal or household activity;
- (d) by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.
3. For the processing of personal data by the Union institutions, bodies, offices and agencies, Regulation (EC) No 45/2001 applies. Regulation (EC) No 45/2001 and other Union legal acts applicable to such processing of personal data shall be adapted to the principles and rules of this Regulation in accordance with Article 98.
4. This Regulation shall be without prejudice to the application of Directive 2000/31/EC, in particular of the liability rules of intermediary service providers in Articles 12 to 15 of that Directive.
Relevant Recitals
Commentary
Article 2 GDPR sets out the material scope of the GDPR. Paragraph 1 clarifies that the Regulation applies to any processing of personal data by automated means or to the non-automated processing of personal data that is or is intended to be stored in a filing system. Paragraph 2 provides for exemptions that exclude the applicability of the GDPR, such as data processing relating to activities outside the scope of European law or relating to purely personal or domestic activities. Paragraph 3 confirms the validity of sector-specific data protection laws for the processing carried out by European institutions provided that these regulations are brought into compliance with the GDPR. Finally, Paragraph 4 clarifies that the rules of Directive 2000/31/EC are not affected by the provisions of the GDPR.
(1) Material scope
The Regulation applies to any processing of personal data by automated means or to the non-automated processing of personal data that is, or is intended to be, stored in a filing system.
Processing
The term 'processing' is defined, and further discussed, in Article 4(2) GDPR. In general, processing includes any operation or set of operations performed on personal data. This includes everything from collection to storage and deletion. As long as personal data exists, it is usually also processed.
Example: A company is processing information about customers in a digital spread sheet. While the entering of personal data and most use is analogue, the storage in the spread sheet is processing by automated means.
Personal data
The material scope requires the data in question to be 'personal data'. This term is defined, and further discussed, in Article 4(1) GDPR.
Any information that relates to an identified or identifiable natural person falls under the GDPR, this also includes so-called 'pseudonymised data'. However, truly anonymous data and data not relating to a person is not regulated by the GDPR.
Example: A company runs two databases. The first database holds information to manage machines in a production plant, there is no information relating to people. The second database holds information on employees. Only the second database falls under the GDPR.
Option 1: Processing wholly or partly by automated means
The expression 'automated means' is not defined in the GDPR. It should be understood broadly as including all procedures in which at least part of the data processing is carried out automatically.[1]
The data processing must be 'fully' or 'partially' automated. The GDPR does not define the type of automation further, and instead takes a technologically neutral approach. A data processing activity is understood as partially automated when it is carried out partly manually and partly automatically. For example, when personal data is manually entered into a digital database, or if several data processing operations, some of which are carried out manually and some of which are automated, are sufficiently closely linked in a logical process.[2] In practice, this means that any processing of personal data in a digital format must be seen as automated means and usually falls under the GDPR. This gives the GDPR a very wide scope.
Example: A company is processing information about customers in a digital spread sheet. While the entering of personal data and most use is analogue, the storage in the spread sheet is processing by automated means.
Option 2: Part of a filing system
Additionally, the GDPR applies to non-automated processing of personal data if the personal data forms part of a filing system, or is intended for this purpose. In other words, if the data is intended as part of a filing system, but is not processed by automated means, the collection of such data will constitute a processing operation even before it is organized into a filing system. The concept of 'filing system' is defined in Article 4(6) GDPR and consists of any structured set of personal data which are accessible according to specific criteria.
Example: A doctor writes health information onto a form. The form is stored in the hospital's old paper filing system, where each patient's papers are stored according to surname and first name of the patient.
While paper filing systems are largely replaced by automated systems, they still exist for historic files and in certain contexts, such as the health care system, public registries or legal archives. The GDPR continues to protect personal data in such filing systems, as they were traditionally covered by European data protection laws, such as Directive 95/46/EC.
Case Law: In C-25/17 Jehovan todistajat (also known as 'Jehovah’s Witness') the concept of a ‘filing system’ under the Directive 95/46/EC has been considered by the CJEU. In this case, the Jehovah’s Witness Community used a form to collect or process personal data in the course of their door-to-door preaching, without adhering to the applicable data protection law.[3] The processing of the personal data was not carried out by automated means, so the question arose as to whether the data processed formed part of, or was intended to form part of, a filing system. The Court accepted a broad definition of filing system by pointing out that the previous Directive 95/46 (as Article 2(1) GDPR)[4] does not put down any specific requirement in term of its structure or form.[5] The Court concluded that the definition of 'filing system' is fulfilled when “data are structured according to specific criteria which, in practice, enable them to be easily retrieved for subsequent use. In order for such a set of data to fall within that concept, it is not necessary that they include data sheets, specific lists or other search methods”.[6]
(2) Exemptions
If the elements in Article 2(1) are fulfilled, the GDPR applies unless the processing falls under one of the exemptions named in Article 2(2)(a) to (d) GDPR.
(a) Activities which fall outside the scope of union law
The first category of exemptions relates to processing for activities which fall 'outside the scope of Union law'.[7] This paragraph is more of a clarification that the EU does not overstep its jurisdiction. The wording is not particularly helpful because it is not immediately apparent what the 'scope of Union law' is. However, this provision has very limited impact in practice, as almost any commercial activity falls within the scope of Union law.
One of the main competences of the European Union is to establish an internal market in which, among other things, the free flow of data is guaranteed. It follows that all data processing activities, whether directly or indirectly related to this purpose, are covered under Union law (and therefore excluded from this exemption). As such, processing activities carried out by individuals and companies will almost always be regulated by Union law (insofar as they are useful or instrumental to the internal market) and therefore by the GDPR.
Under Article 4(2) TFEU “national security remains the sole responsibility of the individual Member States”. Thus, all activities related to national security, such as data processing by intelligence services, are excluded from the scope of EU law. Recital 16 confirms this interpretation and adds that “the processing of personal data by the Member States when carrying out activities in relation to the common foreign and security policy of the Union” is also excluded from the scope of the Regulation (see subsection (b) below).
(b) EU Common foreign and security policy
Article 2(2)(b) excludes the applicability of the GDPR for the processing of personal data carried out by the Member States when performing activities as part of the Union’s common foreign and security policy (see Chapter 2 of Title V of the TEU). More precisely, according to Article 39 TEU, the Council shall adopt a decision laying down the rules relating to the protection of individuals with regard to the processing of personal data by the Member States when carrying out such activities. These rules have not yet been adopted. However, Articles 7 (respect for private and family life) and 8 (data protection) of the EU Charter of Fundamental Rights remain applicable.[8]
(c) Processing by a natural person in the course of purely personal or household activity
Article 2(2)(c) GDPR reaffirms the so-called 'household exemption' which already existed under Directive EC/95/46. According to this provision, the GDPR does not apply where processing is carried out by a natural person for purely personal or household activities, where they would otherwise be controllers and would have to fully comply with the GDPR.
As private individuals engage in more and more data processing operations, this exception becomes increasingly relevant. On the one hand an individual publishing information online became a rather common phenomenon - on the other hand it may be more damaging to have personal details exposed on a popular platform than to have it stored in a rather irrelevant commercial database. Given that everyone has a fundamental right to privacy and data protection under Articles 7 and 8 of the Charter, the European legislator has chosen a rather narrow exemption for private individuals.
Natural person
In order for the exemption to apply, it is essential that the processing be performed by a 'natural person'. Thus, processing by legal entities, whatever legal form they may have (including NGOs, Foundations, Trusts and alike), is not covered by the exemption and remains subject to the GDPR, even if they do not pursue any commercial interest.[9]
Purely personal or household activities
The GDPR does not provide a specific definition of 'personal' and 'household' activities. The definition is clearly narrower than the European 'consumer' definition, hence consumers can be controllers or processors that have to fully comply with the GDPR, if they process personal data beyond a purely personal or household activity. In addition to personal activities a household activity may allow processing that goes beyond one individual, such as a commonly used computer or software within a household.
Case Law: Different factors to distinguish the 'private' from the 'non-private' can be drawn out from the existing case-law: According to the CJEU in C-25/17 Jehovan todistajat (also known as 'Jehovah’s Witness'), these requirements must be interpreted as covering only activities that are carried out in the context of the private or family life of individuals. In that connection, “an activity cannot be regarded as being purely personal or domestic where its purpose is to make the data collected accessible to an unrestricted number of people or where that activity extends, even partially, to a public space and is accordingly directed outwards from the private setting of the person processing the data in that manner”.[10] According to C-101/01, Bodil Lindqvist, the publication of personal data on a blogging site made available to an unlimited number of people would obviously not be subject to the household exemption.[11] This interpretation was confirmed by the Court in C-212/12 Ryneš, where it took a narrow view of the exemption. Indeed, a camera system installed on a family home for the purposes of protecting the property was not considered to fall under the exemption insofar as it also recorded a public space.[12]
In addition, Recital 18 provides some examples of exempted activities such as:
- personal correspondence,
- keeping of addresses, or
- social networking and online activity as long as they are purely personal or a household activity.
The reference to social networks as a type of activity exempted from the GDPR seems to slightly depart from previous case law of the CJEU in C-101/01, Bodil Lindqvist[13] and seems to indicate that sharing of information with a limited number of close friends can still be seen as a purely personal activity. This would reflect today's reality on various online platforms to a certain extent.
In practice, there seem to be three main criteria that can help in the assessment:
- First, one has to assess the space of the processing. Activities that take place in a private space can be considered 'personal'. Public places or generally available websites are excluded from the application of the household exemption.
- Second, the social aspect of the processing is relevant. One needs to review the relationship between the natural person who carries out the processing and the data subjects and the extent of the group of subjects who have access to the personal data.
- Third, one has to determine the purpose pursued by the controller. According to Recital 18, these activities must have no connection with anything 'professional' or 'economic'. Consequently, if the activities pursue such purposes, the exemption will not apply.
By applying the aforementioned criteria, scholars have convincingly argued that the number of potential recipients of personal data should be verified in order to apply the exemption. Interpreted in this way, the GDPR would not apply to processing operations concerning social network use when they involve a limited number of recipients or readers. Conversely, if the processing or message is available to an indeterminate number of people, the household exemption will not apply.[14]
Scope of exemption
Recital 18 also clarifies that exemptions under Article 2(2) GDPR do not extend to controllers or processors that provide the means for purely personal or household processing. It seems equally obvious that a social network would not be exempt from the GDPR, just because some users may fall under the household exemption.
Example: A user processed her private phone book in a cloud drive to sync it across devices. She has a shared calendar, that is also used by other family members. She is exempt from the GDPR under the household exemption. The commercial provider of the cloud drive still falls under the GDPR.
(d) Prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties
The prevention, investigation, detection or prosecution of criminal offences, the execution of criminal penalties and the prevention of threats to public security describes the broad area of criminal law, public order and security laws. Processing of personal data in this area is exempt from the GDPR. The exemption is however limited to competent authorities under national law. When the GDPR was implemented the parallel Law Enforcement Directive (EU) 2016/680 was passed and to regulate this subject matter. The Directive has to be implemented in national law of each Member State. In many cases, Member States choose to have a single law to implement aspects of the GDPR and the Law Enforcement Directive. Article 3(2) of the previous Directive 95/46/EG already exempted the rather sensitive area of criminal law from the application.
Example: The use of CCTV to prevent thefts by a shop owner is covered by the GDPR. The further use of CCTV data by the policy after a robbery is regulated by the Law Enforcement Directive as transposed in national law.
(3) Union institutions
Where data is processed by EU institutions, bodies, offices and agencies, Regulation (EC) No 45/2001 applies.
Regulation (EU) 2018/1725 of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data ('EUDPR') revises Regulation (EC) No. 45/2001 to align it with the GDPR. Chapter IX of the EUDPR outlines general rules on data protection applicable to EU law enforcement activities within the scope of Chapter 2 of Title V of the TFEU.
The European Data Protection Supervisor ("EDPS") is the relevant supervisory authority for EU institutions.
(4) Directive 2000/31/EC
The GDPR applies without prejudice to the application of the e-Commerce Directive 2000/31/EC. Specific reference is made to Articles 12 to 15 e-Commerce Directive, which concern the liability of intermediary service providers in situations where they merely transmit information, ‘cache’ information, or merely store information. Intermediary services still fall under the GDPR for their own processing, but are generally not liable for information that passes their systems. As this is a general rule, this seems to be a mere clarification. From 17 February 2024 onward Regulation (EU) 2022/2065 (the 'Digital Servies Act') will partly replace the e-Commerce Directive.
Decisions
→ You can find all related decisions in Category:Article 2 GDPR
References
- ↑ Bäcker, in Wolff, Brink, BeckOK Datenschutzrecht, Article 2 GDPR, margin number 2 (C.H. Beck 2021, 38th edition) or Kühling/Raab in Kühling/Buchner, DSGVO, Article 2 GDPR, margin number 15 (C.H. Beck 2020, 3rd edition).
- ↑ Bäcker, in Wolff, Brink, BeckOK Datenschutzrecht, Article 2 GDPR, margin number 3 (C.H. Beck 2021, 38th edition).
- ↑ CJEU, Case C-25/17, Jehovan todistajat, 10 July 2018, (available here).
- ↑ The GDPR definition restates the Article 2(c) Directive 95/46/EC definition of the notion verbatim. Tosoni, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 4(6) GDPR, p. 140 (Oxford University Press 2020).
- ↑ In particular, the Directive did not foresee that the “the personal data at issue must be contained in data sheets or specific lists or in another search method, in order to establish the existence of a filing system”. In that case, the records created by the Jehovah’s Community were collected as a memory aid and included name, surname and geographical position in order to facilitate the organisation’s subsequent visits.
- ↑ CJEU, Case C-25/17, Jehovan todistajat, 10 July 2018, margin number 62 (available here). Also see Opinion of Advocate General Kokott, 8 May 2008, Sautmedia, C‑73/07, margin number 34 (available here); Opinion of Advocate General Sharpston, 15 October 2009, Commission v Bavarian Lager, C-28/08 P, margin numbers 117-128 (available here); Opinion of Advocate General Kokott, 20 July 2017, Nowak, C-434/16, margin number 69 (available here); Opinion of Advocate General Mengozzi, 1 February 2018, Jehovan todistajat, C-25/17, margin numbers 53-59 (available here).
- ↑ The competences of the Union are set out in the EU treaties. In particular, Title 1 of the TFEU sets out the exclusive competence of the Union. While the competences of the EU are carefully shared between Member States and the EU, the GDPR simply differentiates between non-Union law and Union law.
- ↑ Bäcker, in Wolff, Brink, BeckOK Datenschutzrecht, Article 2 GDPR, margin number 11 (C.H. Beck 2020, 38th edition).
- ↑ Paal, in Paal, Pauly, DS-GVO BDSG, Article 2 GDPR, margin number 14 (C.H. Beck 2021, 3rd edition).
- ↑ CJEU, Case C-25/17, Jehovan todistajat, 10 July 2018, margin number 42 (available here).; in the same direction CJEU, Case C-73/07, Satakunnan Markkinapörssi and Satamedia, 16 December 2008, margin number 44 (available here).
- ↑ CJEU, C-101/01, Lindqvist, 6 November 2003, margin number 47 (available here).
- ↑ CJEU, Case C-212/13, Ryneš, margin numbers 31 and 33 (available here).
- ↑ Especially, CJEU, C-101/01, Lindqvist, 6 November 2003, margin number 47 (available here).
- ↑ Bäcker, in Wolff, Brink, BeckOK Datenschutzrecht, Article 2 GDPR, margin numbers 18-19 (C.H. Beck 2020, 38th edition).
