Article 18 GDPR
Legal Text
Article 18 - Right to restriction of processing
1. The data subject shall have the right to obtain from the controller restriction of processing where one of the following applies:
- (a) the accuracy of the personal data is contested by the data subject, for a period enabling the controller to verify the accuracy of the personal data;
- (b) the processing is unlawful and the data subject opposes the erasure of the personal data and requests the restriction of their use instead;
- (c) the controller no longer needs the personal data for the purposes of the processing, but they are required by the data subject for the establishment, exercise or defence of legal claims;
- (d) the data subject has objected to processing pursuant to Article 21(1) pending the verification whether the legitimate grounds of the controller override those of the data subject.
2. Where processing has been restricted under paragraph 1, such personal data shall, with the exception of storage, only be processed with the data subject's consent or for the establishment, exercise or defence of legal claims or for the protection of the rights of another natural or legal person or for reasons of important public interest of the Union or of a Member State.
3. A data subject who has obtained restriction of processing pursuant to paragraph 1 shall be informed by the controller before the restriction of processing is lifted.
Relevant Recitals
Commentary on Article 18
The right to restriction of processing is a right which allows data subjects to temporarily limit the type of processing operations that a controller can perform on their personal data. More specifically, when a data subject exercises the right to restriction of processing, the controller is only allowed to passively store the personal data, but can no longer share them, disclose them, erase them, or perform any other type of processing operation on them, unless a specific exception applies (e.g. consent of the data subject).
The right to restriction of processing was introduced in 2016 by the GDPR. Although it did not have any prior identical equivalent in EU law, an embryonic form of that right could already be found in Article 12(2) of Directive 95/46 (DPD). In particular, Article 12(2) DPD gave data subjects the possibility to request the 'blocking of data' in case the processing was unlawful. The DPD did not specify, however, the meaning of 'blocking' or what it would concretely entail for the controller of the personal data. The lack of clarity of that provision prompted the Commission to replace any reference to the 'blocking' of personal by a new and more specific right: the right to restriction of processing.
The right to restriction of processing can be invoked in four different situations by the data subjects, as further detailed below (see 'Legal Grounds'). Each of these situations is characterized by the existence of an ongoing claim or objection relating to the processing of the personal data. For example, it could be the case that the accuracy of the personal data is being contested. In that case, Article 18 GDPR offers data subjects with the possibility to temporarily restrict the processing of their inaccurate personal data by the controller, pending a final decision on their underlying claim. By doing so, any immediate risk pertaining to the continuous processing of inaccurate personal data can be temporarily mitigated.
Once activated, Article 18 GDPR entails a dual obligation on the part of the controller during the restriction period: (1) the obligation to store the personal data; and (2) the obligation not to perform any other operation on the personal data. The obligation not to process the personal data in any other way may however be tempered if an exception applies (e.g. the data subject explicitly consented to the controller processing the personal data for something else than storage during the restriction period).
The four legal grounds on the basis of which data subjects may exercise their right to restriction of processing will be discussed here below, following which the limited exceptions to this right will be analyzed.
(1) Legal Grounds
The right to restriction of processing can be effectively exercised by data subjects when one of the following grounds applies:
(a) Accuracy of Personal Data
Data subjects can exercise their right to restriction of the processing when it appears that their personal data are inaccurate and must be rectified. Data subjects have indeed a right to rectification of their personal data under Article 16 GDPR. The rectification of personal data may however take a shorter or longer period of time depending on the nature and amount of data, the diligence of the controller, etc. While awaiting the rectification of their personal data, data subjects may want to protect themselves from any adverse effect linked to the processing of their inaccurate data by restricting the type of operations that the controller can still perform on them. In that context, the right to restriction of processing can apply upon request of the data subject for the limited period of time during which a controller is verifying the accuracy and/or rectifying the personal data.
The right to restriction of processing may thus be exercised after or in parallel to the right to rectification. For example, if a data subject notices that a controller is processing inaccurate personal data, and that this may have an adverse effect on them (e.g. inaccurate bank account details which may lead to wrongful money transfers), they may invoke simultaneously Article 16 GDPR (right to rectification) and Article 18 GDPR (right to restriction) in order to request the controller to suspend the processing the personal data until the data has been corrected.
(b) Unlawful Processing
The right to restriction can also be exercised when it appears that a controller is processing personal data unlawfully, but the data subject opposes the erasure of the personal data and requests restriction of the processing instead. In that case, the purpose of exercising the right conferred by Article 18 GDPR is to put an end to the unlawful processing operation(s), while preventing the data controller from erasing the personal data. The data subjects may want to oppose the erasure of their personal data for different reasons, including the fact that they still need (a copy) of them for personal use. It might also be the case that the personal data constitute important evidence of the unlawful processing itself (e.g. health data which were collected without the consent of the data subject).
In that respect, it must be recalled that, in accordance with Article 4(1) GDPR, deletion of personal data is a processing operation as such. By exercising their right to restriction of the processing, data subjects are therefore automatically putting controllers under the obligation not to erase their data, pending clarification of the unlawful nature of the processing.
It is also interesting to note in this respect that data subjects have, in addition to the right to restriction, the right to object to the processing of personal data under Article 21 GDPR, which includes the right to object to the erasure of their data. Theoretically, data subjects could thus also prevent a controller from erasing their data by invoking Article 21 GDPR. One may then question the relevance or added-value of the right to restriction of the processing in the context of unlawful processing. It becomes however quickly apparent from a careful reading of Article 21 GDPR that the right to object can only be exercised where the controller is processing personal data either on the basis of (1) its legitimate interest (Article 6(1)(f) GDPR) or (2) the public interest (Article 6(1)(e) GDPR). Hence, data subjects may find themselves in a situation where the right to object does not apply, but the right to restriction of processing does. For example, if a controller is processing personal data for the performance of a contract under Article 6(1)(b) GDPR, data subjects cannot object to the erasure of their data on the basis of Article 21 GDPR. They may, however, exercise the right to restriction of processing in order to request the controller not to erase personal data, while addressing the potential unlawful character of such processing.
(c) Legal Claims
The third legal basis for exercising the right to restriction of processing concerns situations where the controller no longer needs the personal data, but the data subject might still want them for he establishment, exercise or defence of a legal claim. Once again, the right to restriction therefore offers the possibility for data subjects to prevent the erasure of their personal data by the controller. In this case, the data controller has to retain the personal data even though it might not need them anymore, in order to ensure the data subject's legitimate interests, and in particular the right of a data subject to gather information to defend themselves in the context of a legal claim. One may think, for example, of a data subject exercising his right to restriction of processing in order to prevent his prior employer from erasing personal data that are needed for his defence in the context of an action relating to unpaid wages or abusive dismissal.
The restriction period should normally last until the data subject has been able to retrieve a copy of the relevant data, or until the legal claims are established, exercised or defended.
(d) Objection to Processing
The fourth and last legal basis concerns situations where a data subject has objected to the processing of personal data on the basis of Article 21 GDPR, because the latter considers that the legitimate interests of the data controller in processing their personal data do not prevail over their interests, rights or freedoms. In parallel to exercising this right to object to the processing under Article 21 GDPR, the data subject can also rely on Article 18 GDPR to force the controller to limit the processing of personal data to passive storage, pending a final decision on the underlying objection.
To fully understand the relevance of this legal ground, it is first important to recall that the right to object as enshrined in Article 21 GDPR is not always absolute. As a matter of fact, data subjects may only object to the processing of their personal data in a limited number of situation, for example when the legal basis for such processing is a 'legitimate interest' invoked by the controller. By way of illustration, an insurance company could decide to monitor and collect information about insured persons who are suspected of insurance fraud based on the company's legitimate interest to prevent such fraud. In that case, however, it must be ensured that the interests or fundamental rights and freedoms of the data subjects do not prevail over the legitimate interest invoked by the controller. This balancing exercise, which is presumably incumbent on the controller, may however lead to divergences of opinion. Data subjects may thus decide to object to the processing of their personal data by arguing that their rights and freedoms override the interests of the controller. If a dispute ensues, it will ultimately be for the competent data protection authority or national court to determine whether the objection was justified. This, however, may take a more or less long period of time during which the data subjects may suffer harm. Hence, Article 18 GDPR may prove to be particularity useful in those instances since it confers to data subjects the right to request the controller to temporarily restrict the processing of their personal data, pending a final decision.
(2) Exceptions
As a general principle, once a request under Article 18 GDPR reaches a controller, the latter is bound to passively hold the personal data and not to process them in any other way. Similarly to most data protection rights, however, the right to restriction of processing is not absolute. Hence, exceptions to this general principle may apply, as further discussed here below.
Consent
A controller subject to a restriction request may still perform other processing operations than storage when this has been specifically allowed by the data subject. Data subjects can indeed consent to the processing of their personal data beyond passive storage after having exercised their right under Article 18 GDPR. As an illustration, one may imagine a data subject invoking Article 18 GDPR upon closing a bank account, in order to ensure that the bank does not delete important financial information relating to money transfers made in the last two preceding years. In parallel, however, the data subject may consent to the bank deleting data which are older than two years.
Legal Claims
A controller subject to a restriction request may decide to partly or fully reject that request, and therefore to continue processing the personal data of the data subject beyond passive storage when this would be necessary for the establishment, exercise or defence of legal claims. This exception may of course become problematic when unduly or excessively relied on by controllers. By invoking it, controllers can indeed easily defeat the very purpose of the right to restriction of processing, which was to provide data subjects with an easy and quick way to alleviate the immediate risks pertaining to the (unlawful) processing of (inaccurate) personal data by a data controller, pending verification of their original claim or objection. In the event a controller wrongfully relies on that exception, however, the latter may incur a fine, in accordance with Article 83(5) GDPR.
Protection of Others' Rights
A controller subject to a restriction request may decide to partly or fully reject that request, and therefore to continue processing the personal data of the data subject beyond passive storage when this would be necessary for the protection of the rights of another natural or legal person. This exception may of course become problematic when unduly or excessively relied on by controllers, as already explained above. In the event a controller wrongfully relies on that exception, however, the latter may incur a fine, in accordance with Article 83(5) GDPR.
Important Public Interest
A controller subject to a restriction request may decide to partly or fully reject that request, and therefore to continue processing the personal data of the data subject beyond passive storage when this would be necessary for reasons of important public interest of the EU or of a Member State. This exception may of course become problematic when unduly or excessively relied on by controllers, as already explained above. In the event a controller wrongfully relies on that exception, however, the latter may incur a fine, in accordance with Article 83(5) GDPR.
(3) Information of the Data Subject and of Recipients
The third paragraph of Article 18 GDPR specifies that a data subject who has obtained restriction of processing must be informed by the controller before the restriction of processing is lifted. This provides the data subject with the possibility to argue that the restriction period is not over yet, for example if the latter considers that the underlying request, claim or objection has not been properly addressed or solved.
Furthermore, granting restriction of processing imposes on the controller the obligation to notify any recipients to whom the personal data have been disclosed about the restriction, so that they can themselves adapt the processing of personal data to what is allowed and required (that is, in most case, passive storage of the personal data). See alsoArticle 19 GDPR.
Decisions
→ You can find all related decisions in Category:Article 18 GDPR
References
Hornung et al, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 18 GDPR (Beck 2019).
Scorza, in Riccio, Scorza, Belisario, GDPR e normativa privacy - Commentario, Article 18 GDPR (Wolters Kluwer 2018).
Gonzáles Fuster, in Kuner, Bygrave and Docksey, The EU General Data Protection Regulation (GDPR), A commentary, Article 18 GDPR (Oxford University Press, 2020).
