Article 12 GDPR
Legal Text
1. The controller shall take appropriate measures to provide any information referred to in Articles 13 and 14 and any communication under Articles 15 to 22 and 34 relating to processing to the data subject in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child. The information shall be provided in writing, or by other means, including, where appropriate, by electronic means. When requested by the data subject, the information may be provided orally, provided that the identity of the data subject is proven by other means.
2. The controller shall facilitate the exercise of data subject rights under Articles 15 to 22. In the cases referred to in Article 11(2), the controller shall not refuse to act on the request of the data subject for exercising his or her rights under Articles 15 to 22, unless the controller demonstrates that it is not in a position to identify the data subject.
3. The controller shall provide information on action taken on a request under Articles 15 to 22 to the data subject without undue delay and in any event within one month of receipt of the request. That period may be extended by two further months where necessary, taking into account the complexity and number of the requests. The controller shall inform the data subject of any such extension within one month of receipt of the request, together with the reasons for the delay. Where the data subject makes the request by electronic form means, the information shall be provided by electronic means where possible, unless otherwise requested by the data subject.
4. If the controller does not take action on the request of the data subject, the controller shall inform the data subject without delay and at the latest within one month of receipt of the request of the reasons for not taking action and on the possibility of lodging a complaint with a supervisory authority and seeking a judicial remedy.
5. Information provided under Articles 13 and 14 and any communication and any actions taken under Articles 15 to 22 and 34 shall be provided free of charge. Where requests from a data subject are manifestly unfounded or excessive, in particular because of their repetitive character, the controller may either:
- (a) charge a reasonable fee taking into account the administrative costs of providing the information or communication or taking the action requested; or
- (b) refuse to act on the request.
The controller shall bear the burden of demonstrating the manifestly unfounded or excessive character of the request.
6. Without prejudice to Article 11, where the controller has reasonable doubts concerning the identity of the natural person making the request referred to in Articles 15 to 21, the controller may request the provision of additional information necessary to confirm the identity of the data subject.
7. The information to be provided to data subjects pursuant to Articles 13 and 14 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 shall be machine-readable.
8. The Commission shall be empowered to adopt delegated acts in accordance with Article 92 for the purpose of determining the information to be presented by the icons and the procedures for providing standardised icons.
Relevant Recitals
Commentary
Criticism of lengthy, hardly comprehensible privacy policies, confusing online forms and controllers that cannot be easily reached is omnipresent. Article 12 GDPR is meant to take care of these issues and ensure frank and transparent information, as well as the efficient exercise of the data subject’s rights.
Article 12 GDPR requires similar standards than other EU law, such as the Unfair Terms Directive 93/13/EEC that limits the use of unclear, unfair or disadvantageous contractual terms or the requirement of any service provider to provide an email address to communicate 'rapidly' and 'efficiently' under Article 5(1)(c) eCommerce Directive 2000/31/EC.
To ensure that the rights of data subjects are not undermined, Article 12 regulates clarity and accessibility standards regarding communications with the data subject. The provisions of Article 12 largely apply to Articles 13, 14, 15 to 22 and 34 GDPR and thereby form horizontal rules, that must always be kept in mind when these Articles are applied. This horizontal application also means, that Article 12 GDPR covers situations where the controller must actively provide information (such as under Articles 13, 14, or 34 GDPR) as well as situations where the controller must be able to respond to requests or the exercise of rights by the data subject quickly and efficiently. Therefore, Article 12 GDPR must be read in conjunction with the context and purpose of the relevant Article.
Example: While any information must be "concise" it does not mean that a copy of personal data under Article 15(3) GDPR should not be fully provided, but it does mean that a privacy policy under Article 13 should not be too long.
Article 12 GDPR may be limited by Union or national Law in accordance with Article 23 GDPR.
(1) Clear and transparent communication
Article 12(1) GDPR requires controllers to take appropriate measures to provide[1] any information under Articles 13, 14, 15 to 22 and 34 GDPR[2] in a manner that is concise, transparent, intelligible and easily accessible, using clear and plain language.[3]
The provision set out two main requirements. Firstly, the controller must precisely present the information in terms of content (preciseness requirement). Secondly, the information must be presented in a manner that is easily understandable to the data subject without requiring excessive cognitive effort or time (comprehensibility requirement).[4]
Appropriate measures
Complying with the requirements of Article 12(1) GDPR may be challenging. For example, deciding what is appropriate to satisfy both the preciseness and the clarity requirement in a privacy information will not always be easy. As a matter of fact, there may even be conflicts between preciseness and clarity, as the former usually pushes in the direction of more complexity, whereas the latter requires a certain degree of simplification.[5] In certain circumstances, for instance, a given processing may not be easy to explain, especially where a considerable amount of data is processed and numerous actors are involved in the processing chain.
The wording of Article 12(1) GDPR allows the controller some leeway to pick an "appropriate" measure. This may be simple texts in standard situations and a very elaborate system in complex situations. Drafting information that is short and concise is not easy, especially when it comes to complex data processing. Complying with Article 12(1) GDPR requires substantial effort, skill and innovative thinking.
Example: A small business may just have a box with a sign saying "drop your business card here to get updates via email" and some additional small print to satisfy Article 12(2) GDPR. A controller of a complex processing system may need to draft a detailed privacy policy, explainer videos for complex issues, multiple layers of information to ensure "appropriate" information.
Importantly, the complexity of processing is not a justification for reducing the transparency standards. Complex processing operations will usually require more effort to make transparency efforts "appropriate" in relation to the interference with the rights of a data subject.
EDPB Guidelines: The [controller's] assessment should aim at choosing the most appropriate method for providing all information covered by this right, depending on the specific circumstances in each case. As a consequence, a controller who processes a vast amount of data on a large scale must accept to undertake great efforts to ensure the right of access to the data subjects in a concise, transparent, intelligible and easily accessible form, by using plain and clear language.[6]
Article 12 GDPR does not allow to limit the rights of data subjects due to the complexity of a controller's system. If it is not possible to process personal data while also complying with the transparency obligations under Article 12 GDPR, then the system can simply not be used to process personal data legally.
Content
The controller is obliged to provide all the information the law requires in connection with the specific Article of the GDPR. In all cases, the controller's effort must be to include all the information it is required to provide. This may be a major effort.
Example: A controller does not have sufficient information about the functioning of software it uses. It will be difficult for the controller to fulfil its duty to inform the data subject. Consequently, in order to comply with transparency duties, it would have to request information from the manufacturer of the software or refrain from using the software if the information is not provided.[7]
The controller's obligation covers, where appropriate, measures to correctly detect the content of the request and assign it to the responsible department. The same goes for internal policies and technical equipment enabling the controller's staff to retrieve the data and perform any required operation (e.g. copy, rectification, deletion).
Concise
Information about the processing must be presented concisely. This is intended to prevent controllers from providing an overly lengthy or convoluted description of the processing activity, as data subject usually will not read multiple pages of the text. Thus, controllers have a positive obligation to prevent data subjects from experiencing information overload.[8] There are many linguistic approaches to achieve concise information, without loosing content.
In the area of privacy policies, the use of a layered privacy statements[9] is a common approach to present the most relevant section to the data subject rather than providing them with an unconscionable notice. A layered approach may however not be used to hide the more problematic processing in a lower layer. The most relevant information or any unexpected processing should be easily available.
EDPB: It should be noted that layered privacy statements/ notices are not merely nested pages that require several clicks to get to the relevant information. The design and layout of the first layer of the privacy statement/ notice should be such that the data subject has a clear overview of the information available to them on the processing of their personal data and where/ how they can find that detailed information within the layers of the privacy statement/ notice.[10]
Transparency
In the context of Article 12 GDPR, the main goal of transparency is the accurate and fair understanding[11] of the information and communication provided to the data subjects under Articles 13, 14, 15 to 22 and 34 GDPR. This is needed because, otherwise, it would be impossible for them to fully enjoy the different rights granted by those provisions.[12] Transparency requires a fair and honest communication of the processing operation. Withholding of hiding information is the antithesis of "transparent" information. Not having the relevant information, is not an excuse to not provide it to the data subject, but requires further research.
Example: A controller uses the term “To allow you a better experience, we may share some information with our partners”, when in fact the data is sold to a specific data broker for the purpose of advertisement. This would not be a “transparent” explanation of the intended processing. A data subject may easily exercise a right to erasure against a known recipient, but is not able to exercise his or her rights when only informed about undisclosed "partners".
Intelligibility
Information is “intelligible” when it is understandable by a member of the intended audience. In some cases there may be multiple audiences that a controller addresses, including people with disabilities, different language skills or education. Therefore, a data controller must have an understanding of the people that it collects information about, which it should use to determine what they are likely to understand.
Example: A controller dealing with professionals working in a specific area may rely on the fact that they understand the relevant professional terminology. A controller that processes personal data of average consumers would have to avoid any jargon. A controller catering to audiences where a relevant number of data subjects does not speak the local language as the first language may need to use simplified language.
In many cases the intelligibility of a text can be objectively tested by asking members of the target audience if they understand the information. There is a growing movement towards simplified writing, which can provide relevant information to ensure understandable texts in each language. Intelligibility is also a relevant factor, when various formats are used, like videos, animations or "gamified" information, as such information may not be accessible to all data subjects, such as blind or elderly data subjects.
EDPB: If controllers are uncertain about the level of intelligibility, they can test these through mechanisms such as, inter alia, user panels, readability testing, as well as formal and informal dialogue with industry groups, consumer advocacy groups and regulatory bodies (Article 35(9) GDPR).[13]
Use of languages
The requirement of "intelligibility" also affects the language used for the communication. Whilst the GDPR does not expressly regulate the use of languages, it is clear that the level of intelligibility of information is directly linked to the user’s capacity of understanding a certain language as a native or non-native speaker. This can be separated into information that must be actively provided by the controller and passive communication initiated by the data subject (such as the exercise of a right).
Active communication by the controller
From a factual perspective, controllers that know that a relevant part of their data subjects do not speak the dominant language in a country and also offer products in different languages, may need to provide the relevant information in these languages too. Given that the right to data protection is a fundamental right, not limited to EU citizens or residents, this may also require translation of documents to non-EU languages.
The GDPR does not clearly limit the efforts that a controller has to take when it comes to translations, but it must take "appropriate" measures to provide the information to everyone. If the data subjects are not known, a minimum would be to provide information in all languages that the service of the controller is offered in. At the same time, it does not seem "appropriate" to demand that any possible data subject must get a translation.
Example: A German company mainly employs persons from former Yugoslavia. Most employees only speak a couple of words of German. The human resource department should provide information under Article 13 GDPR in Serbo-Croatian, if this ensures that all employees understand the notice.
Example: A hotel in Venice must not provide a privacy policy in all possible languages of any possible tourist, but it would be "appropriate" to provide it in common international languages like English, French or Spanish. It may also consider the language of the most common visitors, which may be Chinese for a hotel focusing on the Chinese market.
Providing information that is "intelligible" also means that translations must be accurate and understandable. A mere auto-translation may not be sufficient for a complex privacy policy.
EDPB: Where the information is translated into one or more other languages, the data controller should ensure that all the translations are accurate and that the phraseology and syntax makes sense in the second language(s) so that the translated text does not have to be deciphered or re-interpreted. (A translation in one or more other languages should be provided where the controller targets data subjects speaking those languages.)[14]
Passive communication initiated by the data subject
If a data subject exercises his or her rights under Articles 13, 14, 15 to 22 and 34 GDPR in another language than used by the controller, the controller must respond in the relevant language if the data subject objectively does not understand the communication or information in the provided language. The requirement is that the communication must be "intelligible" for the data subject. If a data subject merely feels that it would be more convenient to communicate in his or her mother tongue, but understands the language provided by the controller, the information is still "intelligible". For unfounded or excessive request, see also paragraph 5 below.
Clear and plain language
The requirement for clear and plain language means that information should be provided in as simple a manner as possible, avoiding to downplay or 'reframe' processing operations, as well as complex sentence and language structures.[15] Text that may be understandable for lawyers, compliance experts or technicians, may not be understandable for average users with limited language skills or limited education. For most languages, guidelines exist on how to simplify legal language.
It is common that controller information is drafted to ideally avoid taking a clear position. While there are historic reasons for this approach,[16] the GDPR clearly requires to plainly say which processing is undertaken and what is not done. Cloudy wording, that tries to camouflage the processing, or aims at marketing purposes rather than at providing a plain explanation, would violate this provision. The information should be concrete as well as definitive, and should neither be phrased in abstract or ambivalent terms, nor leave room for diverging interpretations.
Common misunderstanding: Common qualifiers such as “may”, “might”, “some”, “often” and “possible” should be avoided. Equally, open-ended lists, usually stating with wording like “such as” are not clear and plain. Where data controllers opt to use vague language, they should be able to, in accordance with the principle of accountability, demonstrate why the use of such language could not be avoided and how it does not undermine the fairness of processing.[17]
Information that suggests that processing goes further than in reality ("overclaiming") also constitutes false and thereby unclear information. While such approaches are often used "just to be sure" that every processing operation is covered, overclaiming leads to a situation where the data subject cannot be sure that the statement is fully accurate. Overclaiming can also lead to inconsistencies between information provided ex-ante under Article 13 and 14 GDPR and information provided ex-post under Article 15 GDPR.
Information addressed to children
Article 12(1) highlights that the above requirements are especially relevant when information is addressed to children. In the larger context, this is just a specific situation where information must be provided in a form that is understandable for the relevant audience.
Form
Easily accessible form
The "easily accessible" element implies that the data subject should not have to actively search for the information. It should be readily visible and clear to them where and how they can access the information. This can be achieved through various means, such as providing the information directly to them, linking to it, clearly indicating its location, or providing it as an answer to a natural language question. Examples of how this can be implemented include online layered privacy statements/notices, FAQs, contextual pop-ups that activate when a data subject fills in an online form, or interactive digital interfaces like chat-bots.
EDPB: For apps, the necessary information should also be made available from an online store prior to download. Once the app is installed, the information still needs to be easily accessible from within the app. One way to meet this requirement is to ensure that the information is never more than “two taps away” (e.g. by including a “Privacy”/ “Data Protection” option in the menu functionality of the app). Additionally, the privacy information in question should be specific to the particular app and should not merely be the generic privacy policy of the company that owns the app or makes it available to the public.[18]
Easy access to information also plays a major role whenever physically impaired people (e.g. blind or hearing-impaired people) are concerned. From this perspective, alongside with more traditional formats, the controller must be able to use alternative means of communication which suit the data subject's specific needs.
In writing or by other means
Under Article 12(1) GDPR, information “shall be provided in writing, or by other means, including, where appropriate, by electronic means.” Written form is therefore the default option. However, in addition to the written form, other means can be used, and that includes electronic writing, videos, info-graphics, non-verbal methods and oral information.
In writing
The most common form of providing relevant information is clearly in writing. In offline context this will usually be on paper. There is no duty to provide the information in a format that can be kept by the data subject, it must only be "provided". It is also possible to provide information on a sign or other such format.
Electronic means
In addition to the traditional written form, the GDPR allows for providing information in electronic form. The use of the disjunctive phrase "or", followed by the expression "where appropriate", suggests that the written form may be abandoned in certain circumstances, and that the controller has some discretion in this regard.[19]
In case of online activities, the WP29 suggested the implementation of layered privacy statements which allow website visitors to navigate to particular aspects of the relevant privacy statement that are of most interest to them. The use of a layered approach is nonetheless not the only available option. Other electronic means include “just-in-time” contextual pop-up notices in a form or flow, 3D touch or hover-over notices, and privacy dashboards. Non-written electronic means which may be used in addition to a layered privacy statement might also include videos and smartphone or IoT voice alerts.[20]
Other means
“Other [not necessarily electronic] means” might include cartoons, info-graphics or flowcharts.[21] The method chosen by controllers must fit the particular circumstances. For example, if a certain device does not have a screen, controllers can provide a printed privacy statement inside the device package or redirect the data subject to the URL website address or QR code where the privacy notice can be found.[22] However, such means must be reasonably accessible to data subjects of all ages, ability and technical expertise.
In many cases, a combination of multiple means (e.g. a written policy and parallel graphics, videos or in-line information) will be best suited to ensure broad access and the best use of alternative forms of information.
Oral information
Finally, the GDPR also allows data subjects to request information to be provided orally. Controllers "may" do so under two conditions: (i) the data subject must request oral information or communication and (ii) the controller must have otherwise verified the data subject’s identity.[23] The second requirement, only refers to cases where data subject's authentication is necessary. There is no duty by the controller to provide information orally.[24]
Example: A data subject wants to know the results of a medical exam. The staff member at the clinic should verify the identity of the person. The information can then be provided orally.
(2) Facilitation of the exercise of rights and identification
Under Article 12(2), first sentence, GDPR the controller must facilitate the data subject in the exercise of their GDPR rights under Articles 15 to 22 GDPR.
Shall facilitate the exercise of rights
The term "facilitate" codifies a proactive approach by the controller who must take any reasonable action to ease the exercise of GDPR rights.[25] The Regulation does not define the notion of “facilitation”, but warns that “modalities" should be provided.[26] These “modalities” should cover the whole range of activities a controller undertakes to fully address a GDPR right request. In particular, controllers must demonstrate that "the way to handle the request aims to give the broadest effect to the right [...] and that it is in line with its obligation to facilitate the exercise of data subjects rights (Art. 12(2) GDPR)."[27]
Among the others, data subjects should be allowed to reach the controller “in an easy way (a postal address, a dedicated telephone number, and a dedicated e-mail address)”.[28] Once the request is received, the controller should be able to handle it internally as efficiently as possible, and ensure the request be handled by the appropriate department. Moreover, data subject authentication should be free of unnecessary burdens. The method used for authentication should be "relevant, appropriate, proportionate and respect the data minimisation principle."[29]
The data subject can choose the format in which it wants to send any request to the controller, as long as it is a common format (such as emails, postal letters, phone calls, PDFs and alike) and it is not sent to a clearly irrelevant contact point.
Any subsequent interaction with the data subject must once again be marked by the principle of fairness and must not result in unnecessary "ping-pongs" whose only goal is to prevent the data subject from obtaining a full and timely response.[30]
Impossible identification
The final part of Article 12(2) GDPR states that the controller shall not refuse to act on a request of the data subject to exercise their rights, unless it demonstrates that it is not in a position to identify him or her. However, the data subject can provide additional information enabling their identification (Article 11(2) GDPR). Controllers should inform the data subject of the nature of what is required to allow identification. This provision, prevents the controller from adopting obstructive tactics relating to alleged "difficulties of identification" unless these actually exist. All attempts to verify the identity of a data subject which require excessive efforts by the latter (while adding nothing in terms of security) become inadmissible - and do not constitute "facilitation".
Example: A user signs up to a social network by providing their email and generating a login password. After a few years of use, they decide make an access request under Article 15 GDPR via email. Upon receipt of the email, the controller requests the user to send a scan of their identification document to verify their identity. Requiring IDs when they are not necessary constitutes a breach of the obligation to facilitate the exercise of rights, as the controller could implement less burdensome and instrusive verification mechanisms, such as asking the user to log in or sending a verification code to the email address.[31]
(3) Time limit and form of the response
Under Article 12(3) GDPR, the controller must inform the data subject about the "action taken" following receipt of a request under Articles 15 to 22 GDPR.
Information on action taken
Depending on the specific request, the required "action" will consist of retrieving, arranging and disclosing personal data (for instance, the copy of data under Article 15(3) GDPR). In others, the action takes place within the controller's IT systems (data rectification and deletion, under Articles 16 and 17 GDPR). In any case, controllers shall provide the data subject with information about the action taken, therefore a response is always necessary.
Without undue delay, but no longer than one month
This must happen as soon as possible ("without undue delay") and in any event within one month. This means that if a controller can reasonably take action within a day or week, it cannot wait for a full month to act. It is a matter of the individual case if a controller acted “without undue delay”. While acute staffing shortage, the need to consult external legal council and alike can mean that an action takes longer than a couple of days, only stating to act when the one month deadline approaches would violate the law.
The EDPB confirms that the period in question should be calculated according to Regulation (UE) 1182/71. The deadline for data subject's request starts upon receipt of the application. Receipt occurs when the request comes within the controller's sphere of influence and can be noted, such as through digital storage or placement in the controller's mailbox.[32]
Example: An organisation receives a request on 5 March. If they can respond within a couple of business days, they must do so. The maximum time limit of one month starts from the same day. This gives the organisation an ultimate deadline until and including 5 April to comply with the request, at the latest.[33]
Deadline may be extended
The one-month deadline may be extended by two months "where necessary". The necessity should be evaluated in relation to the complexity and number of requests. The wording implies that such requirements must exist at the same time. A typical example would be unexpected waives of requests after a data breach or other event that lead unusual numbers of data subjects to contact a controller.[34] Either way, when a controller is unable to comply with the one-month deadline, it must inform the data subject of the reasons for the delay within one month of receiving the request.
Corresponding means
The final sentence of Article 12(3) GDPR specifies that where the data subject makes the request by electronic means, and unless otherwise requested by them, the information shall be provided in a commonly used electronic form - "where possible". In other words, answering by electronic means is not an absolute obligation for the controller. Nevertheless, Recital 63 GDPR expressly indicates that - again where possible - the controller should be able to provide remote access to a secure system which would provide the data subject with direct access to their personal data. This is clearly intended to encourage controllers to facilitate the exercise of access rights via so-called “Download Tools” and alike.
On the other hand, the wording "unless otherwise requested by them" makes clear that the default option for the form of the response - commonly used electronic form - can be changed if the data subject explicitly asks for another format. For example, the data subject can ask for a paper letter even if they made the request by electronic means.
(4) Failure to act on the request
If a controller does not act on the data subject's request, it must explain why this is the case as soon as possible, and at the latest within one month of receiving the request. It must also tell the data subject about their right to lodge a complaint with a supervisory authority or to seek a judicial remedy.
These are obviously cases in which one or more of the prerequisites of the GDPR or the right exercised do not exist, or there are other grounds for exclusion of the right. To give a few examples, the controller may reject the request if he considers that no personal data is being processed, thus failing to apply the GDPR in its entirety (Article 4(1) and (2) GDPR). Or if the request is 'manifestly unfounded or excessive' (Article 12(5) GDPR). Again, the controller may reject a request for access, or a part thereof, in order to defend "the rights and freedoms of others" (Article 15(4) GDPR) or, a request for deletion, on the basis of one of the cases provided for in Article 17(3) GDPR.
In such circumstances, the communication must convey "the reasons for not taking action". It is therefore necessary to at least indicate the legal title on which the rejection. Based on the above-mentioned examples, Articles 4(1), 12(5), 15(4) or 17(3) GDPR.
(5) Free of charge
Under Article 12(5) GDPR, controllers may generally not charge data subjects for the provision of information under Articles 13 and 14 GDPR, or for communications and actions taken under Articles 15-22 GDPR (data subject rights) and Article 34 GDPR (communication of personal data breaches to data subjects). The principle of transparency requires that the provision of such information is not made conditional upon a financial transaction. There are exceptions to this rule, which should nonetheless be interpreted narrowly to avoid undermining the principle of transparency and gratuity of the request.[35] For instance, if the request is manifestly unfounded or excessive, controllers may either charge a reasonable fee or refuse to act on the request. In these cases, controllers must be able to demonstrate the manifestly unfounded or excessive character of a request (Article 12(5), third sentence, GDPR). Hence, controllers should maintain a proper documentation of the underlying facts.
Manifestly unfounded
A request is considered manifestly unfounded if it does not meet essential legal requirements and is therefore obviously unfounded.[36] For example, if an unauthorised person wants to assert the rights of a data subject, or when an individual requests the erasure of their personal data vis-à-vis a controller who has not stored any data concerning them.[37]
Excessive requests
There is no definition of the term “excessive” in the GDPR. On the one hand, the wording “in particular because of their repetitive character” in Article 12(5) GDPR suggests that the main scenario to which this limb applies is when a data subject uses the free rights under the GDPR to bombard the controller with requests. On the other hand, the qualifier “in particular” indicates that other reasons that might cause excessiveness are not excluded a priori.[38]
A data subject may nonetheless submit more than one request to a controller. In this case, it has to be assessed whether the threshold of reasonable intervals (see Recital 63) has been exceeded. Controllers must take into account the particular circumstances of the single case carefully. In general, “The more often changes occur in the database of the controller, the more often data subjects may be permitted to request access without it being excessive”.[39] That said, other factors such as the nature of the data, the purpose of the processing and whether the subsequent requests concern the same type of information or processing activities should all be taken into account.[40]
Another relevant factor is the nature of the communication channel between the data subject and controller. Taking the example of an access request, if it is possible to easily provide the relevant information by electronic means or by remote access to a secure system, which makes compliance simple for the controller, it is unlikely that repetitive requests can be regarded as excessive.[41]
(a) Reasonable fee
If information requests are manifestly unfounded or excessive, in particular due to their repetitive nature, the data controller may charge a reasonable fee. This exception must be interpreted restrictively in order to not excessively constrain data subjects’ right to information. Consequently, provided the request is not manifestly unfounded or repetitive, the controller cannot charge a fee even it was provided for in the contract terms. Controllers should inform data subjects of their intention to charge them a reasonable fee based on Article 12(5) GDPR before doing so, to allow them to decide whether they should withdraw their request to avoid being charged.[42]
(b) Refuse to act
Alternatively, if requests are manifestly unfounded or excessive, the controller can outright refuse to act on the request. For both of the aforementioned exceptions to the no-fee rule, the controller bears the burden of demonstrating the manifestly unfounded or excessive character of the request.
The relationship between these two options is not clarified by the GDPR. The wording of Article 12/5) GDPR seems to suggest that the controller has a free choice between the two alternatives. Nonetheless, it has been pointed out that a refusal to act can violate the good faith principle to the extent that the data subject offers to pay a reasonable fee.[43]
(6) Verifying the data subject
Controllers often reject data subjects’ requests because of alleged problems in identifying them and the risk of disclosing personal data to an unauthorised person which, for example, might contribute to identity theft. If the controller has reasonable doubts concerning the identity of a natural person making a request under Articles 15 to 21 GDPR, additional information may be requested to verify their identity. However, this cannot lead to excessive demands and to the collection of personal data which are not relevant or necessary to strengthen the link between the individual and the personal data requested.
EDPB: For instance, when a given processing operation begins with the storage of a cookie into the user's device, a controller cannot ask the data subject to provide IDs, signatures and in general anything that cannot help the identification purpose. However, if Mr. X tries to exercise his access right by e-mail or by regular mail, then in this context C will have no other choice to ask Mr. X to provide “additional information” (Art. 12(6)) in order to be able to identify the advertising profile associated with Mr. X. In this case, the additional information will be the cookie identifier stored in the terminal equipment of Mr. X.
In the context of online services, the data subject can be authenticated, inter alia, by sending a secret code, a link containing a unique token to their email address, or any other contact method used for the registration.[44] Further information about this can be found in the commentary under Article 11 GDPR.
(7) Standardised icons
Whilst it is one of the EDPB’s tasks under Article 70(1)(r) GDPR to provide the Commission with an opinion on the icons, it has not yet published such a document.
Information can also be provided visually, using certain kind of tools (e.g. icons, certification mechanisms, and data protection seals and marks). However, the use of icons should not replace the information needed by data subjects to enforce their rights, nor should they be used as a substitute to compliance with the controller’s obligations under Articles 13 and 14 GDPR. Instead, they could constitute an acceptable first layer of information. For example, an icon representing a lock might be used to signal that data is safely collected or encrypted.
The provision therefore has no practical relevance at this time.
(8) Code of icons
The Commission has the power to determine the information to be displayed by icons as well as the procedures for providing standardised icons. Its competence does not include the binding establishment of specific icons. Per Recital 166 GDPR, the process of developing a code of icons should involve the carrying out of consultations, and research on the efficacy of icons. Article 12(8) GDPR does not expressly specify whose responsibility it is to conduct such research, meaning standardised icons could come from either the Commission or standard-setting organisations.
Decisions
→ You can find all related decisions in Category:Article 12 GDPR
References
- ↑ Under Article 12(1), controllers must provide any information to the data subject. The verb "provide" makes it clear that the controller must take every step necessary to provide that information. In other words, the data subject need not make any special effort to "seek" the information to which it is entitled. On the contrary, the controller will provide data subjects with direct links to the information, or clearly signpost information as an answer to a natural language question (e.g. in an online layered privacy statement, in FAQs, by way of contextual pop-ups which activate when a data subject fills in an online form, in an interactive digital context through a chatbot interface, etc.). See, WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 8 (available here).
- ↑ Considered together, these provisions list all communication and information obligations the controller owes to the data subject.
- ↑ A "measure" is any method, internal process, policy or technical tool used by the controller during its processing operations. Within this wide category, the "measures" falling under the scope of Article 12(1) are just those whose goal is to provide the data subject with information and communications under Articles 13, 14, 15 to 22 and 34 GDPR. Hence, the "measures" under Article 12(1) form a stricter group than those mentioned, among the others, in Article 24 GDPR. In the latter case, measures concerned are all those used to ensure general compliance with the Regulation as a whole (and not only Articles 13-22, 34).
- ↑ Bäcker, in Kühling, Buchner, DS-GVO BDSG, Article 12, margin number 11 (C.H. Beck 2020, 3rd Edition).
- ↑ Bäcker, in Kühling, Buchner, DS-GVO BDSG, Article 12, margin number 12 (C.H. Beck 2020, 3rd Edition).
- ↑ EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), p. 40.
- ↑ Dix, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 12 GDPR, margin number 22 (C.H. Beck 2019).
- ↑ Heckmann, Paschke, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 12 GDPR, margin number 12 (C.H. Beck 2018, 2nd Edition).
- ↑ In an online context, the use of a layered privacy statement/notice will enable a data subject to navigate to the particular section of the privacy statement/ notice which they want to immediately access rather than having to scroll through large amounts of text searching for particular issues. See, WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 7 (available here).
- ↑ WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 19 (available here).
- ↑ Recitals 39 and 58 GDPR require that information must not only be clear, but also “easy to understand”. Along these lines, the CJEU criticised the behaviour of a controller "in the absence of any indications confirming that that clause was actually read and digested". See, CJEU, C‑61/19, Orange România, 11 November 2020, margin number 46 (available here).
- ↑ This provision reflects the German doctrine of informational self-determination, according to which substantive rights of data subjects can only serve their purpose when supported by clear information as well as proportionate and effective procedures. Polčák, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 12 GDPR, pp. 401-402 (Oxford University Press 2020). See, Polčák, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 12 GDPR, pp. 401-402 (Oxford University Press 2020).
- ↑ WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 7 (available here).
- ↑ WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 8 (available here).
- ↑ Best practices for clear communication should be followed regardless whether information is written, delivered orally, or by audio/audio-visual methods (including for vision-impaired data subjects).
- ↑ Especially the US legal situation, where only a false privacy claim can lead to prosecution, led to privacy policies of large tech providers that were so generic that any processing would always be covered and thereby save from enforcement. This approach has spread to Europe as well.
- ↑ WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 9 (available here).
- ↑ WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, pp. 37-38 (available here).
- ↑ Quaas, in BeckOK Datenschutzrecht, Article 12 GDPR, margin number 27 (C.H. Beck 2020, 43rd Edition).
- ↑ WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, pp. 11-12 (available here).
- ↑ WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 12 (available here).
- ↑ WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 12 (available here).
- ↑ Dix, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 12 GDPR, margin number 22 (C.H. Beck 2019).
- ↑ Bäcker, in Kühling/Buchner, DS-GVO, 3rd Edition, Article 12 GDPR, margin number 17 (C.H. Beck 2020).
- ↑ Paal, Hennemann, in Paal, Pauly, DS-GVO BDSG, Article 12 GDPR, margin number 45 (C.H. Beck 2021, 3rd ed.).
- ↑ This includes “mechanisms to request and, if applicable, obtain, free of charge, in particular, access to and rectification or erasure of personal data and the exercise of the right to object” (Recital 59).
- ↑ EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), p. 26 (available here).
- ↑ The WP29 also points out that, “[w]hen appropriate, for purposes of communications with the public, other means of communications could also be provided”. WP29, ‘Guidelines on Data Protection Officers (‘DPOs’)’, 16/EN WP243 rev.01, 5 April 2017, p. 13 (available here).
- ↑ If the controller imposes measures aimed at identifying "the data subject which are burdensome, it needs to adequately justify this and ensure compliance with all fundamental principles, including data minimisation and the obligation to facilitate the exercise of data subjects’ rights (Art. 12(2) GDPR)." See, EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), p. 25 (available here).
- ↑ EDPB: It is important to underline that the request for specification shall not aim at a limitation of the reply to the access request and shall not be used to hide any information on the data or the processing concerning the data subject. If the data subject, who has been asked to specify the scope of its request, confirms to seek all personal data concerning him or her, the controller of course has to provide it in full.
- ↑ EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), p. 26 (available here).
- ↑ While formal acknowledgment of a data subject's request under the General Data Protection Regulation (GDPR) may not be required, it is advisable for data subjects to be able to demonstrate that the controller has received their request. The GDPR encourages the exercise of data subject rights, so the burden of proof is not considered burdensome. For example, an email saved in the sent folder could serve as evidence of the request. In cases where requests are sent via ordinary mail, it may be beneficial to obtain proof of receipt, such as a letter with an acknowledgment of receipt, to demonstrate that the request was indeed received by the controller.
- ↑ EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), p. 26 (available here).
- ↑ Heckmann, Paschke, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 12 GDPR, margin number 33 (C.H. Beck 2018, 2nd Edition).
- ↑ EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), p. 53 (available here).
- ↑ In its Guidelines on access requests, the EDPB emphasises that “there is only very limited scope for relying on the «manifestly unfounded» alternative of Art. 12(5) in terms of requests for the right of access”. See, EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), p. 51 (available here).
- ↑ Heckmann, Paschke, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 12 GDPR, margin number 43 (C.H. Beck, 2nd Edition 2018).
- ↑ EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), p. 53 (available here).
- ↑ EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), p. 54 (available here).
- ↑ EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), p. 54 (available here, p. 54).
- ↑ Importantly, and once again, especially for what concerns access requests, the simple fact that it would take the controller a vast amount of time and effort to provide the information cannot on its own render the request excessive. See, EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), p. 55 (available here).
- ↑ EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 18 January 2022 (Version 1.0), pp. 56-57 (available here).
- ↑ Bäcker, in Kühling, Buchner, DS-GVO BDSG, Article 12, margin number 39 (C.H. Beck 2020, 3rd Edition).
- ↑ According to the WP29’s guidelines on the right to data portability, as endorsed by the EDPB, insofar as a digital communication channel already exists between the data subject and the controller, the latter must implement or re-use an authentication procedure in order to ascertain the identity of the data subjects requesting their personal data or exercising the rights granted by the GDPR. See, WP29 ‘Guidelines on the right to data portability’, 16/EN WP 242 rev.01, 5 April 2017, p.14 (available here).
