Article 18 GDPR

← Article 18 - Right to restriction of processing →
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 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

Recital 67: Right to Restriction of Processing

Methods by which to restrict the processing of personal data could include, inter alia, temporarily moving the selected data to another processing system, making the selected personal data unavailable to users, or temporarily removing published data from a website. In automated filing systems, the restriction of processing should in principle be ensured by technical means in such a manner that the personal data are not subject to further processing operations and cannot be changed. The fact that the processing of personal data is restricted should be clearly indicated in the system.

Recital 156: Processing of Personal Data for Archiving Purposes in the Public Interest, Scientific, Historical Research or Statistical Purposes

The processing of personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes should be subject to appropriate safeguards for the rights and freedoms of the data subject pursuant to this Regulation. Those safeguards should ensure that technical and organisational measures are in place in order to ensure, in particular, the principle of data minimisation. The further processing of personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes is to be carried out when the controller has assessed the feasibility to fulfil those purposes by processing data which do not permit or no longer permit the identification of data subjects, provided that appropriate safeguards exist (such as, for instance, pseudonymisation of the data). Member States should provide for appropriate safeguards for the processing of personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes. Member States should be authorised to provide, under specific conditions and subject to appropriate safeguards for data subjects, specifications and derogations with regard to the information requirements and rights to rectification, to erasure, to be forgotten, to restriction of processing, to data portability, and to object when processing personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes. The conditions and safeguards in question may entail specific procedures for data subjects to exercise those rights if this is appropriate in the light of the purposes sought by the specific processing along with technical and organisational measures aimed at minimising the processing of personal data in pursuance of the proportionality and necessity principles. The processing of personal data for scientific purposes should also comply with other relevant legislation such as on clinical trials.

Commentary

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 GDPR right.

The right to restriction of processing 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 only applies during a limited period (the 'restriction period'), at the end of which the controller is no longer bound to limit the processing to storage. The length of this restriction period will vary from one case to another, as further explained below.

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 invoked in four different situations by the data subjects: accuracy of personal data, unlawful processing, legal claims and objection to processing under Article 21 GDPR. As further detailed below, 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 rectification of the personal data. By doing so, immediate risks pertaining to the continuous processing of inaccurate personal data can be mitigated. 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 chooses to requests restriction of the processing instead the erasure of the personal data under Article 17 GDPR. In such a 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.The exercise of the right of restriction should automatically exclude any other type of operation on the data. The doctrine, however, suggests specifying the intention to exclude deletion to avoid any kind of misunderstanding with the controller.

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.

(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 the 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 establish, exercise or defend themselves in the context of a legal claim. 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.

Example: following the end of a work relationship, a data subject exercise their 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.

(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

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 than storage 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). In other words, similarly to most data protection rights, 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).

European Union Agency for Fundamental Rights and Council of Europe, Handbook on EU data Protection Law, 6.1.4. Right to restriction of processing, 2018 edition.