Article 10 GDPR: Difference between revisions

From GDPRhub
 
(38 intermediate revisions by 10 users not shown)
Line 185: Line 185:


== Legal Text ==
== Legal Text ==
<br /><center>'''Article 10: Processing of personal data relating to criminal convictions and offences'''</center><br />
<br /><center>'''Article 10: Processing of personal data relating to criminal convictions and offences'''</center>


Processing of personal data relating to criminal convictions and offences or related security measures based on Article 6(1) shall be carried out only under the control of official authority or when the processing is authorised by Union or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects. Any comprehensive register of criminal convictions shall be kept only under the control of official authority.
Processing of personal data relating to criminal convictions and offences or related security measures based on Article 6(1) shall be carried out only under the control of official authority or when the processing is authorised by Union or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects. Any comprehensive register of criminal convictions shall be kept only under the control of official authority.


== Relevant Recitals==
== Relevant Recitals==
<span id="r1"><div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;">
{{Recital/19 GDPR}}{{Recital/50 GDPR}}
<div>'''Recital 50'''</div>
<div class="mw-collapsible-content">
The processing of personal data for purposes other than those for which the personal data were initially collected should be allowed only where the processing is compatible with the purposes for which the personal data were initially collected. In such a case, no legal basis separate from that which allowed the collection of the personal data is required. If the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, Union or Member State law may determine and specify the tasks and purposes for which the further processing should be regarded as compatible and lawful. Further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes should be considered to be compatible lawful processing operations. The legal basis provided by Union or Member State law for the processing of personal data may also provide a legal basis for further processing. In order to ascertain whether a purpose of further processing is compatible with the purpose for which the personal data are initially collected, the controller, after having met all the requirements for the lawfulness of the original processing, should take into account, inter alia: any link between those purposes and the purposes of the intended further processing; the context in which the personal data have been collected, in particular the reasonable expectations of data subjects based on their relationship with the controller as to their further use; the nature of the personal data; the consequences of the intended further processing for data subjects; and the existence of appropriate safeguards in both the original and intended further processing operations.


Where the data subject has given consent or the processing is based on Union or Member State law which constitutes a necessary and proportionate measure in a democratic society to safeguard, in particular, important objectives of general public interest, the controller should be allowed to further process the personal data irrespective of the compatibility of the purposes. In any case, the application of the principles set out in this Regulation and in particular the information of the data subject on those other purposes and on his or her rights including the right to object, should be ensured. Indicating possible criminal acts or threats to public security by the controller and transmitting the relevant personal data in individual cases or in several cases relating to the same criminal act or threats to public security to a competent authority should be regarded as being in the legitimate interest pursued by the controller. However, such transmission in the legitimate interest of the controller or further processing of personal data should be prohibited if the processing is not compatible with a legal, professional or other binding obligation of secrecy.
== Commentary ==
</div></div>
Article 10 GDPR is a complementary provision to the Law Enforcement Directive (LED)<ref>[https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32016L0680 Directive (EU) 2016/680] of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data and repealing Council Framework Decision 2008/977/JHA.</ref>. It aims to ensure that criminal data processing is still carried out in accordance with the GDPR’s principles and with appropriate safeguards when the LED is not directly applicable. [[Article 2 GDPR|Article 2(2)(d) GDPR]] excludes any processing that falls under the scope of the LED from the scope of the GDPR. Article 10 GDPR is intended to extend the protection of the GDPR to the processing of certain criminal data that is not included in the scope of the LED. Specifically, this includes data that has the potential to lead to stigmatisation, which may lead to profound effects on different aspects of a data subjects' life due to its sensitive nature. For example, when data is inappropriately processed in the employment context.<ref>''Georgieva'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 10 GDPR, p. 388 (Oxford University Press, Oxford, 2020).</ref>
 
This position was affirmed by the Court of Justice in [[CJEU - C-439/19 - B v. Latvijas Republikas Saeima|Case C‑439/19,  ''Latvijas Republikas Saeima'']]. In this judgment, the Court noted that data processed under Article 10 GDPR warrants a higher standards of protection for processing and grant of access, as the data which falls under its scope has the potential to expose the data subject to stigmatisation and social disapproval. At paragraphs 74 and 75, the Court observed that the risk of stigmatisation in itself amounts to severe interference in the data subject's private and professional life for the purposes of Articles 7 and 8 of the Charter, consequently justifying stricter thresholds for processing.<ref name=":0">Case C‑439/19,  ''Latvijas Republikas Saeima'', paras 74-75. </ref>


<span id="r1"><div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;">
As a result, ''"''[u]''nder the principle of proportionality, limitations'' [to the the fundamental rights to respect for private life and to the protection of personal data] ''may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. They must apply only in so far as is strictly necessary and the legislation which entails the interference must lay down clear and precise rules governing the scope and application of the measure in question.''"<ref>Case C‑439/19,  ''Latvijas Republikas Saeima'', para 105.</ref>
<div>'''Recital 19'''</div>
<div class="mw-collapsible-content">
The protection of natural persons with regard to the processing of personal data 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 and the free movement of such data, is the subject of a specific Union legal act. This Regulation should not, therefore, apply to processing activities for those purposes. However, personal data processed by public authorities under this Regulation should, when used for those purposes, be governed by a more specific Union legal act, namely Directive (EU) 2016/680 of the European Parliament and of the Council (7). Member States may entrust competent authorities within the meaning of Directive (EU) 2016/680 with tasks which are not necessarily carried out for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and prevention of threats to public security, so that the processing of personal data for those other purposes, in so far as it is within the scope of Union law, falls within the scope of this Regulation.


With regard to the processing of personal data by those competent authorities for purposes falling within scope of this Regulation, Member States should be able to maintain or introduce more specific provisions to adapt the application of the rules of this Regulation. Such provisions may determine more precisely specific requirements for the processing of personal data by those competent authorities for those other purposes, taking into account the constitutional, organisational and administrative structure of the respective Member State. 3When the processing of personal data by private bodies falls within the scope of this Regulation, this Regulation should provide for the possibility for Member States under specific conditions to restrict by law certain obligations and rights when such a restriction constitutes a necessary and proportionate measure in a democratic society to safeguard specific important interests including public security and 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. This is relevant for instance in the framework of anti-money laundering or the activities of forensic laboratories.
=== Criminal “convictions” and “offences” ===
</div></div>
Article 10 GDPR allows for the processing of data relating to criminal convictions and offences. The term “convictions” makes reference to pronouncements of criminal penalties on perpetrators, instigators or assistants. Actors such as victims or witnesses are not included. However, there is discussion about whether suspects should be included.<ref>''Weichert'', in Kühling, Buchner, DS-GVO BDSG, Article 10 GDPR, margin number 6 (C.H. Beck 2020, 3rd Edition).</ref> The notion of “offence" must be interpreted according to Member State law. In addition, the CJEU has established three criteria that must be examined when determining what constitutes a criminal proceeding: the legal classification of the offence under national law, the nature of the offence and the nature as well as degree of severity of the penalty that the person concerned is liable to incur.<ref>CJEU, C‑489/10, 5 June 2012, Bonda, margin number 37 (available [https://curia.europa.eu/juris/document/document.jsf?text=&docid=123501&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2694396 here]). </ref>  


== Commentary ==
=== Conditions for the processing ===
However, any processing still needs to rely on a legal basis from [[Article 6 GDPR|Article 6(1) GDPR]] and comply with the principles enshrined in [[Article 5 GDPR]]. Additionally, the processing will still be subject to other GDPR provisions that may be applicable, such as the obligation to carry out a data protection impact assessment from [[Article 35 GDPR]] or the obligation to designate a data protection officer from [[Article 37 GDPR]].<ref>''Georgieva'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 10 GDPR, p. 388 (Oxford University Press, Oxford, 2020).</ref>


''You can help us fill this section!''
=== Authorised entities ===
The processing shall only be carried out by public authorities and private entities that are entitled to do so under Member State law. In this regard, interpreting the norm ''sensu contrario,'' the public authorities are those excluded by the scope of Article 3(7) LED. In addition, the national law allowing private entities to process such data shall provide for appropriate safeguards for the rights and freedoms of data subjects. Processing by private entities shall happen under direct control of authorised entities; the authorised entity shall be fully or largely responsible for the processing. Mere supervision that does not, in practice, allow for the reliable control of the conditions of individual processing is not enough.<ref>''Schiff'', in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 10 GDPR, margin numbers 7-8 (C.H. Beck, 2nd Edition 2018).</ref>
----


== Decisions ==
== Decisions ==
Line 215: Line 214:
== References ==
== References ==
<references />
<references />


[[Category:GDPR Articles]]
[[Category:GDPR Articles]]

Latest revision as of 15:41, 18 March 2024

Article 10: Processing of personal data relating to criminal convictions and offences
Gdpricon.png
Chapter 10: Delegated and implementing acts

Legal Text


Article 10: Processing of personal data relating to criminal convictions and offences

Processing of personal data relating to criminal convictions and offences or related security measures based on Article 6(1) shall be carried out only under the control of official authority or when the processing is authorised by Union or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects. Any comprehensive register of criminal convictions shall be kept only under the control of official authority.

Relevant Recitals

Recital 19: Not Applicable to Criminal Prosecution Activities
The protection of natural persons with regard to the processing of personal data 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 and the free movement of such data, is the subject of a specific Union legal act. This Regulation should not, therefore, apply to processing activities for those purposes. However, personal data processed by public authorities under this Regulation should, when used for those purposes, be governed by a more specific Union legal act, namely Directive (EU) 2016/680 of the European Parliament and of the Council. Member States may entrust competent authorities within the meaning of Directive (EU) 2016/680 with tasks which are not necessarily carried out for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and prevention of threats to public security, so that the processing of personal data for those other purposes, in so far as it is within the scope of Union law, falls within the scope of this Regulation. With regard to the processing of personal data by those competent authorities for purposes falling within scope of this Regulation, Member States should be able to maintain or introduce more specific provisions to adapt the application of the rules of this Regulation. Such provisions may determine more precisely specific requirements for the processing of personal data by those competent authorities for those other purposes, taking into account the constitutional, organisational and administrative structure of the respective Member State. When the processing of personal data by private bodies falls within the scope of this Regulation, this Regulation should provide for the possibility for Member States under specific conditions to restrict by law certain obligations and rights when such a restriction constitutes a necessary and proportionate measure in a democratic society to safeguard specific important interests including public security and 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. This is relevant for instance in the framework of anti-money laundering or the activities of forensic laboratories.

Recital 50: Compatible Purpose for Further Processing
The processing of personal data for purposes other than those for which the personal data were initially collected should be allowed only where the processing is compatible with the purposes for which the personal data were initially collected. In such a case, no legal basis separate from that which allowed the collection of the personal data is required. If the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, Union or Member State law may determine and specify the tasks and purposes for which the further processing should be regarded as compatible and lawful. Further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes should be considered to be compatible lawful processing operations. The legal basis provided by Union or Member State law for the processing of personal data may also provide a legal basis for further processing. In order to ascertain whether a purpose of further processing is compatible with the purpose for which the personal data are initially collected, the controller, after having met all the requirements for the lawfulness of the original processing, should take into account, inter alia: any link between those purposes and the purposes of the intended further processing; the context in which the personal data have been collected, in particular the reasonable expectations of data subjects based on their relationship with the controller as to their further use; the nature of the personal data; the consequences of the intended further processing for data subjects; and the existence of appropriate safeguards in both the original and intended further processing operations. Where the data subject has given consent or the processing is based on Union or Member State law which constitutes a necessary and proportionate measure in a democratic society to safeguard, in particular, important objectives of general public interest, the controller should be allowed to further process the personal data irrespective of the compatibility of the purposes. In any case, the application of the principles set out in this Regulation and in particular the information of the data subject on those other purposes and on his or her rights including the right to object, should be ensured. Indicating possible criminal acts or threats to public security by the controller and transmitting the relevant personal data in individual cases or in several cases relating to the same criminal act or threats to public security to a competent authority should be regarded as being in the legitimate interest pursued by the controller. However, such transmission in the legitimate interest of the controller or further processing of personal data should be prohibited if the processing is not compatible with a legal, professional or other binding obligation of secrecy.

Commentary

Article 10 GDPR is a complementary provision to the Law Enforcement Directive (LED)[1]. It aims to ensure that criminal data processing is still carried out in accordance with the GDPR’s principles and with appropriate safeguards when the LED is not directly applicable. Article 2(2)(d) GDPR excludes any processing that falls under the scope of the LED from the scope of the GDPR. Article 10 GDPR is intended to extend the protection of the GDPR to the processing of certain criminal data that is not included in the scope of the LED. Specifically, this includes data that has the potential to lead to stigmatisation, which may lead to profound effects on different aspects of a data subjects' life due to its sensitive nature. For example, when data is inappropriately processed in the employment context.[2]

This position was affirmed by the Court of Justice in Case C‑439/19, Latvijas Republikas Saeima. In this judgment, the Court noted that data processed under Article 10 GDPR warrants a higher standards of protection for processing and grant of access, as the data which falls under its scope has the potential to expose the data subject to stigmatisation and social disapproval. At paragraphs 74 and 75, the Court observed that the risk of stigmatisation in itself amounts to severe interference in the data subject's private and professional life for the purposes of Articles 7 and 8 of the Charter, consequently justifying stricter thresholds for processing.[3]

As a result, "[u]nder the principle of proportionality, limitations [to the the fundamental rights to respect for private life and to the protection of personal data] may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. They must apply only in so far as is strictly necessary and the legislation which entails the interference must lay down clear and precise rules governing the scope and application of the measure in question."[4]

Criminal “convictions” and “offences”

Article 10 GDPR allows for the processing of data relating to criminal convictions and offences. The term “convictions” makes reference to pronouncements of criminal penalties on perpetrators, instigators or assistants. Actors such as victims or witnesses are not included. However, there is discussion about whether suspects should be included.[5] The notion of “offence" must be interpreted according to Member State law. In addition, the CJEU has established three criteria that must be examined when determining what constitutes a criminal proceeding: the legal classification of the offence under national law, the nature of the offence and the nature as well as degree of severity of the penalty that the person concerned is liable to incur.[6]

Conditions for the processing

However, any processing still needs to rely on a legal basis from Article 6(1) GDPR and comply with the principles enshrined in Article 5 GDPR. Additionally, the processing will still be subject to other GDPR provisions that may be applicable, such as the obligation to carry out a data protection impact assessment from Article 35 GDPR or the obligation to designate a data protection officer from Article 37 GDPR.[7]

Authorised entities

The processing shall only be carried out by public authorities and private entities that are entitled to do so under Member State law. In this regard, interpreting the norm sensu contrario, the public authorities are those excluded by the scope of Article 3(7) LED. In addition, the national law allowing private entities to process such data shall provide for appropriate safeguards for the rights and freedoms of data subjects. Processing by private entities shall happen under direct control of authorised entities; the authorised entity shall be fully or largely responsible for the processing. Mere supervision that does not, in practice, allow for the reliable control of the conditions of individual processing is not enough.[8]


Decisions

→ You can find all related decisions in Category:Article 10 GDPR

References

  1. Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data and repealing Council Framework Decision 2008/977/JHA.
  2. Georgieva, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 10 GDPR, p. 388 (Oxford University Press, Oxford, 2020).
  3. Case C‑439/19, Latvijas Republikas Saeima, paras 74-75.
  4. Case C‑439/19, Latvijas Republikas Saeima, para 105.
  5. Weichert, in Kühling, Buchner, DS-GVO BDSG, Article 10 GDPR, margin number 6 (C.H. Beck 2020, 3rd Edition).
  6. CJEU, C‑489/10, 5 June 2012, Bonda, margin number 37 (available here).
  7. Georgieva, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 10 GDPR, p. 388 (Oxford University Press, Oxford, 2020).
  8. Schiff, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 10 GDPR, margin numbers 7-8 (C.H. Beck, 2nd Edition 2018).