Banner1.png
Banner startpage.png
Banner3.png

Difference between revisions of "Article 10 GDPR"

From GDPRhub
(10 intermediate revisions by 3 users not shown)
Line 190: Line 190:
  
 
== Relevant Recitals==
 
== Relevant Recitals==
<span id="r1"><div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;">
+
<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;">
<div>'''Recital 19'''</div>
+
<div>'''Recital 19 - Not applicable to the prosecution of criminal offences'''</div>
 
<div class="mw-collapsible-content">
 
<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.
 
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.
Line 198: Line 198:
 
</div></div>
 
</div></div>
  
<span id="r1"><div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;">
+
<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;">
<div>'''Recital 50'''</div>
+
<div>'''Recital 50 - Permissible further processing''' </div>
 
<div class="mw-collapsible-content">
 
<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.
 
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.
Line 205: Line 205:
 
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.
 
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.
 
</div></div>
 
</div></div>
 
  
 
== Commentary on Article 10 ==
 
== Commentary on Article 10 ==
Article 10 is a complementary provision to the Law Enforcement Directive (LED), Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016. The LED regulates the processing of data for the purpose of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties. This scope extends to the prevention of threats to public security by competent public authorities or other entities entrusted with such tasks by a national law. Article 10 allows for the free movement of data for the purposes prescribed by the LED and repeals the Council Framework Decision 2008/977/JHA with the aim of ensuring that criminal data processing is carried out in accordance with the GDPR principles and with appropriate safeguards when the LED is not directly applicable.
+
Article 10 GDPR is a complementary provision to the Law Enforcement Directive (LED),<ref>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, accessible at: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32016L0680</ref> that aims at ensuring that criminal data processing is still carried out in accordance with the GDPR principles and with appropriate safeguards when the LED is not directly applicable.
  
 
==== General aspects ====
 
==== General aspects ====
  
<span id="r1"><span id="r1">Article 2(2)(d) GDPR excludes from the scope of the Regulation any processing that falls under the scope of the LED. 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 Directive. Specifically, data that due to its sensitive nature, can lead to stigmatization and profound effects on different aspects of a data subjects' life.<ref><span id="r1"><span id="r1">''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><span id="r1"><span id="r1">
+
Article 2(2)(d) GDPR excludes from the scope of the Regulation any processing that falls under the scope of the LED. 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 Directive. Specifically, data that due to its sensitive nature, can lead to stigmatization and profound effects on different aspects of a data subjects' life (when it is inappropriately processed in the employment context, for example).<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>
  
 
==== Criminal “convictions” and “offences” ====
 
==== Criminal “convictions” and “offences” ====
 
Article 10 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, Article 10 GDPR, margin numbers 6-8a (Beck 2020, 3nd ed.) (accessed 13.05.2021)</ref>
 
Article 10 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, Article 10 GDPR, margin numbers 6-8a (Beck 2020, 3nd ed.) (accessed 13.05.2021)</ref>
  
Regarding the meaning of “offence," the term may be subject to interpretation by Member State law. In addition, the CJEU has established the three criteria 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 and degree of severity of the penalty that the person concerned is liable to incur.<ref>CJEU, 05.06.2012, Bonda, C‑489/10, § 37 (available here <nowiki>https://curia.europa.eu/juris/document/document.jsf?text=&docid=123501&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2694396</nowiki>)</ref>
+
Regarding the meaning of “offence", the term may be subject to interpretation by Member State law. In addition, the CJEU has established the three criteria 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 and degree of severity of the penalty that the person concerned is liable to incur.<ref>CJEU, 05.06.2012, Bonda, C‑489/10, § 37 (available here <nowiki>https://curia.europa.eu/juris/document/document.jsf?text=&docid=123501&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2694396</nowiki>)</ref>
  
 
==== Conditions for the processing ====
 
==== Conditions for the processing ====
Line 223: Line 222:
  
 
==== Authorized entities ====
 
==== Authorized entities ====
The processing shall only be carried out by public authorities and private entities that are entitled to do it by Member State law. In this regard, interpreting the norm ''sensu contrario,'' the public authorities mentioned in Article 10 are the ones not included in Article 3(7) LED. In addition to this, the national law allowing private entities to process such data shall provide for appropriate safeguards for the rights and freedoms of data subjects.
+
The processing shall only be carried out by public authorities and private entities that are entitled to do so by 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 authorized entities; the authorized 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 (Beck 2018, 2nd ed.) (accessed 13.05.2021)</ref>
It is also important to note that such processing shall happen under direct control of the mentioned entities; the entity shall be fully or largely responsible for the processing. Mere supervision that doe snot, 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 (Beck 2018, 2nd ed.) (accessed 13.05.2021)</ref>
+
----
----<span id="r1"><span id="r1">
 
  
 
== Decisions ==
 
== Decisions ==
Line 232: Line 230:
 
== References ==
 
== References ==
 
<references />
 
<references />
 
<span id="r1"><span id="r1">
 

Revision as of 14:49, 19 July 2021

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 the prosecution of criminal offences

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. 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 - Permissible 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 on Article 10

Article 10 GDPR is a complementary provision to the Law Enforcement Directive (LED),[1] that aims at ensuring that criminal data processing is still carried out in accordance with the GDPR principles and with appropriate safeguards when the LED is not directly applicable.

General aspects

Article 2(2)(d) GDPR excludes from the scope of the Regulation any processing that falls under the scope of the LED. 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 Directive. Specifically, data that due to its sensitive nature, can lead to stigmatization and profound effects on different aspects of a data subjects' life (when it is inappropriately processed in the employment context, for example).[2]

Criminal “convictions” and “offences”

Article 10 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.[3]

Regarding the meaning of “offence", the term may be subject to interpretation by Member State law. In addition, the CJEU has established the three criteria 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 and degree of severity of the penalty that the person concerned is liable to incur.[4]

Conditions for the processing

Any processing still needs to rely on a legal basis from Article 6(1) GDPR and comply with the principles enshrined in Article 5. 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 or the obligation to designate a data protection officer from Article 37.[5]

Authorized entities

The processing shall only be carried out by public authorities and private entities that are entitled to do so by 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 authorized entities; the authorized 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.[6]


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, accessible at: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32016L0680
  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. Weichert, in Kühling, Buchner, DS-GVO, Article 10 GDPR, margin numbers 6-8a (Beck 2020, 3nd ed.) (accessed 13.05.2021)
  4. CJEU, 05.06.2012, Bonda, C‑489/10, § 37 (available here https://curia.europa.eu/juris/document/document.jsf?text=&docid=123501&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2694396)
  5. Georgieva, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 10 GDPR, p. 388 (Oxford University Press, Oxford, 2020)
  6. Schiff, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 10 GDPR, margin numbers 7-8 (Beck 2018, 2nd ed.) (accessed 13.05.2021)