Article 11 GDPR

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Article 11: Processing which does not require identification
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Chapter 10: Delegated and implementing acts

Legal Text[edit | edit source]

Article 11: Processing which does not require identification

1. If the purposes for which a controller processes personal data do not or do no longer require the identification of a data subject by the controller, the controller shall not be obliged to maintain, acquire or process additional information in order to identify the data subject for the sole purpose of complying with this Regulation.

2. Where, in cases referred to in paragraph 1 of this Article, the controller is able to demonstrate that it is not in a position to identify the data subject, the controller shall inform the data subject accordingly, if possible. In such cases, Articles 15 to 20 shall not apply except where the data subject, for the purpose of exercising his or her rights under those articles, provides additional information enabling his or her identification.

Relevant Recitals[edit | edit source]

Recital 57: Processing which does not require identification

If the personal data processed by a controller do not permit the controller to identify a natural person, the data controller should not be obliged to acquire additional information in order to identify the data subject for the sole purpose of complying with any provision of this Regulation. However, the controller should not refuse to take additional information provided by the data subject in order to support the exercise of his or her rights. Identification should include the digital identification of a data subject, for example through authentication mechanism such as the same credentials, used by the data subject to log-in to the on-line service offered by the data controller.

Recital 64: Verification of the data subject's identity

The controller should use all reasonable measures to verify the identity of a data subject who requests access, in particular in the context of online services and online identifiers. A controller should not retain personal data for the sole purpose of being able to react to potential requests.

Commentary[edit | edit source]

(1) Processing which does not require identification[edit | edit source]

Article 11 regulates the processing of personal data that does not require the identification of the data subject.

Example: A controller wants to analyze the performance of one of its shops. This requires the collection of the aggregate purchases of customers, but not their identification.

In such cases, the controller is not obliged to acquire additional information in order to identify the data subject for the sole purpose of complying with any provision of the GDPR.

This also follows from the principles of minimization and necessity. These require the controller to de-identify personal data as far as possible for the respective purpose, e.g. through deletion, anonymisation, pseudo-anonymisation, etc.

(2) Legal consequences of the impossibility to identify the data subject[edit | edit source]

Under Article 12(2), if the identification is not possible, Articles 15 to 20 do not apply, except where the data subject, for the purpose of exercising their rights under those articles, provides additional information enabling their identification.

GDPR applies in part[edit | edit source]

Under the conditions of Article 11(1), Article 11(2) excludes the applicability of Articles 15 to 20. It follows that all other requirements of the GDPR that are not expressly excluded should remain applicable, including but not limited to the security (Article 32(1)) and the general principles of processing set out in Article 5.

Burden of proof[edit | edit source]

The controller must be able to demonstrate the impossibility to identify the data subject.

The demonstration should provide a fair explanation on the reasons why the controller is unable to identify the data subject.

Against the fairness and transparency principle (Article 5(1)(a)), generic or circular arguments ("Our systems are unable to identify your data") are too broad to meet the requirement of a proper demonstration.

Obligation to inform[edit | edit source]

Article 12(2) provides for a peculiar informative obligation ("Where [...] the controller is able to demonstrate that it is not in a position to identify the data subject, the controller shall inform the data subject accordingly, if possible").

Such an information, which is clearly different from the one received under Articles 13 - 22 GDPR, seems particularly important as it allows the data subject to assess the allegedly non-identifying processing and, where the case, provide additional information enabling the identification.

For this reason, the controller should provide information tailored to the specific case and, in particular, explain why the identification is not possible. Furthermore, in application of the principle of fairness in the processing of personal data, the controller should indicate in advance which data the data subject should provide for its (re)identification.

Obligation to accept and assess the additional information[edit | edit source]

If the data subject provides further information, the controller must receive it and, under Article 12(2), try its best to identify the data subject. The controller should also provide the data subject with a pre-defined description of what kind of additional information is needed to (re)identify the data subject.

In this regard, the Working Party 29 has already invited stakeholders "to elaborate, precisely with reference to Article 11 calls for proposals from the C-ITS WG on the concept of ‘additional information’ that can be provided in the context of this new service to make this provision effective".[1]

Decisions[edit | edit source]

→ You can find all related decisions in Category:Article 11 GDPR

References[edit | edit source]

  1. WP29, Opinion 3/2017 on processing personal data in the context of Cooperative Intelligent Transport Systems, p. 7.