Article 11 GDPR
|← 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.
Commentary on Article 11
(1) Processing which does not require identification
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 the GDPR.
This also follows from the principles of minimization and necessity. These principles require controllers to de-identify personal data (through deletion, anonymisation, pseudo-anonymisation, etc.) as far as possible for their respective purposes.
(2) Legal consequences of the impossibility to identify the data subject
Under Article 11(2), if 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 still applies in part
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, security of processing (Article 32(1)) and the general principles of processing set out in Article 5.
Burden of proof
The controller must be able to demonstrate the impossibility of identifying the data subject.
The demonstration should provide a fair explanation of the reasons why the controller is unable to identify the data subject.
Due to 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
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 information received under Articles 13 - 22 GDPR, seems particularly important as it allows the data subject to assess the allegedly non-identifying processing and, where they desire, provide additional information to enable their identification.
For this reason, the controller should provide tailored information and explain why, in particular, 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
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".
→ You can find all related decisions in Category:Article 11 GDPR
- WP29, Opinion 3/2017 on processing personal data in the context of Cooperative Intelligent Transport Systems, p. 7.