Article 12 GDPR
|← Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject →|
1. The controller shall take appropriate measures to provide any information referred to in Articles 13 and 14 and any communication under Articles 15 to 22 and 34 relating to processing to the data subject in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child. The information shall be provided in writing, or by other means, including, where appropriate, by electronic means. When requested by the data subject, the information may be provided orally, provided that the identity of the data subject is proven by other means.
2. The controller shall facilitate the exercise of data subject rights under Articles 15 to 22. In the cases referred to in Article 11(2), the controller shall not refuse to act on the request of the data subject for exercising his or her rights under Articles 15 to 22, unless the controller demonstrates that it is not in a position to identify the data subject.
3. The controller shall provide information on action taken on a request under Articles 15 to 22 to the data subject without undue delay and in any event within one month of receipt of the request. That period may be extended by two further months where necessary, taking into account the complexity and number of the requests. The controller shall inform the data subject of any such extension within one month of receipt of the request, together with the reasons for the delay. Where the data subject makes the request by electronic form means, the information shall be provided by electronic means where possible, unless otherwise requested by the data subject.
4. If the controller does not take action on the request of the data subject, the controller shall inform the data subject without delay and at the latest within one month of receipt of the request of the reasons for not taking action and on the possibility of lodging a complaint with a supervisory authority and seeking a judicial remedy.
5. Information provided under Articles 13 and 14 and any communication and any actions taken under Articles 15 to 22 and 34 shall be provided free of charge. Where requests from a data subject are manifestly unfounded or excessive, in particular because of their repetitive character, the controller may either:
- (a) charge a reasonable fee taking into account the administrative costs of providing the information or communication or taking the action requested; or
- (b) refuse to act on the request.
The controller shall bear the burden of demonstrating the manifestly unfounded or excessive character of the request.
6. Without prejudice to Article 11, where the controller has reasonable doubts concerning the identity of the natural person making the request referred to in Articles 15 to 21, the controller may request the provision of additional information necessary to confirm the identity of the data subject.
7. The information to be provided to data subjects pursuant to Articles 13 and 14 may be provided in combination with standardised icons in order to give in an easily visible, intelligible and clearly legible manner a meaningful overview of the intended processing. Where the icons are presented electronically they shall be machine-readable.
8. The Commission shall be empowered to adopt delegated acts in accordance with Article 92 for the purpose of determining the information to be presented by the icons and the procedures for providing standardised icons.
(1) Requirements of the information in the GDPR
In describing the general requirements of the information to be provided to the user, paragraph 1 refers to Articles 13, 14, 15 to 22 and 34 of the GDPR. Considered together, these provisions exhaust all the cases of communication and information provided by the controller to the data subject.
It follows that, no matter whether the information refers to a forthcoming processing, as in Articles 13 or 14, or to an existing one, as in Articles 15 to 22, it must always be provided “in a concise, transparent, intelligible and easily accessible form, using clear and plain language”.
The use of a layered privacy statement/ notice will enable a data subject to navigate to the particular section of the privacy statement/ notice which they want to immediately access rather than having to scroll through large amounts of text searching for particular issues
A data subject should be able to determine in advance what the scope and consequences of the processing entails and that they should not be taken by surprise at a later point about the ways in which their personal data has been used (Recital 39).
In particular, for complex, technical or unexpected data processing, WP29’s position is that, as well as providing the prescribed information under Articles 13 and 14, controllers should also separately spell out in unambiguous language what the most important consequences of the processing will be.
The requirement that information is “intelligible” means that it should be understood by an average member of the intended audience. An accountable data controller will have knowledge about the people they collect information about and it can use this knowledge to determine what that audience would likely understand.
If controllers are uncertain about the level of intelligibility and transparency of the information and effectiveness of user interfaces/ notices/ policies etc., they can test these, for example, through mechanisms such as user panels, readability testing, formal and informal interactions and dialogue with industry groups, consumer advocacy groups and regulatory bodies, where appropriate, amongst other things.
Easily accessible form
The data subject should not have to seek out the information; it should be immediately apparent to them where and how this information can be accessed, for example by providing it directly to them, by linking them to it, by clearly signposting it or as an answer to a natural language question (for example in an online layered privacy statement/ notice, in FAQs, by way of contextual pop-ups which activate when a data subject fills in an online form, or in an interactive digital context through a chatbot interface, etc).
Clear and plain language
With written information (and where written information is delivered orally, or by audio/ audiovisual methods, including for vision-impaired data subjects), best practices for clear writing should be followed. The requirement for clear and plain language means that information should be provided in as simple a manner as possible, avoiding complex sentence and language structures. The information should be concrete and definitive; it should not be phrased in abstract or ambivalent terms or leave room for different interpretations.
In particular, the purposes of, and legal basis for, processing the personal data should be clear. Language qualifiers such as “may”, “might”, “some”, “often” and “possible” should also be avoided. Where data controllers opt to use indefinite language, they should be able, in accordance with the principle of accountability, to demonstrate why the use of such language could not be avoided and how it does not undermine the fairness of processing.
Forms of the information
Under Article 12(1), the default provision of information to, or communications with, data subjects should be done in writing (also, according to Article 12(7), in combination with standardised icons).
However, the GDPR also allows for other, unspecified “means” including electronic means to be used. WP29’s position with regard to written electronic means is that where a data controller maintains (or operates, in part or in full, through) a website, WP29 recommends the use of layered privacy statements/ notices, which allow website visitors to navigate to particular aspects of the relevant privacy statement/ notice that are of most interest to them.
Other electronic means include “just-in-time” contextual pop-up notices, 3D touch or hover-over notices, and privacy dashboards. Non-written electronic means which may be used in addition to a layered privacy statement/ notice might include videos and smartphone or IoT voice alerts.
“Other means”, which are not necessarily electronic, might include, for example, cartoons, infographics or flowcharts. Where transparency information is directed at children specifically, controllers should consider what types of measures may be particularly accessible to children (e.g. these might be comics/ cartoons, pictograms, animations, etc. amongst other measures).
Article 12(1) specifically contemplates that information may be provided orally to a data subject on request, provided that their identity is proven by other means. In other words, the means employed should be more than reliance on a mere assertion by the individual that they are a specific named person and the means should enable the controller to verify a data subject’s identity with sufficient assurance.
(2) Exercise of rights
The exercise of rights by the data subject is considered as one of the peculiar aspects of the new discipline. Only a full recognition of your rights makes it possible for the data subject to control your personal data. This objective requires a broad protection that the legislator provides by defining a discipline aimed at facilitating the exercise of rights by the user.
(3) Time limit
The controller shall provide information on action taken on a request under Articles 15 to 22 to the data subject without undue delay and in any event within one month of receipt of the request. That period may be extended by two further months where necessary, taking into account the complexity and number of the requests. The controller shall inform the data subject of any such extension within one month of receipt of the request, together with the reasons for the delay. Where the data subject makes the request by electronic form means, the information shall be provided by electronic means where possible, unless otherwise requested by the data subject
(4) No actions taken by the controller
If the controller does not take action on the request of the data subject, the controller shall inform the data subject without delay and at the latest within one month of receipt of the request of the reasons for not taking action and on the possibility of lodging a complaint with a supervisory authority and seeking a judicial remedy.
(5) Free of charge
Under Article 12(5), data controllers cannot generally charge data subjects for the provision of information under Articles 13 and 14, or for communications and actions taken under Articles 15 - 22 (on the rights of data subjects) and Article 34 (communication of personal data breaches to data subjects). This aspect of transparency also means that any information provided under the transparency requirements cannot be made conditional upon financial transactions, for example the payment for, or purchase of, services or goods.
Normally, the exercise of GDPR rights, as well as obtaining information, is free of charge. However, if the requests are manifestly unfounded or excessive, in particular due to their repetitive nature, the data controller may charge a reasonable expense contribution.
Pursuant to Article 12(5), the controller may refuse the request, or claim a fee for expenses, only if the request is deemed to be manifestly unfounded or excessive, in particular because it is repetitive. This is clearly an exception to the rule which, as such, must be interpreted restrictively.
Consequently, if the request is not manifestly unfounded or repetitive, the Controller cannot charge any fee, regardless of whether it was provided for in the contract terms. GDPR rights are in fact very personal rights and cannot be assigned from the data subject by accepting an electronically signed contract term.
Burden of proof
The controller shall bear the burden of demonstrating the manifestly unfounded or excessive character of the request.
=== (6) Verifying the data subject === NB: Extract from a BOOK - need to be summarised and changed
If the controller has reasonable doubts concerning the identity of a natural person making a request pursuant to GDPR, Articles 15 to 21, the controller may ask for additional information necessary to confirm the identity of the data subject.
Background of this controller's right is the possible risk of unauthorised third parties trying to exercise rights of data subjects. A reasonable doubt may be given, e.g. if a request is made via an unknown email address or user account. In such cases controllers are permitted but not required to request information as proof of identity before meeting the requests.
Should it turn out that the requesting party was not the data subject concerned, providing information to that person may be considered an illegal transfer of personal data which can be penalised under GDPR, Article 83, para 4 with administrative fines up to 20,000,000 EUR or 4 % of the total worldwide annual turnover of the controller. Documentation of the incoming requests, controller's measures taken to investigate the lawfulness of the request including requestor's identity, and the measures taken to fulfil such requests will be of the essence to establish sufficient proof for controller's GDPR compliance.
To verify the requesting person's identity, the controller may, according to GDPR, recital 64, use "all reasonable measures", in particular in the context of online services and online identifiers. Such reasonable measures may include contacting the data subject at its known postal address or, in the context of online services, certifying a digital identification of the data subject, for example through authentication mechanisms, such as the same credentials, used by the data subject to log-in to the online service offered by the controller.
Requesting a copy of the data subject's passport might exceed the appropriate extent, as the document provides more information that is usually needed. In some Member States, such as in Germany, national law does not allow copying the data subject's passport and the use of such copies for identification purposes unless this is explicitly allowed under any other applicable law. In view of the very general wording of GDPR, Article 12, para 6 (“additional information necessary to confirm the identity of the data subject”), it is unclear whether this rule would be accepted as a statutory authorisation to make copies of a passport.
(7) Standardised icons
The GDPR provides for visualisation tools (referencing in particular, icons, certification mechanisms, and data protection seals and marks) where appropriate. Recital 5846 indicates that the accessibility of information addressed to the public or to data subjects is especially important in the online environment.
However, the use of icons should not simply replace information necessary for the exercise of a data subject’s rights nor should they be used as a substitute to compliance with the data controller’s obligations under Articles 13 and 14.
(8) Information to be presented by the icons
The GDPR assigns responsibility for the development of a code of icons to the Commission but ultimately the European Data Protection Board may, either at the request of the Commission or of its own accord, provide the Commission with an opinion on such icons.49 WP29 recognises that, in line with Recital 166, the development of a code of icons should be centred upon an evidence-based approach and in advance of any such standardisation it will be necessary for extensive research to be conducted in conjunction with industry and the wider public as to the efficacy of icons in this context
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