Article 13 GDPR

From GDPRhub
Article 13: Information to be provided where personal data are collected from the data subject
Gdpricon.png
Chapter 10: Delegated and implementing acts

Legal Text[edit | edit source]


Article 13: Information to be provided where personal data are collected from the data subject

1. Where personal data relating to a data subject are collected from the data subject, the controller shall, at the time when personal data are obtained, provide the data subject with all of the following information:

(a) the identity and the contact details of the controller and, where applicable, of the controller's representative;
(b) the contact details of the data protection officer, where applicable;
(c) the purposes of the processing for which the personal data are intended as well as the legal basis for the processing;
(d) where the processing is based on point (f) of Article 6(1), the legitimate interests pursued by the controller or by a third party;
(e) the recipients or categories of recipients of the personal data, if any;
(f) where applicable, the fact that the controller intends to transfer personal data to a third country or international organisation and the existence or absence of an adequacy decision by the Commission, or in the case of transfers referred to in Article 46 or 47, or the second subparagraph of Article 49(1), reference to the appropriate or suitable safeguards and the means by which to obtain a copy of them or where they have been made available.

2. In addition to the information referred to in paragraph 1, the controller shall, at the time when personal data are obtained, provide the data subject with the following further information necessary to ensure fair and transparent processing:

(a) the period for which the personal data will be stored, or if that is not possible, the criteria used to determine that period;
(b) the existence of the right to request from the controller access to and rectification or erasure of personal data or restriction of processing concerning the data subject or to object to processing as well as the right to data portability;
(c) where the processing is based on point (a) of Article 6(1) or point (a) of Article 9(2), the existence of the right to withdraw consent at any time, without affecting the lawfulness of processing based on consent before its withdrawal;
(d) the right to lodge a complaint with a supervisory authority;
(e) whether the provision of personal data is a statutory or contractual requirement, or a requirement necessary to enter into a contract, as well as whether the data subject is obliged to provide the personal data and of the possible consequences of failure to provide such data;
(f) the existence of automated decision-making, including profiling, referred to in Article 22(1) and (4) and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject.

3. Where the controller intends to further process the personal data for a purpose other than that for which the personal data were collected, the controller shall provide the data subject prior to that further processing with information on that other purpose and with any relevant further information as referred to in paragraph 2.

4. Paragraphs 1, 2 and 3 shall not apply where and insofar as the data subject already has the information.

Relevant Recitals[edit | edit source]

Recital 60: Information provision - Article 13

The principles of fair and transparent processing require that the data subject be informed of the existence of the processing operation and its purposes. The controller should provide the data subject with any further information necessary to ensure fair and transparent processing taking into account the specific circumstances and context in which the personal data are processed. Furthermore, the data subject should be informed of the existence of profiling and the consequences of such profiling. Where the personal data are collected from the data subject, the data subject should also be informed whether he or she is obliged to provide the personal data and of the consequences, where he or she does not provide such data. That information 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 should be machine-readable.

Recital 61: Time of the information provision - Article 13

The information in relation to the processing of personal data relating to the data subject should be given to him or her at the time of collection from the data subject, or, where the personal data are obtained from another source, within a reasonable period, depending on the circumstances of the case. Where personal data can be legitimately disclosed to another recipient, the data subject should be informed when the personal data are first disclosed to the recipient. Where the controller intends to process the personal data for a purpose other than that for which they were collected, the controller should provide the data subject prior to that further processing with information on that other purpose and other necessary information. Where the origin of the personal data cannot be provided to the data subject because various sources have been used, general information should be provided.

Recital 62: Exceptions to the obligation to provide information - Article 13

However, it is not necessary to impose the obligation to provide information where the data subject already possesses the information, where the recording or disclosure of the personal data is expressly laid down by law or where the provision of information to the data subject proves to be impossible or would involve a disproportionate effort. The latter could in particular be the case where processing is carried out for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes. In that regard, the number of data subjects, the age of the data and any appropriate safeguards adopted should be taken into consideration.

Commentary[edit | edit source]

(1) Information obligation at the time when personal data are obtained[edit | edit source]

Processing of personal data should be lawful, fair, and transparent. The GDPR enshrines these principles in Article 5(1)(a) and the recitals. In particular, Recital 60 explains that a data controller should provide a data subject with all information necessary to ensure fair and transparent processing, taking into account the specific circumstances. Moreover, “(T)he data subject should be able to determine in advance what the scope and consequences of the processing entails”.[1]

Articles 12–14 specify in more detail how and which information should be provided. Typically, controllers fulfill their “information obligation” in a form of a public privacy policy, privacy notice, privacy statement, etc.

(a) Identity and contact details of the controller[edit | edit source]

The name and contact details of the controller (i.e. the company processing the personal data) should be provided, ideally including “different forms of communications with the data controller (e.g. phone number, email, postal address, etc.)”.[2] Looked at in light of the GDPR’s fairness principle enshrined in Article 5(1)(a), but also interpreted against Article 5(1)(c) of the E-Commerce-Directive (2000/31/EC), contact details should be provided in electronic form when the controller offers its digital services. A mere online contact form is not sufficient since a form is not contact details but a contact method.

(b) Contact details of the data protection officer[edit | edit source]

The contact details of the Data Protection Officer (DPO) should be provided, where applicable (not all controllers are required to appoint a DPO). Providing the DPO’s contact details should make it easy for data subjects and the supervisory authorities to reach the DPO, e.g. via a postal address, a dedicated telephone number, and/or a dedicated e-mail address. Looked at in light of the GDPR’s fairness principle, contact details should be provided in electronic form when the controller offers its digital services. A mere online contact form is not sufficient since a form is not contact details but a contact method.

(c) Purposes and legal basis[edit | edit source]

Controllers should provide the purposes for which personal data are processed, as well as the relevant legal basis under Article 6 and, where special categories of data are processed, an additional legal basis under Article 9. In addition, controllers should link each purpose to a legal basis and to specific categories of personal data. This requirement stems from the GDPR’s transparency obligations in Article 5(1)(a). This opinion is supported by statements made by the Article 29 Working Party (WP29) in its guidelines on consent, and on transparency.[3]

(d) Legitimate interests[edit | edit source]

When controllers rely on legitimate interests as a legal basis for processing, they should inform the data subject about the interests and be able to demonstrate that the processing is necessary and proportionate.

(e) Recipients[edit | edit source]

When controllers disclose personal data to other parties, including joint controllers, processors (i.e. service providers), etc., they should provide the names of the recipients of personal data and the categories of personal data disclosed. If it is not possible to name all the recipients, controllers should state the categories of recipients and indicate the activities they carry out, their industry, sector and sub-sector, and their location.[4]

(f) International transfers[edit | edit source]

In case of data transfers to third countries, controllers should inform the data subjects about such transfers, name all the relevant countries, specify the safeguards relied upon (e.g. adequacy decision under Article 45, standard contractual clauses, derogations, etc.), and provide for the means to access or obtain the relevant documents.[5]

(2) Obligation to provide further information at the time when personal data are obtained[edit | edit source]

You can help us fill this section!

(a) Retention period[edit | edit source]

The retention periods should be specific for the category of personal data concerned, or, at the very least, should allow the data subject for the assessment of the duration of data retention based on their own situation. If a controller provides that the data will be stored to comply with a legal obligation, it should specify which legal obligation it refers to.

(b) Information about data subject's rights[edit | edit source]

The controller should inform the data subject about his or her rights to access, rectification, erasure, restriction on processing, objection to processing and data portability. Strictly speaking, it is not enough to merely inform about the existence of those rights, the controller should also include “a summary of what each right involves and how the data subject can take steps to exercise it and any limitations on the right”.[6]

(c) Withdrawal of consent[edit | edit source]

You can help us fill this section!

(d) The right to lodge a complaint[edit | edit source]

The right to lodge a complaint should explain that a complaint may be filed with the supervisory authority in a Member State of the data subject's habitual residence, their place of work or of the alleged infringement of the GDPR.[7]

(e) Whether the provision of personal data is a statutory or contractual requirement[edit | edit source]

You can help us fill this section!

(f) Automated decision-making[edit | edit source]

When controllers use automated-decision making (incl. profiling), they should explain in clear and plain language how the profiling or automated decision-making process works. Additionally, controllers should inform about the significance and the envisaged consequences of such processing for the data subject.

All of the information elements are generally of equal importance and must be provided to the data subject.[8]

(3) Information on further processing[edit | edit source]

You can help us fill this section!

(4) Exception to the obligation on the information provision[edit | edit source]

You can help us fill this section!

Decisions[edit | edit source]

→ You can find all related decisions in Category:Article 12 GDPR

References[edit | edit source]

  1. Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, p. 7.
  2. Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, p. 35.
  3. Article 29 Working Party “Guidelines on consent under Regulation 2016/679”, WP259 rev.01, p. 22 and “Guidelines on transparency under Regulation 2016/679”, WP 260 rev.01, p. 8.
  4. Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, p. 37.
  5. Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, pp. 37-38.
  6. Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, p. 39.
  7. Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, p. 39.
  8. Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, p. 14.