Difference between revisions of "Article 13 GDPR"

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====(b) Contact Details of the Data Protection Officer====
 
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In some instances, controller must designate a Data Protection Officer (DPO) who has the duty to oversee the processing activities conducted by the controller and to act as a point of contact for the data subjects<ref>See, Article 38(4) GDPR. For more information in that respect, see Commentary on [https://gdprhub.eu/index.php%3Ftitle=Article_37_GDPR Article 37 GDPR] to [https://gdprhub.eu/index.php%3Ftitle=Article_39_GDPR Article 39 GDPR]). If a DPO is indeed designated, Article 13(1)(b) GDPR makes it mandatory for the controller to provide to the data subjects the contact details of the DPO.</ref>. The contact details of the DPO should include information allowing data subjects to reach the DPO in an easy way. This may include a postal address, a dedicated telephone number, and/or a dedicated  e-mail  address.<ref>WP29, ‘Guidelines on Data Protection Officers (‘DPOs’)’, 16/EN WP243 rev.01, 5 April 2017, p. 13 (available [https://ec.europa.eu/newsroom/just/document.cfm?doc_id=44100 here]).</ref> When appropriate, for purposes of communications with the public, the controller could also provide these contact details in the form of a dedicated hotline or a dedicated contact form addressed to the DPO on the organisation’s website. With respect to the online contact form, however, compliance with Article 13(1)(b) GDPR would require at minimum that the actual contact details of the DPO are also made visible to the data subject, either within the form or somewhere else.
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In some instances, controller must designate a Data Protection Officer (DPO) who has the duty to oversee the processing activities conducted by the controller and to act as a point of contact for the data subjects<ref>See, Article 38(4) GDPR. For more information in that respect, see Commentary on [[Article 37 GDPR]] to [[Article 39 GDPR]]). If a DPO is indeed designated, Article 13(1)(b) GDPR makes it mandatory for the controller to provide to the data subjects the contact details of the DPO.</ref>. The contact details of the DPO should include information allowing data subjects to reach the DPO in an easy way. This may include a postal address, a dedicated telephone number, and/or a dedicated  e-mail  address.<ref>WP29, ‘Guidelines on Data Protection Officers (‘DPOs’)’, 16/EN WP243 rev.01, 5 April 2017, p. 13 (available [https://ec.europa.eu/newsroom/just/document.cfm?doc_id=44100 here]).</ref> When appropriate, for purposes of communications with the public, the controller could also provide these contact details in the form of a dedicated hotline or a dedicated contact form addressed to the DPO on the organisation’s website. With respect to the online contact form, however, compliance with Article 13(1)(b) GDPR would require at minimum that the actual contact details of the DPO are also made visible to the data subject, either within the form or somewhere else.
  
 
====(c) Purposes and Legal Basis====
 
====(c) Purposes and Legal Basis====

Latest revision as of 17:12, 8 August 2022

Article 13: Information to be provided where personal data are collected from the data subject
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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 Requirements
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 Information Provision
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 Information Requirement
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]

Article 5(1)(a) GDPR, which enshrines the principle of lawfulness, fairness and transparency, lays important foundations on which other provisions of the GDPR are built. Transparency, in particular, is envisaged as an overarching concept that governs several other data protection rights and obligations, including Articles 13 to 15 GDPR on information and access to personal data.[1] Article 13 GDPR can thus be considered as an expression of the principle of transparency.

(1) Information the Controller Shall Provide at the Time that Personal Data is Obtained[edit | edit source]

Article 13 GDPR applies in situations where personal data are collected directly from the data subjects (i.e. direct collection).[2] Such information is primarily envisaged as a mean for the data subject to "be able to determine in advance what the scope and consequences of the processing entails”.[3]

To avoid discrepancies and ensure a uniform and sufficient level of information of the data subjects, the EU legislator did not leave the content of such information to the discretion of controllers. Hence, Article 13 GDPR meticulously lists which pieces of information must be provided to the data subjects, as further detailed here below. Generally, such information is provided by the controllers in the form of an annex to a contract, a hard-copy document or an online data protection notice, commonly referred to as 'privacy policy' or 'privacy notice'. Further information on the format of such data protection notice and the manner in which it can be provided to the data subjects can be found in the Commentary on Article 12 GDPR.

Regardless of the format of the notice or the method of transmission, Article 13(1) GDPR provides that the information should be provided "at the time when personal data are obtained". The verb 'provide' does not necessarily entail a physical action on the part of the controller, such as handing the notice to the data subject in person, but requires nonetheless the controller to be proactive in giving the information.[4] Hence, the attention of the data subject should be drawn on the existence of the notice, and the latter must be easily accessible and distinguishable from other information, such as the terms of use of a website or the clauses of a contract.[5] What remains essential in any case is for the information to be accessible to the data subjects prior to, or at least at the moment the personal data are obtained.

(a) Identity and Contact Details of the Controller[edit | edit source]

The first piece of information that must be provided to the data subject is the identity and contact details of the controller. This information is indeed a prerequisite for the data subject to be able to get in touch in the controller and further exercise their right to information and access where necessary.

The contact details should ideally include “different forms of communications with the data controller (e.g. phone number, email, postal address, etc.)”.[6] In practice, however, most data controllers provide an email address, a postal address, or both. In light of the GDPR’s fairness principle enshrined in Article 5(1)(a) GDPR, and of Article 5(1)(c) of the E-Commerce-Directive (2000/31/EC), the data subject should be able to contact the controller via email when the controller offers digital services.

Some controllers, rather than directly providing the data subject with their contact details, offer instead an online contact form. in order to be able to submit such contact form, the data subject is usually required to fill in some mandatory fields, such as a name, email address or the nature of the request. While some contact forms require minimal information and therefore make it easy for the data subject to contact the controller, others may require specific information such as a login, a customer ID or a contract number, which not all data subjects have, thereby making it impossible to contact the controller.

In addition, while some contact forms show the address email of the controller (either directly in the form, or subsequently by sending a copy of the message to the data subject's email address), other forms do not provide the actual contact details of the controller. In the latter case, the controller would thus simply not fulfill its obligation under Article 13(1)(a) GDPR, given that the online contact form would merely consist in a contact method, rather than in a contact detail.

(b) Contact Details of the Data Protection Officer[edit | edit source]

In some instances, controller must designate a Data Protection Officer (DPO) who has the duty to oversee the processing activities conducted by the controller and to act as a point of contact for the data subjects[7]. The contact details of the DPO should include information allowing data subjects to reach the DPO in an easy way. This may include a postal address, a dedicated telephone number, and/or a dedicated e-mail address.[8] When appropriate, for purposes of communications with the public, the controller could also provide these contact details in the form of a dedicated hotline or a dedicated contact form addressed to the DPO on the organisation’s website. With respect to the online contact form, however, compliance with Article 13(1)(b) GDPR would require at minimum that the actual contact details of the DPO are also made visible to the data subject, either within the form or somewhere else.

(c) Purposes and Legal Basis[edit | edit source]

Article 13(1)(c) provides that controllers should provide the purposes for which the personal data are processed, as well as the corresponding legal basis. The legal basis must necessarily be found either in Article 6 GDPR or, where special categories of personal data are processed, in Article 9 GDPR. In exceptional cases where personal data relating to criminal matters are being processed (e.g. copy of the criminal record of a job applicant), the controller should also indicate, in addition to the legal basis applicable under Article 6 GDPR, what is the relevant EU or Member State law allowing such processing to be carried out.[9] Controllers are therefore bound to identify the different legal bases on which they rely for processing the personal data, and link them to the purpose of the processing. Data subjects should therefore be provided with a comprehensive overview of the different processing activities that the controller intend to conduct, as well as their respective purpose and legal basis. This obligation stems from the GDPR’s transparency obligations in Article 5(1)(a) GDPR and is supported by statements made by the WP29 in its guidelines on consent, and on transparency.[10] Where a single controller processes many different categories of personal data for various purposes, it may become difficult for the data subject to understand which legal basis applies for which processing purpose. A controller that would be too unspecific would however breach its obligation under Article 13(1)(c) GDPR and possibly also under Article 5(1)(a) GDPR, which enshrines the principle of transparency.[11] In practice, to reconcile the obligation to provide both complete and concise information to the data subjects[12], many controllers provide this information in the form of a table with different rows and columns clearly distinguishing between the different purposes of the processing and their corresponding legal basis. This table may be added within the privacy notice of the controller, or as an annex to it.

(d) Legitimate Interests[edit | edit source]

When a controller rely on a legitimate interest for the processing of personal data, as provided for under Article 6(1)(f) GDPR, the data subjects must be properly informed about the nature of that specific interest, as required by Article 13(1)(d) GDPR. For example, if a controller, on the basis of a legitimate interest, processes the IP address of data subjects to redirect them to a website corresponding to the geographical location of the data subject (e.g. website.de for data subjects located in Germany and website.fr for data subjects located in France), the specific interest of the controller behind that processing should be clearly explained (e.g. ensuring that the products available on the website are available and can be delivered in the country of the data subjects).

Understanding the legitimate interest of the controller can be seen as a prerequisite for a data subject to be able to exercise other rights, such as the right to object to the processing. With this information, the data subject can indeed assess whether the interest invoked by the controller is truly legitimate and if the processing is proportionate, taking into account the objective pursued by the controller, and the impact that it can have on his/her own rights and interests. If, after performing this balancing test, the data subject finds that the processing is disproportionate, he or she may exercise the right to object to the processing under Article 21 GDPR.

As a matter of best practice, controllers should include this information in the table listing the different purposes of the processing and their corresponding legal basis. If the legal basis is Article 6(1)(f) GDPR (i.e. 'legitimate interest'), the controller should define this interest. If the information provided is incomplete or unclear, the controller can be fined for breach of Article 13(1)(d) GDPR.[13] The WP29 furthermore considered that, as a matter of best practice, the controller should also provide the data subject with the information from the balancing test, which the controller must normally carry out under Article 6(1)(f) GDPR before collecting the personal data.[14] The result of the balancing test is however not a mandatory information under Article 13(1)(d) GDPR.

(e) Recipients[edit | edit source]

Article 13(1)(e) GDPR provides that when controllers disclose personal data to internal or external recipients, they should identify such recipients. Article 4(9) GDPR defines the term 'recipient' as any natural or a legal person, "whether a third party or not". This means that both internal or external persons should be covered, whether they are employees, agents or external service provider of the controller. In a privacy notice addressed to the employees of a company, for example, all recipients of the employee's data should be identified, such as the HR manager of that company or an external payroll service provider. If it is not possible to identify all the recipients (either because their identity may regularly change, or because the list would be overwhelmingly long), the controllers should at least identify the categories of recipients of the personal data.

The level of details that must be provided under Article 13(1)(e) GDPR with respect to the identity or category of recipients is not entirely clear. Yet, in accordance with the principle of fairness, it is generally agreed that controllers must provide information on recipients which is the most meaningful for data subjects.[15] In practice, this will generally require the controller to name the relevant third party recipients, so that the data subjects is aware of the persons with whom their data will be shared externally. If a controller provides only the categories of recipients, the WP29 considers that this information should be as specific as possible by including a reference to the activities they carry out, the industry, sector/sub-sector and the location of the recipients (e.g. if the controller is located in Austria: the HR manager of the controller; the HR department of the controller's affiliate in Belgium; the competent Austrian tax authorities; a payroll service provider located in Luxembourg; an IT maintenance service provider located in Germany; etc).[16]

As a matter of best practice, and to ensure that the information is both complete, concise and intelligible, controllers can establish a table of recipients, where the different recipients of the personal data are named, or —if categories of recipients are mentioned instead — their sectoral qualification and location is clearly indicated.

(f) International Transfers[edit | edit source]

Article 13(1)(f) GDPR covers information on transfers of personal data to international organisations or third countries, i.e. any country located outside of the European Economic Area.[17] In case of data transfers to third countries, controllers should inform data subjects about the existence of such transfers, name all the relevant countries, and specify the safeguards relied upon. For example, if a controller transfers personal data to a business partner located in Japan, it must list Japan as being one of the transfer location, and mention whether such transfer is based on the Commission's adequacy decision between the EU and Japan,[18] or on standard contractual clauses signed with the data importer.[Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (available here).]

Besides mentioning the third countries or international organizations where data importers are located, the controller must also inform the data subject about the means by which to obtain a copy of the applicable safeguards. For example, if the applicable safeguard is an adequacy decision adopted by the Commission pursuant to Article 45 GDPR, the controller could add an hyperlink[19] redirecting the data subject towards the relevant decision as published on Eur-lex (the official website of EU legislation). Or, if the applicable safeguard is a transfer agreement signed by the controller and the data importer containing the standard contractual clauses referred to in Article 46(2)(c) GDPR, the controller could state that the data subjects may obtain a copy of the agreement upon request, for example by sending an email to the controller or its DPO.[20]

It is worth noting at this stage that data importers are necessarily recipients of personal data in the sense of Article 4(9) GDPR. Hence, all data importers to which personal data are transferred should have already been identified by the controller pursuant to Article 13(1)(e) GDPR, as discussed here above. For the sake of clarity, a controller may thus decide to include the information on data transfers in the table listing the various recipients of the personal data, and in particular the location of the data importer as well as the applicable safeguard.[21]

(2) Obligation to Provide Further Information at the Time When Personal Data are Obtained[edit | edit source]

The second paragraph of Article 13 provides for an additional set of information that must be provided to the data subjects at the time of the collection of the personal data. The distinction between the set of mandatory information listed in first paragraph and in the second paragraph of Article 13 GDPR does not seem to be grounded in any material considerations, or have any practical consequences for the controllers or for the data subjects.[22] In both paragraphs, the expression "the controller shall (...) provide" is used, thereby making the obligation to provide each set of information equally binding. Furthermore, no additional requirement is laid down with respect to the timing or format in which the set of information listed in the second paragraph of Article 13 GDPR must be provided. Finally, the same sanction can be imposed on a controller for a violation of Article 13 GDPR, regardless of whether it concerns information under Article 13(1) or Article 13(2) GDPR.[23] Both paragraphs can therefore be regarded as equally important in terms of information obligations.

(a) Retention Period[edit | edit source]

Article 13(2)(a) GDPR provides that the controller must inform the data subjects regarding the period for which the personal data will be stored (i.e. the 'retention period' or 'storage period'). If it is not possible for the controller to give a specific date or amount of time (for example, because the retention period may vary from one case to another), the criteria used to determine that period should at least be given. As a way of illustration, a controller selling goods online could either indicate that the personal data of the data subject will be stored in the customer database "for 1 year after collection of the data", or "for a period of 3 months from the day of delivery of the good, unless the good is returned, in which case this period is of 1 month from the day of receipt of the returned good".

By making it mandatory for the controller to establish clear retention periods, Article 13(2)(a) GDPR gives concrete expression to the principle of storage limitation enshrined in Article 5(1)(e) GDPR. The underlying logic behind both that principle and provision is to prevent controllers from storing personal data indefinitely after the purposes of the processing have been achieved.

When a controller reaches the end of a retention period, the personal data should either be deleted or fully anonymised (in which case, they would no longer qualify as 'personal data' in the sense of the GDPR).[24] By contrast, archiving personal data, even in a pseudonymised or encrypted form, does not amount to deletion or anonymization. Keeping personal data in digital or physical archives still amount to storing them. Hence, it would be incorrect for a controller to state, for example, that the retention period of the personal data is 5 years, "after which the data will be archived". Rather, the archiving period should be included within the retention period.

As different categories of personal data may be needed for shorter or longer periods of time, depending on the purpose of the processing, controllers should distinguish between those categories and stipulate the applicable retention period for each of them. As a matter of best practice, this information can be provided in the form of a table, or included in the table referencing the categories of data, the purposes of the processing and their respective legal basis. Furthermore, the retention periods - or the criteria used to calculate them - should be specific enough for the data subjects to be able to at least form an idea of how long their personal data will be kept before being deleted or anonymised. For example, it would not be sufficient for the data controller to generically state that personal data will be kept as long as necessary for the legitimate purposes of the processing.[25] Similarly, 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.

When deciding on a retention period for personal data, controllers should pay particular attention to the following:

(i) maximum legal period: sometimes, EU or Member State law puts a clear limitation on the storage of personal data (e.g. for copy of a criminal record, etc). In that case, the controller must respect this maximum period, clearly indicate its length, or indicate that a shorter period will be applicable.

(ii) maximum recommended period: sometimes, although there exists no legally binding provision on how long a type of personal data can be kept, a recommendation was made by a public authority or private body (e.g. recommendation from a DPA regarding CV of job applicants; industry guidelines on laboratory results ; etc). In that case, the controller should ensure that the personal data are not kept for a longer period that the recommended period, and clearly indicate what this period is.

(iii) minimum legal period or minimum recommended period: sometimes, there exists a legal obligation or a recommendation with respect to a minimum storage period (e.g. for employees salary slips). In that case, the controller may decide to erase the personal data as soon as this minimum legal period is passed, or decide to keep them for a longer period. In the latter case, the controller must still decide on a limited and reasonable storage period, keeping in mind in particular the storage limitation principle enshrined on Article 5(1)(e) GDPR.

(iv) no required or recommended period: in most cases, controllers will have to determine themselves a reasonable storage period, using as guidance the cardinal principle according to which personal data should be kept for no longer than is necessary for achieving the purpose of the processing (Article 5(1)(e) GDPR). One of this purpose could be, for example, to protect the interests of the controller against possible (extra-) judicial claims in the future (e.g. proceedings for liability brought by a client after termination of a contract; complaint from a former employee regarding unpaid wages ; etc). As a consequence, controllers may opt for retention periods which correspond to limitation periods established by law for civil or criminal liability (usually, between 3 to 10 years, depending on the nature of the claim). Although this strategy may be acceptable, this should not detract the controllers from respecting the principle of data minimization (Article 5(1)(c) GDPR), according to which the stored personal data should be adequate, relevant and limited to what is strictly necessary in relation to such a purpose. As a consequence, controllers should not indiscriminately apply a 'blanket' storage period for all archived data without proceeding to an ex ante analysis and classification of the relevant and adequate data. Similarly, another processing purpose that could call for long-term archiving of personal data personal data could be scientific or historical research, or to compile statistics for (business) analyses. In that case, however, the controller should implement appropriate technical and organizational measures in order to safeguard the rights and freedoms of the data subject (for example, pseudonymising the personal data; restricting staff access to certain files; implementing multi-factor authentication for security purpose; etc).

(b) Information About Data Subject's Rights[edit | edit source]

The controller should inform the data subject about their rights under data protection law, and in particular their right to access, rectification, erasure, restriction of processing, data portability and their right to object. Strictly speaking, it is not enough to merely inform a data subject 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”.[26] As a matter of best practice, controllers can enumerate these rights in the privacy notice and then refer the data subjects to an annex or another page where those rights and the manner in which they can be exercised are explained in more detail. In addition to this, the GDPR requires controllers to explicitly bring the right to object to the data subject’s attention at the latest at the time of first communication with the data subject, in a clear manner, and separately from any other information.[27] This can be done, for example, the first time an email is sent to the data subject in the context of direct marketing.

(c) Information About the Right to Withdraw Consent[edit | edit source]

According to Article 13(2)(c), the controller must inform the data subject about the existence of the right to withdraw consent at any time, when the legal basis for the processing of the personal data was the consent of the data subject. The WP29 and the EDPB have both written extensive guidelines on the notion of 'consent' under the GDPR.[28] Besides these guidelines, several recitals and provisions of the GDPR define consent and lay down requirements with respect to the method for obtaining consent or allowing its withdrawal. Most importantly, Article 7(3) GDPR prescribes that withdrawing consent should be as easy as giving consent. Hence, although the controller is not under an obligation to guarantee that giving and withdrawing consent can be perform through the same action, it is generally agreed that "when consent is obtained via electronic means through only one mouse-click, swipe, or keystroke, data subjects must, in practice, be able to withdraw that consent equally as easily".[29]

As a matter of best practice, the information regarding the right to withdraw consent should be clearly indicated in the privacy notice of the controller (or in a similar document), and also at the time consent is obtained from the data subject. That way, the attention of the data subjects is drawn to the fact that the processing operation at stake relies on their consent, and that they have the right to put an end to such processing at any time if they change their mind. Besides, in light of the principle of fairness and the various provisions on consent in the GDPR, the possibility to withdraw consent should be given to the data subject every time the latter is being actively tracked or contacted on the basis of such consent. As a way of illustration, if a data subject has subscribed to a newsletter or marketing mailing list, the possibility to unsubscribe from such list should be given to the data subject within every email or communication sent to him on the basis of such consent. Similarly, website visitors should be able to disable cookies as easily as agreeing to cookie usage, and the possibility to withdraw that consent should be given for the entire duration of the browsing session (for example, by clearly displaying a pop-up badge on every page of the website, on which the data subject can click to disable cookies).[30]

(d) The Right to Lodge a Complaint[edit | edit source]

Article 13(2)(d) GDPR provides that the data subject should be specifically informed about the existence of the right to lodge a complaint with a supervisory authority. The complaint may be filed, inter alia, with the supervisory authority in the Member State of the data subject's habitual residence, place of work or of an alleged infringement of the GDPR.[31]

(e) Contractual or Statutory Requirement[edit | edit source]

Article 13(2)(e) GDPR provides that the controller must inform the data subject 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 the possible consequences of failure to provide such data. As a way of illustration, an online shop may require the name and postal address of a customer because it is necessary for the performance of the contract, more particularly for the delivery of the good. Similarly, online forms should clearly identify which fields are “required”, which are not, and what will be the consequences of not filling in the required fields.[32] Also, for certain job positions or professional qualifications, a controller may be required by law to verify that the applicant does not have any criminal record. Failure to provide such data may bar the data subject from obtaining that position or qualification. When providing personal data is a legal or contractual requirement, this should be brought to the attention of the data subject. It should also be clearly indicated whether failure to provide such information will have negative consequences for the data subject, such as the impossibility to enter into a contract or be offered a job position. Controllers who abuse from their position of power by obliging a data subject to provide personal data when the latter are not required by law or necessary for the performance of a service may however be in breach of the GDPR, and in particular of the conditions to obtain valid consent (Article 7 GDPR), or of the principle of lawfulness, fairness and transparency (Article 5(1)(a) GDPR) and of the provision relating to valid consent. The EDPB has already stated for example that so-called 'cookies walls', which prevent access to a website if the users do not accept cookies, with no other reasonable alternative, are not a valid method to obtain the 'freely given' consent of data subjects.[33]

(f) Automated Decision-Making[edit | edit source]

Article 13(2)(f) GDPR provides that the data subject should be informed about the existence of automated automated-decision making (including profiling), as referred to in Article 22(1) GDPR. In short, automated decision-making (hereafter, ADM) qualifies as such under the GDPR when three constitutive elements can be identified: (i) a decision; (ii) taken solely by automated mean (i.e. without any human involved in the decision-making process); (iii) which produces legal effects or similarly significant effects on the data subject. As a way of illustration, if a recruiter relies on a smart algorithm to select the best profile, among a pool of candidates, for a job offer, the use of such a smart algorithm will qualify as ADM under the GDPR, both for the data subject who has been selected, and for the data subjects who have been rejected.

As made clear by Article 13(2)(f) GDPR, in the event a controller relies on an ADM, the data subjects must be informed about it. More particularly, the controller is under the duty to provide the data subject with "meaningful information" about the logic involved, the significance and the (possible) consequences of this ADM on him or her. The use of the term "meaningful" has triggered a lot of debates among scholars,[34] as to whether Article 13(2(f) GDPR would provide a reinforced right to information when it comes to ADM, if not an ex post 'right to explanation' or 'right to understand' once this provision is read in combination with Article 22(3) GDPR and Recital 71 GDPR.

The rationale behind this reinforced right to information lies in the complexity of algorithms and machine-learning, which sometimes operate in obscure ways, and may not be perceivable or understandable for data subjects. Given that the purpose of that provision is to ensure that the data subject obtains "meaningful information" about the ADM, simply disclosing the code behind the ADM or providing a complex explanation of the algorithms would in principle not be suitable or sufficient. Rather, the controller should highlight the criteria on the basis of which the decision is made, so that the data subject can understand the main reasons behind the decision.[35] In line with Article 12(1) GDPR, such information should be concise yet complete, intelligible, and given in clear and plain language.

As a matter of best practice, controllers should thus fully understand how the ADM function themselves, in order to be able to provide the required information. Ideally, the controller would adopt a layered approach, first focusing on the logic involved, and subsequently highlighting the significance and envisaged consequences of the processing of different categories of data within the ADM process.[36]

(3) Information on the Further Processing of Personal Data[edit | edit source]

Article 13(3) GDPR covers situations where a controller decides to process personal data for a novel purpose. More specifically, this Article provides that where a controller intends to process personal data for a purpose that had not been primarily envisaged, the data subject must be informed about the new purpose prior to that further processing. In practice, this would mean that controllers must update their privacy notice (and, ideally, notify those changes to the data subjects) prior to using the personal data in pursuit of this new objective.

It is important to recall in this respect that the processing of personal data for purposes other than those for which the personal data were initially collected are allowed only where the processing is compatible with the purposes for which the personal data were initially collected.[37] In such a case, no legal basis separate from that which allowed the collection of the personal data is required. To appreciate the compatibility of various purposes, the controller should take into account, among others, the existence of a link between the original and additional purpose, the general context in which the data are processed, and also the reasonable expectations of the data subjects.[38] As a general rule, further processing for scientific or historical research purposes, or further processing for statistical purposes should be considered to be compatible lawful processing operations.[39] Hence, if a controller, after having collecting personal data and processed them for business purpose, intends to keep a certain category of data for statistical purposes, it should update its privacy policy to include this new purpose, as well as all the relevant information which must accompany this new entry (e.g. storage period; recipient of the personal data (for example, if the statistics are collected or analyzed by a third party; etc).

(4) Exemptions[edit | edit source]

Article 13(4) GDPR covers situation where the data subject was already provided with the information, either because the controller has already provided it in the past, or because a third party did it on its behalf (for example, a processor). In that scenario, of course, the controller is exempted from the obligation to provide the same information a second time.

Decisions[edit | edit source]

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

References[edit | edit source]

  1. EDPB, ‘Binding decision 1/2021 on the dispute arisen on the draft decision of the Irish Supervisory Authority regarding WhatsApp Ireland under Article 65(1)(a) GDPR’, 28 July 2021, pp. 39-41 (available here).
  2. Article 14 GDPR applies in situations where personal data have not been obtained from the data subjects but rather from a third party (i.e. indirect collection). Both provisions however have a similar structure and content, as they both describe the specific pieces of information that controllers must provide to data subjects.
  3. EDPB, ‘Binding decision 1/2021 on the dispute arisen on the draft decision of the Irish Supervisory Authority regarding WhatsApp Ireland under Article 65(1)(a) GDPR’, 28 July 2021, pp. 39-41 (available here).
  4. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 18 (available here).
  5. Zanfir-Fortuna, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 13, p. 427 (Oxford University Press 2020).
  6. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 35 (available here).
  7. See, Article 38(4) GDPR. For more information in that respect, see Commentary on Article 37 GDPR to Article 39 GDPR). If a DPO is indeed designated, Article 13(1)(b) GDPR makes it mandatory for the controller to provide to the data subjects the contact details of the DPO.
  8. WP29, ‘Guidelines on Data Protection Officers (‘DPOs’)’, 16/EN WP243 rev.01, 5 April 2017, p. 13 (available here).
  9. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, pp. 35-36 (available here).
  10. WP29, ‘Guidelines on Consent under Regulation 2016/679’, 17/EN WP259 rev.01, 10 April 2018, p. 22 (available here); WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, pp. 7-8 (available here).
  11. See, for example, Data Protection Commission, Decision of the Data Protection Commission made pursuant to Section 111 of the Data Protection Act, In the matter of WhatsApp Ireland Limited, IN-18-12-2, 20 August 2021, margin numbers 593-595 (available here).
  12. Article 12(1) GDPR provides in particular that the information should be "concise, transparent, intelligible and easily accessible".
  13. EDPB, ‘Binding decision 1/2021 on the dispute arisen on the draft decision of the Irish Supervisory Authority regarding WhatsApp Ireland under Article 65(1)(a) GDPR’, 28 July 2021, pp. 16-17 (available here).
  14. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 36 (available here).
  15. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 37 (available here).
  16. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 37 (available here).
  17. The European Economic Area (EEA) comprises the 27 Member States of the EU, plus Iceland, Liechtenstein and Norway. See Agreement on the European Economic Area, 3 January 1994, p. 3 (available here).
  18. Commission Implementing Decision (EU) 2019/419 of 23 January 2019 pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council on the adequate protection of personal data by Japan under the Act on the Protection of Personal Information (available here).
  19. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, pp. 37-38 (available here).
  20. Hence, this shows the importance to provide the contact details of the controller and the DPO (where applicable), as provided for in Article 13(1)(a) and (b) GDPR.
  21. For more information on the various safeguards that may apply for data transfers, please refer to the Commentary on Article 44 GDPR and following.
  22. Zanfir-Fortuna, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 13, p. 428 (Oxford University Press 2020).
  23. More specifically, Article 83(5)(b) GDPR provides that if a controller fails to inform a data subject pursuant to Article 13 GDPR, the latter may be subject to an administrative fine up to 20 million EUR or up to 4% of the total worldwide annual turnover of the preceding financial year, whichever is the higher. No distinction is made between the information to be provided under Article 13(1) or 13(2) GDPR.
  24. Personal data will however only be considered as fully anonymised and therefore fall outside of the scope of application of the GDPR if the anonymisation is robust enough. See, in this respect, WP29, ‘Opinion 05/2014 on Anonymisation Techniques’, 0829/14/EN WP216, 10 April 2014 (available here).
  25. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 38 (available here).
  26. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 39 (available here).
  27. Article 21(4) GDPR and Recital 70, which applies in the case of direct marketing.
  28. WP29, ‘Opinion 15/2011 on the definition of consent’, 01197/11/EN WP187, 13 July 2011 (available here); and EDPB, ‘Guidelines 05/2020 on consent under Regulation 2016/679’, 4 May 2020 (Version 1.1) (available here).
  29. EDPB, ‘Guidelines 05/2020 on consent under Regulation 2016/679’, 4 May 2020 (Version 1.1), p. 23 (available here).
  30. See, for example the technical solutions enumerated by Cookie Script for implementing a "Cookie badge" (accessed on 30 September 2021) (available here).
  31. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 39 (available here). For more information regarding this right, please refer to the Commentary on Article 77 GDPR.
  32. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 40 (available here).
  33. EDPB, ‘Guidelines 05/2020 on consent under Regulation 2016/679’, 4 May 2020 (Version 1.1), p. 12 (available here).] and may thus lead to a breach of Article 7 GDPR. For more information on this topic, please refer to the Commentary on Article 7 GDPR.
  34. See, among others, Malgieri and Comandé, ‘Why a Right to Legibility of Automated Decision-Making Exists in the General Data Protection Regulation’, International Data Privacy Law 7, no. 4 (1 November 2017), p. 243–65 (available here); Goodman and Flaxman, ‘EU Regulations on Algorithmic Decision-Making and a “right to Explanation” (available here); Edwards and Veale, ‘Slave to the Algorithm? Why a 'Right to an Explanation' Is Probably Not the Remedy You Are Looking For’, Duke Law & Technology Review (available here); Wachter, Mittelstadt, Floridi; ‘Why a Right to Explanation of Automated Decision-Making Does Not Exist in the General Data Protection Regulation’, in International Data Privacy Law, Volume 7, Issue 2, pp. 76–99 (available here); Selbst and Powles, Meaningful information and the right to explanation, International Data Privacy Law, Volume 7, Issue 4, 1 November 2017, Pages 233–242 (available here).
  35. WP29, ‘Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679’, 17/EN WP251 rev.01, 3 October 2017, p. 25 (available here).
  36. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 19 (available here).
  37. Recital 50 GDPR.
  38. Recital 50 GDPR.
  39. Article 5(1)(b) GDPR.