Article 13 GDPR: Difference between revisions

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===(2) Obligation to Provide Further Information at the Time When Personal Data are Obtained ===
===(2) Obligation to Provide Further Information at the Time When Personal Data are Obtained ===
Article 13 provides for a second set of mandatory information that must be provided to the data subjects in a subsequent paragraph. The distinction between the first paragraph and the second paragraph of Article 13 GDPR does not seem to have any practical consequence
Article 13 provides for a second set of mandatory information that must be provided to the data subjects in a subsequent paragraph. The distinction between the first paragraph and the second paragraph of Article 13 GDPR does not seem to be grounded in any material consideration, or have any practical consequence on the part of the controller or of the data subject.<ref>Zanfir-Fortuna, Article 13, in The EU General data protection regulation, A commentary, edited by Kuner, Bygrave and Docksey, p. 428.</ref> In both paragraph, the expression "''the controller shall (...) provide''" is used, thereby making the obligation to provide the pieces of information listed under paragraph 2 equally binding.


====(a) Retention Period====
====(a) Retention Period====

Revision as of 14:55, 29 September 2021

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

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

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 on Article 13

(1) Information the Controller Shall Provide at the Time that Personal Data is Obtained

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] In that sense, Article 13 GDPR can be considered as an expression of the principle of transparency. While Article 13 GDPR applies in situations where personal data are collected directly from the data subjects, the following provision - Article 14 GDPR - applies when personal data have not been obtained from the data subjects, but from a third party. 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. 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”.[2]

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, of a hard-copy document, or of an online data protection notice, commonly referred to as 'privacy policy' or 'privacy notice'. Further information on the format of such data protection notice can be found on the Commentary on Article 12 GDPR.

Regardless of the format of the notice, 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, but requires nonetheless the controller to be proactive in giving the information.[3] 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.[4] 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 of the actual collection of the personal data.

(a) Identity and Contact Details of the Controller

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.)”.[5] 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

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[6] (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.

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.[7] 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

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.[8] 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.[9]

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.[10] In practice, to reconcile the obligation to provide both complete and concise information to the data subjects[11], 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

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.[12]

The WP29[13] furthermore considers 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

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 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 [16] (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).

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

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.[19]

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.[20] For example, if the applicable safeguard is an adequacy decision adopted by the Commission, the controller can add an hyperlink[21] 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 data transfer agreement signed by the controller and the data importer, the controller could for example state that the data subjects may obtain a (redacted) copy of the agreement upon request, for example by sending an email to the controller or its DPO.[22]

It is worth noting at this stage that data importers are necessarily recipients of personal data. Hence, all data importers should have already been identified by the controller pursuant to Article 13(1)(e) GDPR. 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.

For more information on the various safeguards that may apply for data transfers, please refer to our Commentary on Article 44 GDPR and following.

(2) Obligation to Provide Further Information at the Time When Personal Data are Obtained

Article 13 provides for a second set of mandatory information that must be provided to the data subjects in a subsequent paragraph. The distinction between the first paragraph and the second paragraph of Article 13 GDPR does not seem to be grounded in any material consideration, or have any practical consequence on the part of the controller or of the data subject.[23] In both paragraph, the expression "the controller shall (...) provide" is used, thereby making the obligation to provide the pieces of information listed under paragraph 2 equally binding.

(a) Retention Period

The retention periods should be specific to the category of personal data concerned, or, at the very least, should allow the data subject to assess the duration of data retention based on their 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

The controller should inform the data subject about their rights to access, rectification, erasure, restriction on processing, objection to processing and data portability. 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”.[24]

(c) Information About the Right to Withdraw Consent

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(d) The Right to Lodge a Complaint

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 or at his or her place of work.[25]

(e) Contractual or Statutory Requirement

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(f) Automated Decision-Making

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 data subjects 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.[26]

(3) Information on the Further Processing of Personal Data

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(4) Exceptions Where Data Subject Already has Information

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Decisions

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

References

  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, adopted on 28 July 2021, pt. 190
  2. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 7.
  3. WP29, Transparency Guidelines, op. cit., p. 16.
  4. Zanfir-Fortuna, Article 13, in The EU General data protection regulation, A commentary, edited by Kuner, Bygrave and Docksey, p. 427.
  5. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 35.
  6. Article 38(4) GDPR.
  7. WP29, Guidelines on data Protection Officers ('DPOs'), last revised and adopted on 5 April 2017, WP 243 rev.01, p. 19.
  8. WP29, Transparency Guidelines, op. cit., p. 35-36.
  9. WP29, Guidelines on Consent under Regulation 2016/679, 10 April 2018, p. 22; WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 8.
  10. See, for example, Decision of the Data Protection Commission made pursuant to Section 111 of the Data Protection Act, 2018 and Articles 60 and 65 of the General Data Protection Regulation, DPC Inquiry Reference: IN-18-12-2, dated 20 August 2021, pt. 593 to 595.
  11. Article 12(1) GDPR provides in particular that the information should be "concise, transparent, intelligible and easily accessible".
  12. 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, adopted on 28 July 2021, pt. 57.
  13. now replaced by the EDPB.
  14. WP29, Transparency Guidelines, p. 36.
  15. See, inter alia, WP29, Transparency Guidelines, op. cit., p. 37
  16. WP29, Transparency Guidelines, op. cit., p. 37.
  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, OJ No L 1, 3.1.1994, p. 3; and EFTA States’ official gazettes.
  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 (Text with EEA relevance), OJ L 76, 19.3.2019, p. 1–58.
  19. 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 (Text with EEA relevance), OJ L 199, 7.6.2021, p. 31–61.
  20. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, pp. 37-38.
  21. WP29, Transparency Guidelines, op. cit., p. 38.
  22. Hence, 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.
  23. Zanfir-Fortuna, Article 13, in The EU General data protection regulation, A commentary, edited by Kuner, Bygrave and Docksey, p. 428.
  24. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 39.
  25. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 39.
  26. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 14.