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 are provided by the controllers in the form of a data protection notice, commonly called 'privacy policy' or 'privacy notice', and generally made available on the website of the controller, or as part of the annexes of a contract. Regarding the specific format of such data protection, reference is made to the Commentary on Article 12 GDPR.

(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.)”.[3] 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[4] (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.[5] 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. 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.[6]

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 bases are applicable 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.[7]

(d) Legitimate Interests

Article 13When 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

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.[8]

(f) International Transfers

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 GDPR, standard contractual clauses, derogations, etc.), and provide for the means to access or obtain the relevant documents.[9]

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

(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”.[10]

(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.[11]

(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.[12]

(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, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 35.
  4. Article 38(4) GDPR.
  5. WP29, Guidelines on data Protection Officers ('DPOs'), last revised and adopted on 5 April 2017, WP 243 rev.01, p. 19.
  6. 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.
  7. 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.
  8. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 37.
  9. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, pp. 37-38.
  10. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 39.
  11. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 39.
  12. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 14.