Article 14 GDPR

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Article 14: Information to be provided where personal data have not been obtained from the data subject
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Chapter 10: Delegated and implementing acts

Legal Text


Article 14: Information to be provided where personal data have not been obtained from the data subject

1. Where personal data have not been obtained from the data subject, the controller shall provide the data subject with 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) the categories of personal data concerned;
(e) the recipients or categories of recipients of the personal data, if any;
(f) where applicable, that the controller intends to transfer personal data to a recipient in 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 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 provide the data subject with the following information necessary to ensure fair and transparent processing in respect of the data subject:

(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) where the processing is based on point (f) of Article 6(1), the legitimate interests pursued by the controller or by a third party;
(c) 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 and to object to processing as well as the right to data portability;
(d) where 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;
(e) the right to lodge a complaint with a supervisory authority;
(f) from which source the personal data originate, and if applicable, whether it came from publicly accessible sources;
(g) 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. The controller shall provide the information referred to in paragraphs 1 and 2:

(a) within a reasonable period after obtaining the personal data, but at the latest within one month, having regard to the specific circumstances in which the personal data are processed;
(b) if the personal data are to be used for communication with the data subject, at the latest at the time of the first communication to that data subject; or
(c) if a disclosure to another recipient is envisaged, at the latest when the personal data are first disclosed.

4. Where the controller intends to further process the personal data for a purpose other than that for which the personal data were obtained, 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.

5. Paragraphs 1 to 4 shall not apply where and insofar as:

(a) the data subject already has the information;
(b) the provision of such information proves impossible or would involve a disproportionate effort, in particular for processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, subject to the conditions and safeguards referred to in Article 89(1) or in so far as the obligation referred to in paragraph 1 of this Article is likely to render impossible or seriously impair the achievement of the objectives of that processing. In such cases the controller shall take appropriate measures to protect the data subject's rights and freedoms and legitimate interests, including making the information publicly available;
(c) obtaining or disclosure is expressly laid down by Union or Member State law to which the controller is subject and which provides appropriate measures to protect the data subject's legitimate interests; or
(d) where the personal data must remain confidential subject to an obligation of professional secrecy regulated by Union or Member State law, including a statutory obligation of secrecy.

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

Together with Article 13, Article 14 GDPR gives expression to the principle of transparency enshrined in Article 5(1)(a) GDPR and further defined in Article 12 GDPR. While Article 13 GDPR applies in situations where personal data are collected directly from the data subjects (i.e. through the filling out of an electronic form), 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). In general, this measure avoids secret personal data collection, with all the attached shortcomings. The provision therefore requires controllers to provide specific information to the data subjects shortly after obtaining the data.[1]

(1) Information the controller shall provide when personal data has not been obtained from the data subject

Relationship with Article 13 GDPR

Since Article 13 GDPR and Article 14 GDPR are almost identical in content. The original proposal for the GDPR by the European Commission has, for good reasons, treated both situations in one Article. However in the political process the Article was duplicated and adapted for the two different situations. The Commentary below will mostly refer to the corresponding sections of the Commentary on Article 13 GDPR. Only substantial differences between those two Articles will be discussed below.

In practice, information under Article 13 and 14 GDPR are usually provided in a single privacy policy. There is no requirement to separate the information, as long as the information is easily available to data subjects.

Data not obtained from the data subject

A data is not obtained directly from the data subject when the latter is not involved in any way in the collection operations.[2] This includes situations where controllers collect data that is generally available ("open source information"), information from external data providers, various business partners, information provided by other natural persons (on various platforms) and alike. This also includes situations where multiple controllers work together, such as an online shop, who provides personal data to the payment service provider and the delivery service - who all receive personal data, without obtaining it directly from the data subject. Equally, situations where personal data is "obtained" by a new controller after the previous controller chased to exist via a merger, acquisition or alike, Article 14 GDPR applies.

Case-law: The Provincial Administrative Court for Warsaw (Wojewódzki Sąd Administracyjny w Warszawie) decided that a controller collecting entrepreneurs’ personal data from open records for the purpose of providing commercial services is obliged to fulfill the information obligation directly in relation to those persons (WSA Warsaw - II SA/Wa 1030/19).[3]

Information must be (actively) provided

While in the context of Article 13 GDPR a link or other option where a data subject can reasonably retrieve the information may be "adequate" (within the meaning of Article 12(1) GDPR), the term "provide" may need to be interpreted differently, in the light of Article 12(1) GDPR, in situations where personal data is not obtained directly from a data subject and the data subject is therefore unaware of the processing. The fact that Article 14(5)(b) GDPR sees the mere publication of information merely as an alternative if the "provision of such information proves impossible or would involve a disproportionate effort" indicates from a systematic perspective, that the legislator has not foreseen the mere publication as sufficient in a standard situation under Article 14 GDPR. In summary, the controller is obliged to take "appropriate" measures to ensure that the data subject is realistically made aware of information under Article 14 GDPR.

(a) Identity and contact details of the controller

Given the identical wording, see commentary on Article 13(1)(a) GDPR.

(b) Contact details of the data protection officer

Given the identical wording, see commentary on Article 13(1)(b) GDPR.

(c) Purposes and legal basis

Given the identical wording, see commentary on Article 13(1)(c) GDPR.

(d) Categories of personal data

In an Article 14 scenario, the legislator found it necessary to also require a list of the categories of personal data that were obtained, because the data controller has obtained the personal data from a source other than the data subject, who is therefore usually unaware of the specific categories of personal data that have been obtained. The rationale behind that provision is to allow the data subjects to contextualize the processing and better understand its material scope. When data are directly collected from the data subjects, as envisaged in Article 13 GDPR, the latter normally already know which data are being processed since they provided them to the controller (for example, by filling an online form, agreeing to cookies usage, etc). By contrast, when the controller obtains the data from a third party, as envisaged in Article 14 GDPR, the data subjects may not be aware of which personal data are being processed, hence the importance of providing this additional piece of information to them.[4]

The additional benefit of Article 14(1)(d) GDPR may be questionable, if one agrees that Article 14(1)(c) (see commentary on Article 13(1)(c) GDPR) already requires to link purposes, legal basis and the processed data, to ensure understandable and transparent processing. In this reading Article 14(1)(d) GDPR becomes largely redundant.

The term "category" is not defined in the GDPR. The enumeration of "special categories" of personal data in Article 9 GDPR (e.g. data relating to health, political opinions, ethnic origin, religious beliefs, sexual orientation, etc) does not serve as a definition, just because the same word is used. Simply referring to "health data" as a category would be too broad to comply with the transparency obligations under Article 5(1)(a) and 12(1) GDPR, given that it may cover one simple information, such as the weight of the data subject, or on the contrary "a myriad of information",[5] such as the weight, height, heat rate, blood pressure, HIV status, cancer treatments and much more.

In any case, the controller should be specific enough to meet the requirements of Article 5(1)(a) and 12(1) GDPR, to comply with the principle of fairness and transparency, while presenting such information in a concise and intelligible form. The level of detail is debatable, but in practice this may mean, that a controller may draft a table of data fields (e.g. name, address, email) and group them into detailed enough categories (like "name" and "contact details"). It seems questionable if it can be "adequate" and "transparent" within the meaning of Article 12(1) GDPR if information that is clearly available to the controller is deliberately not shared, at the same time Article 14(1)(d) only requires "categories". In cases where a controller does not disclose the personal data in sufficient detail, data subjects can always request more information under Article 15 GDPR.

Example: A data broker collects information about data subjects from various sources, including cookie data, IP addresses, user IDs from various platforms and email addresses. It is not transparent to only state that the controller collects "data about online behaviour". It would be "appropriate" within the meaning of Article 12(1) GDPR to list the ten or twenty data types that are collected, given that this amounts to no relevant effort by the controller and would ensure full transparency, as well as using clear and plain language.

(e) Recipients

Given the identical wording, see commentary on Article 13(1)(e) GDPR.

(f) International transfers

Given the identical wording, see commentary on Article 13(1)(f) GDPR.

(2) Obligation to provide further information at the time when personal data are obtained

(a) Retention period

Given the identical wording, see commentary on Article 13(2)(a) GDPR.

(b) Legitimate interests

Given the identical wording, see commentary on Article 13(1)(d) GDPR.

(c) Information about data subject's rights

Given the identical wording, see commentary on Article 13(2)(b) GDPR.

(d) Information about the right to withdraw consent

Given the identical wording, see commentary on Article 13(2)(c) GDPR.

(e) The right to lodge a complaint

Given the identical wording, see commentary on Article 13(2)(d) GDPR.

(f) Source of personal data

In case of indirect collection of personal data, Article 14(2)(f) GDPR requires the controller to inform the data subjects about the source of such data. A source may be another entity or party, but also includes a technical source (like open sources, sensors, CCTV or online tracking tools).[6]

If the data have been obtained from a publicly accessible source, the controller must indicate it (for instance, online newspapers, social networks, other publicly accessible sources). In most cases, however, controllers may obtain personal data from third parties, for example from data brokers, affiliates, business partners or other controllers.[7] To comply with data protection principles such as data protection by design and by default, it is important to incorporate transparency mechanisms into processing systems during the system's design and implementation phase. By doing so, organizations can effectively track and trace all personal data sources that are received into their systems throughout the data processing life cycle, enabling them to be fully transparent about their data handling practices.[8] The difficulty to trace back the source(s) of the personal data should however not be systematically used as an excuse by the controller, or be the result of the controller's own negligence, or representative of a failure to implement the principle of privacy by default and by design.[9]

(g) Automated decision-making

Given the identical wording, see commentary on Article 13(2)(f) GDPR.

(3) Time at which information on processing should be provided

Another difference between Article 13 and 14 GDPR concerns the time at which the information must be provided to the data subjects. Under Article 14(3) GDPR, three different scenarios are regulated, each having their own time limit. The tree requirements apply in parallel. Whichever deadline lapses first, will trigger the requirement to provide the information. Obviously these are just the last moments when information has to be provided, a controller can always provide information at an earlier, maybe more convenient moment.

(a) Within a reasonable period from collection, but at the latest one month

Article 14(3) GDPR introduces a general rule, according to which controllers must provide the mandatory information to data subjects "within a reasonable period after obtaining the personal data", and at the latest within a month from the day of the indirect collection. In cases where data is acquired from external providers or shared within the group or between authorities, the new controller must take necessary action instantly - but no later than one month. The mentioned "specific circumstances" may be concern the impact on the data subject if he or she is not instantly informed, but also the necessary time to deliver such information (e.g. if only a postal address is known).

(b) When the first communication with the data subject occurs

Article 14(3)(b) GDPR states that if the indirectly obtained personal data are to be used for communication with the data subject, then the controller must provide all mandatory information under Article 14 GDPR "at the latest at the time of the first communication to that data subject."[10] If the contact is not made within the first month of the collection of the data however, the general rule established under Article 13(3)(a) GDPR should apply instead (i.e. time limit of one-month as a maximum).

(b) When the disclosure of personal data takes place

Article 14(3)(c) GDPR states that if the personal data are to be disclosed to another recipient, then the controller must provide all mandatory information under Article 14 GDPR "at the latest when the personal data are first disclosed". If the disclosure is not made within the first month of the collection of the data, however, the general rule established under Article 13(3)(a) GDPR should apply instead (i.e. time limit one-month as a maximum).

Example: A recruitment agency collects publicly available personal data from various platforms such as LinkedIn or Xing in order to contact specific profiles about new career opportunities, the recruitment agency must add a privacy notice containing all information listed in Article 14(2) and (3) in the first email or message sent to these data subjects. However, if the recruitment agency delays this first communication beyond one month, the information must in any case be provided within the general applicable one-month time limit.

(4) Information on the Further Processing of Personal Data

Given the identical wording, see commentary on Article 13(3) GDPR.

(5) Exemptions

According to Article 14(5), the first four paragraphs of the provision do not apply if one of the following conditions is met: (a) the data subject is already informed; (b) providing the information is impossible or requires disproportionate effort; (c) the collection or disclosure of the data is required by an EU or Member State law; and finally, (d) in case the data must remain confidential due to professional secrecy. Controllers may not abusively rely on these exemptions which must be interpreted restrictively and applied narrowly.[11]

(a) Data subject already informed

Given the identical wording, see commentary on Article 13(4) GDPR.

(b) Providing the information proves impossible, requires disproportionate efforts, involves serious impairment

Under Article 14(5)(b), the controller does not have to comply with the obligation to provide information outlined in Articles 14(1), 14(2), and 14(4) GDPR[12] when this (i) proves impossible, or (ii) involves a disproportionate effort (in particular, for archival, scientific, historical research, or statistical purposes), or (iii) is likely to seriously impair the objectives of the processing. In all such cases, appropriate measures must be adopted to protect the data subject’s rights and freedoms and legitimate interests, which would at least require the publication of the information (Article 14(5)(b) GDPR).

(i) Proves impossible

Under Article 14(5)(b) GDPR the scenario in which providing information is deemed "impossible" is a binary one, as something is either possible or impossible with no gradations in between. Therefore, if a data controller intends to use this exemption, it must explain the specific factors that make it impossible to providing the relevant information to the data subject. Furthermore, if these factors cease to exist after a certain time, and it becomes feasible to provide the information to the data subjects, the data controller should promptly do so. In reality, there will be very few instances where a data controller can establish that it is genuinely impossible to supply information to data subjects.[13]

If partial elements cannot be provided, the controller must still provide as much information as possible. For example, if the specific source cannot be named, then the controller should at least provide general information regarding the source(s),[14] such as their nature (i.e. public or private) or the types of organization, industry or sector concerned (e.g. national register of companies).[15]

(ii) Involves disproportionate efforts, archival, scientific, historical research, or statistical purposes

The controller must demonstrate that the provision of information to the data subjects would involve a disproportionate effort, notably because of the number of data subjects, or the age of the data (Recital 62). Where a data controller seeks to rely on this exception, it should carry out a balancing test, which weighs, on the one side, the cost or impact of the investment and efforts to be made and, on the other, the effects that the absence of information could have on the data subjects.[16]

It is rather common that controllers arrive at a negative outcome in this balancing test, which would deprive Article 14 GDPR of any practical meaning. The mere fact that a controller processes information about large numbers or data subjects can for example not be a reason to see a "disproportionate effort", given that the impact of the processing activity is increasing in an equally linear fashion as the extra effort to inform a larger number of people.[17] Otherwise larger controllers would almost always be freed of the duties under Article 14 GDPR, which would make secret collection of personal data the norm - not the exception.

Example: A address broker has - by definition - the addresses of most persons in its database. Just the mere fact that it holds information about almost ever resident of a given country, does not mean that informing data subjects that their addresses are collected, stored and sold to third parties would always be "disproportionate".

"Archival, scientific, historical research or statistical purposes" are named as typical examples where this condition may be met. Archives would often have to dig through millions of documents and inform everyone named or national statistics offices would have to inform every resident. In the drafting process of the GDPR, these purposes were also a common ground for various privileges (see Article 5(1)(b) GDPR or Article 89 GDPR). However, these purposes are not exempt per se, but must still undertake a balancing test - just with a hint from the legislator that they are more likely to arrive at a result that points at not informing people directly.[18]

Example: A pharmaceutical company gets patient data to conduct further research. If the pharmaceutical company has the electronic contract details of patients or it only concerns a reasonably small group it would usually not be "disproportionate" to inform them.

If the assessment of the "balancing test" is negative, this assessment must be documented and must result in the implementation of appropriate measures (see below).

(iii) Render impossible or seriously impair the objective of the processing

Article 14(5)(b) GDPR covers a final scenario where a data controller's disclosure of information to a data subject in accordance with Article 14(1) GDPR could potentially hinder or make it impossible to achieve the intended processing objectives. To utilize this exception, data controllers must demonstrate that providing the information stated in Article 14(1) on its own would render the processing objectives null and void. It's important to note that this particular aspect of Article 14(5)(b) assumes that the data processing conforms to all of the principles outlined in Article 5 GDPR, particularly that the processing of personal data is fair and has a legal basis under all circumstances.[19] This exemption may apply to situations where confidentiality is necessary to protect the investigation and ensure its success.

Example: A private detective is hired to investigate suspected misconduct by a person. If the investigation is based on strong enough suspicions, the detective is not required to provide the person with information under Article 14(5)(b) until the investigation is completed, even if it takes longer than the one-month deadline outlined in Article 14.3(a) GDPR. However, the detective must provide the information to the person at the latest at the end of the investigation, as required by Article 14(3)(b). [20]

Appropriate measures to be taken instead of the provision of information

In case the controller relies on any of the exceptions outlined in Article 14(5)(b), it is required to implement appropriate measures that safeguard the data subject's rights, freedoms and legitimate interests. These measures are aimed at compensating for the lack of transparency that results from not providing information. A controller can do this in a number of ways, but the law requires to at least publish the information (e.g. by putting the information on its website, or by proactively advertising the information or by posting information on its premises). Read in the light of Article 12(1) GDPR, these efforts must reasonably reach the relevant data subjects - taking into account that a data subject does not know about the processing and will therefore not seek the information. Other appropriate measures, in addition to making the information publicly available, will depend on the circumstances of the processing.

(c) Collection or disclosure of data is required by EU or Member State law

Article 14(5)(c) permits the data controller to waive the information requirements outlined in Articles 14(1), 14(2), and 14(4) when obtaining or disclosing personal data is explicitly mandated by Union or Member State law to which the controller is subject. However, this exemption is subject to certain conditions. Firstly, the law in question must provide adequate measures to protect the data subject's legitimate interests. Secondly, the law should specifically address the data controller, and the obtaining or disclosure in question should be mandatory for the data controller, not optional. The data controller must demonstrate how the law applies to them and requires them to obtain or disclose the personal data. While it is the responsibility of Union or Member State law to provide appropriate measures to protect the data subject's interests, the data controller must ensure that its obtaining or disclosing of personal data complies with those measures and should inform data subjects that it is doing so in accordance with the law, unless there's a legal prohibition preventing them from doing so.[21] Finally, Member States may legislate, in line with Article 23 GDPR, for additional specific restrictions to the right to transparency under Article 12 and to information under Articles 13 and 14 GDPR.[22]

Example: An employer is required to report the salaries of all employees to the tax authority under national law. The personal data is not obtained from the data subjects and therefore the tax authority is subject to the requirements of Article 14. As the obtaining of the personal data by the tax authority from employers is expressly laid down by law, the information requirements in Article 14 do not apply to the tax authority in this instance. However, the employer must still name the authority as a recipient under Article 13(1)(e) GDPR.

(d) Data must remain confidential due to professional secrecy

Article 14(5)(d) GDPR provides an exemption from the information requirement for data controllers when personal data must remain confidential under a professional secrecy obligation regulated by Union or Member State law, including statutory obligations of secrecy. This is especially relevant for certain sectors, like the health care sector or the the legal sector. If a data controller wishes to rely on this exemption, they must demonstrate that they have correctly identified the exemption and explain how the professional secrecy obligation specifically pertains to the data controller in such a way that it prohibits them from providing all of the information outlined in Articles 14(1), 14(2), and 14(4) to the data subject.[23]

In case the controller relies on any of the exceptions outlined in Article 14(5)(b), it is required to implement appropriate measures that safeguard the data subject's rights, freedoms and legitimate interests. These measures are aimed at compensating for the lack of transparency that results from not providing information. A controller can do this in a number of ways, for instance by putting the information on its website, or by proactively advertising the information in a newspaper or on posters on its premises. Other appropriate measures, in addition to making the information publicly available, will depend on the circumstances of the processing, but may include: undertaking a data protection impact assessment; applying pseudonymisation techniques to the data; minimising the data collected and the storage period; and implementing technical and organisational measures to ensure a high level of security

Decisions

→ You can find all related decisions in Category:Article 14 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’, 28 July 2021, pp. 39-41 (available here pp. 39-41).
  2. This hypothesis excludes scenarios where the data subject provides the information directly (for example, through signing up for an app) or where the controller acquires the data in the presence of the data subject, but without their conscious, active contribution (i.e. a TV crew filming the data subject on the street during a protest). In such cases, the data is considered to be acquired directly from the data subject and, subject to the relevant exceptions (e.g. Article 13(4) GDPR), the applicable provision is Article 13 GDPR.
  3. WSA Warsaw - II SA/Wa 1030/19
  4. Collecting data from third parties hinders the data subject's ability to acquire information about the processing of their data, and also makes it less transparent, thereby increasing the likelihood of incorrect data collection. Thus, to uphold the principle of transparent and fair data processing as a crucial aspect of informational self-determination, it is necessary to implement compensatory measures. See, Dix, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 14 GDPR, margin number 1 (C.H. Beck 2019).
  5. Zanfir-Fortuna, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 14, p. 444 (Oxford University Press 2020).
  6. Bäcker, in Kühling, Buchner, DS-GVO BDSG, Article 14, margin number 21 (C.H. Beck 2020, 3rd Edition).
  7. This, in theory, should allow the data subjects to exercise a control over processing operations conducted not only by the secondary controller but also by the controller from which the data originated. See, WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 29 (available here).
  8. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 29 (available here).
  9. See Commentary on Article 25 GDPR.
  10. The specific regulations on electronic communication must be adhered to, which necessitate not only information but also the potential prior consent of the concerned individuals. Take, for instance, Article 13 e-Privacy Directive according to which automated calling and communication systems (e.g. automatic calling machines), fax machines, or electronic mail can only be used for direct marketing purposes if the subscribers or users have given prior consent.
  11. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 28 (available here).
  12. On the point, let's clarify that the WP29 seems to narrow the scope of exceptions to paragraphs 14(1), (2), and (4), excluding paragraph (3) regarding the timing of information. This hermeneutic choice is not entirely convincing. The wording of the provision states that "[p]aragraphs 1 to 4 shall not apply," including paragraph (3). Therefore, we can conclude that in the presence of an exclusion clause, even paragraph 4 would apply. See, WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 28 (available here).
  13. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 29 (available here).
  14. Recital 61 GDPR, last sentence.
  15. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 40 (available here).
  16. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 40 (available here).
  17. In fact, informing 50 people may be more effort than informing 1 million, per data subject.
  18. Dix, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 14 GDPR, margin number 23 (C.H. Beck 2019).
  19. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 28-31 (available here).
  20. Similar: Bäcker, in Kühling, Buchner, DS-GVO BDSG, Article 14 GDPR, margin number 60 (C.H. Beck 2020, 3rd Edition).
  21. Recital 41 of the GDPR states that a legal basis or legislative measure should be precise and clear, and its application should be foreseeable to individuals subject to it, in line with the case law of the Court of Justice of the EU and the European Court of Human Rights. This is the case if if a legal provision specifies at least the type of data collected, the requirements for data collection or disclosure and the purpose of processing in a sufficiently specific and clear manner. See, Bäcker, in Kühling, Buchner, DS-GVO BDSG, Article 13 GDPR, margin number 65 (C.H. Beck 2020, 3rd Edition).
  22. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 32 (available here).
  23. WP29, ‘Guidelines on Transparency under Regulation 2016/679’, 17/EN WP260 rev.01, 11 April 2018, p. 33 (available here).