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 provision - Article 14

The principles of fair and transparent processing require that the data subject be informed of the existence of the processing operation and its purposes. The controller should provide the data subject with any further information necessary to ensure fair and transparent processing taking into account the specific circumstances and context in which the personal data are processed. Furthermore, the data subject should be informed of the existence of profiling and the consequences of such profiling. Where the personal data are collected from the data subject, the data subject should also be informed whether he or she is obliged to provide the personal data and of the consequences, where he or she does not provide such data. That information may be provided in combination with standardised icons in order to give in an easily visible, intelligible and clearly legible manner, a meaningful overview of the intended processing. Where the icons are presented electronically, they should be machine-readable.

Recital 61: Time of the information provision - Article 14

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

Recital 62: Exceptions to the obligation to provide information - Article 14

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

(1) Information obligation where personal data have not been obtained from the data subject

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

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

(a) Identity and contact details of the controller

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

(b) Contact details of the data protection officer

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

(c) Purposes and legal basis

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

(d) Categories of personal data

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

(e) Recipients

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

(f) International transfers

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

(2) Obligation to provide additional information

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(a) Retention period

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

(b) Legitimate interests

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

(c) Information about data subject's rights

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

(d) Withdrawal of consent

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(e) 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, his or her place of work or of an alleged infringement of the GDPR.[7]

(f) Source

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(g) 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 about the significance and the envisaged consequences of such processing for the data subject.

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

(3) Time of the provision of information

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(4) Information on further processing

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(5) Exceptions to the obligation on the information provision

The controller does not have the obligation to inform, notably when such information is impossible to provide (i), involves a disproportionate effort in particular when processing for archiving purposes in the public interest, for scientific or historical research purpose or for statistical purposes (ii), or also if such information is likely to seriously impair or render the achievement of the research-related processing impossible (iii)[9].  In such cases, the controller shall take appropriate measures to protect the data subject’s rights and freedoms and legitimate interests (art. 14 par. 5 lit. b GDPR).

According to the Working Party 29 (now called European Data Protection Board), in the first hypothesis, the controller shall demonstrate that it cannot objectively inform the concerned individuals. There must be an objective ground that prevents to give information. The mere fact that a database has been compiled by a data controller using more than one source is not enough for raising an impossibility to inform[10].  For the second hypothesis, it requires to 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. The disproportionate effort must result from the fact that the personal data has been collected through an intermediary[11] . Furthermore, the controller must carry out a balancing test, which weighs the effort of the controller and the effects on the data subjects. This assessment must be documented and must result in the implementation of appropriate measures. One appropriate measure may be to render the information publicly available on the controller’s website or in a newspaper, and also other important measures could be the realization of a Data Protection Impact Assessment, the application of pseudonymization techniques, or the minimization of the collected personal data[12].  For instance, this scenario would be relevant in the case of data harvesting, because it is often performed on social media or on websites containing numerous information from a lot of people from all around the world, which renders the provision of information much more difficult and costly. Of course, it calls for a careful analysis and for a balance of interests as described above[13]. Thirdly, if the objectives of the processing are seriously impaired by the provision of information, the controller would not need to inform data subjects. To rely on this exception, the controller has to demonstrate that informing individuals would nullify the objectives of the processing. For instance, we could imagine a research project where the information of data subjects can create biases that nullify the scientific results.

Besides, the data subjects have maybe already received the information, but for data harvesting activities, and regarding the extent of information to be furnished, this exception could be difficult to put forward (art. 14 par. 5 lit. a GDPR).

Decisions

→ You can find all related decisions in Category:Article 14 GDPR

References

  1. Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, p. 7.
  2. Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, p. 35.
  3. Article 29 Working Party “Guidelines on consent under Regulation 2016/679”, WP259 rev.01, p. 22 and “Guidelines on transparency under Regulation 2016/679”, WP 260 rev.01, p. 8.
  4. Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, p. 37.
  5. Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, pp. 37-38.
  6. Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, p. 39.
  7. Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, p. 39.
  8. Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, p. 14.
  9. Article 29 Working Party, Guidelines on transparency under Regulation 2016/679, adopted on 29 November 2017, § 58
  10. Article 29 Working Party, Guidelines on transparency under Regulation 2016/679, adopted on 29 November 2017, § 60
  11. Article 29 Working Party, Guidelines on transparency under Regulation 2016/679, adopted on 29 November 2017, § 62
  12. Article 29 Working Party, Guidelines on transparency under Regulation 2016/679, adopted on 29 November 2017, § 64
  13. Valentin Conrad, Web data collection by Swiss actors in a data protection perspective, in: Jusletter IT 23 May 2019