Article 14 GDPR: Difference between revisions

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==Relevant Recitals==
==Relevant Recitals==
<span id="r60">
{{Recital/60 GDPR}}{{Recital/61 GDPR}}{{Recital/62 GDPR}}
<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;"><div>'''Recital 60:''' Information provision</div>
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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.
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<span id="r61">
==Commentary on Article 14==
<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;"><div>'''Recital 61:''' Time of the information provision</div>
 
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===(1) Information the Controller Shall Provide When Personal Data Has Not Been Obtained From the Data Subject===
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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.
As previously mentioned, Articles 13 and 14 GDPR both give expression to the principle of transparency enshrined in [[Article 5 GDPR|Article 5(1)(a) GDPR]], by obliging the controllers to provide specific pieces of information to the data subjects either before or shortly after obtaining the data.<ref>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</ref>
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While [[Article 13 GDPR]] applies in situations where personal data are collected ''directly'' from the data subjects (i.e. direct collection), 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).
 
Since Article 13 GDPR and Article 14 GDPR are almost identical in content, the below Commentary will mostly refer to the corresponding sections of the Commentary on [[Article 13 GDPR]]. One substantial difference between those two Articles however is the existence of an additional obligation for controllers when Article 14 GDPR applies : the obligation to reveal ''"from which source the personal data originates and, if applicable, whether it came from a publicly accessible source"'' (Article 14(2)(f) GDPR). Another difference in case of indirect collection lies in the modalities for communicating the information to the data subjects, and in particular the timing for providing such information. More specifically, while, in case of ''direct'' collection, controllers must inform data subjects at the latest at the moment the data are obtained, in case of ''indirect'' collection, controllers can provide the information later (see below, section 3, "How Information on Processing Should Be Provided").
====(a) Identity and Contact Details of the Controller====
 
See Commentary on Article 13.
 
====(b) Contact Details of the Data Protection Officer====


<span id="r62">
See Commentary on Article 13.
<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;"><div>'''Recital 62:''' Exceptions to the obligation to provide information</div>
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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.
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==Commentary on Article 14==
====(c) Purposes and Legal Basis====
 
See Commentary on Article 13.
 
====(d) Categories of Personal Data====
 
The controller must provide the data subjects with information on the categories of personal data that have been indirectly 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.
 
The term 'category' is not defined in the GDPR, or perhaps only indirectly through 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). On this basis, one may consider each special category of personal data as an example of a 'category of personal data' in the sense of Article 14(2)(d) GDPR. Yet, in some instances, simply referring to 'health data' as a category may be too ambiguous, given that it may cover one simple information, such as the weight of the data subject, or on the contrary "''a myriad of information''", such as the weight, height, heat rate, blood pressure, etc.<ref name=":0">Zanfir-Fortuna G., Article 14 in ''The General Data Protection Regulation, A Commentary'', eds. Kuner, Bygrave and Docksey, Oxford University Press, 2020, p. 444.</ref>
 
Keeping both elements in mind, the level of details that a controller must provide when describing the categories of personal data is often not straightforward.  As a general rule, however, the controller should be specific enough to meet the reasonable expectations of the data subjects, in accordance with the principle of fairness and transparency, while presenting such information in a concise and intelligible form.
 
For example, when a data subject orders a good online with controller A, it may be sufficient for controller B to indicate that it has obtained the 'contact details' of the data subject from controller A for the purpose of delivery. Such contact details should however normally be limited to personal data that are indeed necessary for the delivery, i.e. the name and postal address of the data subject. If controller B also obtained the email address and phone number of the data subject from controller A, simply indicating 'contact details' may be insufficient. Rather, controller B should clearly indicate that it also collected the email address and phone number of the data subject, and also specify the purpose of such processing, in accordance with Article 14(1)(c) GDPR (e.g. being able to contact the data subject in advance to determine  a specific time for the delivery).
 
====(e) Recipients====


===(1) Information the controller shall provide when personal data has not been obtained from the data subject===
See Commentary on Article 13.


Processing of personal data should be lawful, fair, and transparent. The GDPR enshrines these principles in [[Article 5 GDPR#1|Article 5(1)(a)]] and the recitals. In particular, [[Article 14 GDPR#r60|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”''.<ref name=":0">Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, p. 7.</ref>
====(f) International Transfers====


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.
See Commentary on Article 13.


===Identity and contact details of the controller===
===(2) Obligation to Provide Further Information at the Time When Personal Data are Obtained===
====(a) Retention Period====


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.)”.''<ref name=":1">Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, p. 35.</ref> Looked at in light of the GDPR’s fairness principle enshrined in [[Article 5 GDPR#1a|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.
See Commentary on Article 13.


===Contact details of the data protection officer===
====(b) Legitimate Interests====


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.
See Commentary on Article 13.


===Purposes and legal basis===
====(c) Information About Data Subject's Rights====


Controllers should provide the purposes for which personal data are processed, as well as the relevant legal basis under [[Article 6 GDPR|Article 6]] and, where special categories of data are processed, an additional legal basis under [[Article 9 GDPR|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 GDPR#1|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.<ref name=":2">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.</ref>
See Commentary on Article 13.


===Categories of personal data===
==== (d) Information About the Right to Withdraw Consent ====
See Commentary on Article 13.


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) The Right to Lodge a Complaint====
See Commentary on Article 13.


===Recipients===
==== (f) Source of Personal Data ====
In case of indirect collection of personal data, Article 14(2)(f) GDPR provides that the controller must inform the data subjects about the ''source'' of such data. In particular, if the data have been obtained from a publicly accessible source, the controller must indicate it. In most cases however, controllers may obtain personal data from third parties, for example from data brokers, affiliates, business partners or other controllers.


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.<ref name=":3">Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, p. 37.</ref>
One of the rationale behind the obligation to disclose the source of the data is to allow the data subjects to object to the processing conducted not only by the secondary controller but also by the controller from which the data originated.<ref name=":0" /> In some instances indeed, a myriad of controllers and processors may share personal data among themselves, thereby creating a chain of transmission which may become daunting to the data subjects. Pursuant to Article(2)(f) GDPR however, because each of these controllers are under the obligation to disclose where the data came from, the data subjects should always be able to trace back the original source of the personal data, and possibly challenge the entire chain of processing, where applicable.


===International transfers===
Recital 61 GDPR provides for an exemption to the obligation to inform the data subject about the source of the data. More specifically, it states that “''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''”. This exemption thus only applies where it is not possible for the controller to name a source because various pieces of information relating to the same individual have been collected from a multitude of sources and can therefore not be attributed to a single source.<ref name=":1">WP29,  Guidelines on Transparency under Regulation 2016/679, 11 April 2018, pt. 60.</ref> 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.<ref>See Commentary on [https://gdprhub.eu/Article%2025%20GDPR Article 25 GDPR].</ref> For  example, the WP29 considers that "''the  mere  fact  that  a  database  comprising  the  personal  data  of  multiple  data  subjects  has been  compiled  by  a  data  controller  using  more  than  one  source  is  not  enough  to  lift  this requirement if it is possible (although time consuming or burdensome) to identify the source from which the personal data of individual data subjects derived.''"<ref name=":1" /> In any case, if  the  specific  source  cannot be named, then the controller should at least provide general information regarding the source(s),<ref>Recital 61 GDPR, last sentence.</ref> such as their nature (i.e. public or private) or the types of organization, industry or sector concerned (e.g. national register of companies).<ref name=":1" />
====(g) Automated Decision-Making====


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 GDPR|Article 45]], standard contractual clauses, derogations, etc.), and provide for the means to access or obtain the relevant documents.<ref name=":4">Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, pp. 37-38.</ref>
See Commentary on Article 13.<ref name=":7">WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, [https://ec.europa.eu/newsroom/article29/items/622227/en p. 14].</ref>
===(3) When Information on Processing Should be Provided ===
As mentioned above, 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 envisaged, each having their own time limit. While the first case scenario should be considered as establishing a general time limit of one-month, the two other scenarios may lead to a shortening of this one-month time limit.


===(2) Obligation to provide further information at the time when personal data are obtained===
==== (a) Personal Data Collected with no Intention to Contact the Data Subject or Disclose the Data to a Third Party ====
===Retention period===
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.


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 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.
Two other case-scenario may however shorten that time-limit, as further explained below (point (b) and (c)).


===Legitimate interests===
==== (b) Personal Data Collected with the Intention to Contact the Data Subjects ====
Article 14(3)(b) GDPR states that if the 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''." 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).


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.
For example, if 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 should imperatively join a privacy notice containing all information listed in Article 14(2) and (3) in the first email or message sent to these data subjects. In accordance with the general rule established under Article 14(3)(a), however, if the recruitment agency delays this first communication, the information must in any case be provided within the general applicable one-month time limit.


===Information about data subject's rights===
==== (b) Personal Data Collected with the Intention to Disclose Them to a Third Party ====
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).


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''”.<ref name=":5">Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, p. 39.</ref>
===(4) Information on the Further Processing of Personal Data===
===The right to lodge a complaint===
See Commentary on Article 13.
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.<ref name=":6">Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, p. 39.</ref>
===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.
=== (5) Exemptions ===
The controller is exempted from its obligation to inform the data subjects under Article 14 GDPR when (i) the information is impossible to provide, when (ii) providing such information involves a disproportionate effort, or when (iii) providing such information is likely to render impossible or seriously impair the achievement of the objectives of the processing.<ref name=":2">WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, [https://ec.europa.eu/newsroom/article29/items/622227/en p. 28-29]. </ref>  In such cases, the controller must take appropriate measures to protect the data subject’s rights and freedoms and legitimate interests (Article 14(5)(b) GDPR).  


All of the information elements are generally of equal importance and must be provided to the data subject.<ref name=":7">Article 29 Working Party “Guidelines on transparency under Regulation 2016/679”, WP260 rev.01, p. 14.</ref>
Controllers may not abusively rely on these exemptions. As a matter of general principle, all exceptions to the right to information must be interpreted restrictively and applied narrowly.<ref name=":2" /> In particular: 
===(5) Exceptions to the obligation on the information provision===


The controller does not have an obligation to inform when information (i) is impossible to provide, (ii) involves a disproportionate effort, in particular when processing for archiving purposes in the public interest, (iii) is for scientific or historical research purpose or for statistical purposes, or also if such information is likely to seriously impair the achievement of the research-related processing<ref>Article 29 Working Party, Guidelines on transparency under Regulation 2016/679, adopted on 29 November 2017, § 58</ref>.  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]]).  
* as far as the first exemption is concerned, the controller must demonstrate that it cannot objectively inform the concerned individuals. There must be an objective ground that prevents the controller from giving information. The mere fact that a database has been compiled by a data controller using more than one source is not enough to exempt the controller from its information obligation.<ref>WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, [https://ec.europa.eu/newsroom/article29/items/622227/en p. 29-30].</ref>


According to the Working Party 29 (now called European Data Protection Board), there are three exceptions for providing information. In the first, the controller must demonstrate that it cannot objectively inform the concerned individuals. There must be an objective ground that prevents them from giving information. The mere fact that a database has been compiled by a data controller using more than one source is not enough to raise an impossibility to inform<ref>Article 29 Working Party, Guidelines on transparency under Regulation 2016/679, adopted on 29 November 2017, § 60</ref>
* as far as the second exemption is concerned, 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. The disproportionate effort must result from the fact that the personal data has been collected through an intermediary.<ref>WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, [https://ec.europa.eu/newsroom/article29/items/622227/en p. 30].</ref> Furthermore, the controller must 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. 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; other effective measures could be the realization of a Data Protection Impact Assessment, the application of pseudonymisation techniques, or the minimization of the personal data collected.<ref>WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, [https://ec.europa.eu/newsroom/article29/items/622227/en p. 31].</ref>  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 information from a lot of people from all around the world, which renders the provision of information costly and more difficult. Of course, it calls for a careful analysis and for a balance of interests as described above.<ref>''Valentin Conrad'', 23 May 2019, Web data collection by Swiss actors in a data protection perspective, Jusletter IT.</ref>


In the second, 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. The disproportionate effort must result from the fact that the personal data has been collected through an intermediary<ref>Article 29 Working Party, Guidelines on transparency under Regulation 2016/679, adopted on 29 November 2017, § 62</ref> . 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; other effective measures could be the realization of a Data Protection Impact Assessment, the application of pseudonymization techniques, or the minimization of the personal data collected<ref>Article 29 Working Party, Guidelines on transparency under Regulation 2016/679, adopted on 29 November 2017, § 64</ref>.  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 information from a lot of people from all around the world, which renders the provision of information costly and more difficult. Of course, it calls for a careful analysis and for a balance of interests as described above<ref>Valentin Conrad, Web data collection by Swiss actors in a data protection perspective, in: Jusletter IT 23 May 2019</ref>.
* as far as the third exemption is concerned, the controller has to demonstrate that informing individuals would seriously impair or nullify the objectives of the processing. For instance, a research project where the information of data subjects can create biases that nullify the scientific results.


In the third, if the objectives of the processing are seriously impaired by the provision of information, the controller does 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, a research project where the information of data subjects can create biases that nullify the scientific results.  
Whether a controller can legitimately rely on one of the three above-mentioned exemptions must be appreciated on a case-by-case basis, taking into account all relevant circumstances. Some processing purposes may, because of their nature, offer better ground for justification when invoking an exemption. As a way of illustration, Article 14(5) GDPR specifically refers to (i) processing for archiving purposes in the public interest, (ii) processing for scientific or historical research purposes or (iii) processing statistical purposes. Such processing indeed may involve the collection of large quantities of data from various sources, with no possibility to reach out to all data subjects. The controller will however usually be in a position to implement technical and operational measures to better guarantee the respect of the right to privacy and data protection of data subjects, for example by pseudonymising the personal data, restricting access to it to a small group of researchers/statisticians, and only disclosing anonymized results.


==Decisions==
==Decisions==

Revision as of 14:59, 1 October 2021

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 on Article 14

(1) Information the Controller Shall Provide When Personal Data Has Not Been Obtained From the Data Subject

As previously mentioned, Articles 13 and 14 GDPR both give expression to the principle of transparency enshrined in Article 5(1)(a) GDPR, by obliging the controllers to provide specific pieces of information to the data subjects either before or shortly after obtaining the data.[1]

While Article 13 GDPR applies in situations where personal data are collected directly from the data subjects (i.e. direct collection), 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).

Since Article 13 GDPR and Article 14 GDPR are almost identical in content, the below Commentary will mostly refer to the corresponding sections of the Commentary on Article 13 GDPR. One substantial difference between those two Articles however is the existence of an additional obligation for controllers when Article 14 GDPR applies : the obligation to reveal "from which source the personal data originates and, if applicable, whether it came from a publicly accessible source" (Article 14(2)(f) GDPR). Another difference in case of indirect collection lies in the modalities for communicating the information to the data subjects, and in particular the timing for providing such information. More specifically, while, in case of direct collection, controllers must inform data subjects at the latest at the moment the data are obtained, in case of indirect collection, controllers can provide the information later (see below, section 3, "How Information on Processing Should Be Provided").

(a) Identity and Contact Details of the Controller

See Commentary on Article 13.

(b) Contact Details of the Data Protection Officer

See Commentary on Article 13.

(c) Purposes and Legal Basis

See Commentary on Article 13.

(d) Categories of Personal Data

The controller must provide the data subjects with information on the categories of personal data that have been indirectly 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.

The term 'category' is not defined in the GDPR, or perhaps only indirectly through 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). On this basis, one may consider each special category of personal data as an example of a 'category of personal data' in the sense of Article 14(2)(d) GDPR. Yet, in some instances, simply referring to 'health data' as a category may be too ambiguous, given that it may cover one simple information, such as the weight of the data subject, or on the contrary "a myriad of information", such as the weight, height, heat rate, blood pressure, etc.[2]

Keeping both elements in mind, the level of details that a controller must provide when describing the categories of personal data is often not straightforward. As a general rule, however, the controller should be specific enough to meet the reasonable expectations of the data subjects, in accordance with the principle of fairness and transparency, while presenting such information in a concise and intelligible form.

For example, when a data subject orders a good online with controller A, it may be sufficient for controller B to indicate that it has obtained the 'contact details' of the data subject from controller A for the purpose of delivery. Such contact details should however normally be limited to personal data that are indeed necessary for the delivery, i.e. the name and postal address of the data subject. If controller B also obtained the email address and phone number of the data subject from controller A, simply indicating 'contact details' may be insufficient. Rather, controller B should clearly indicate that it also collected the email address and phone number of the data subject, and also specify the purpose of such processing, in accordance with Article 14(1)(c) GDPR (e.g. being able to contact the data subject in advance to determine a specific time for the delivery).

(e) Recipients

See Commentary on Article 13.

(f) International Transfers

See Commentary on Article 13.

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

(a) Retention Period

See Commentary on Article 13.

(b) Legitimate Interests

See Commentary on Article 13.

(c) Information About Data Subject's Rights

See Commentary on Article 13.

(d) Information About the Right to Withdraw Consent

See Commentary on Article 13.

(e) The Right to Lodge a Complaint

See Commentary on Article 13.

(f) Source of Personal Data

In case of indirect collection of personal data, Article 14(2)(f) GDPR provides that the controller must inform the data subjects about the source of such data. In particular, if the data have been obtained from a publicly accessible source, the controller must indicate it. In most cases however, controllers may obtain personal data from third parties, for example from data brokers, affiliates, business partners or other controllers.

One of the rationale behind the obligation to disclose the source of the data is to allow the data subjects to object to the processing conducted not only by the secondary controller but also by the controller from which the data originated.[2] In some instances indeed, a myriad of controllers and processors may share personal data among themselves, thereby creating a chain of transmission which may become daunting to the data subjects. Pursuant to Article(2)(f) GDPR however, because each of these controllers are under the obligation to disclose where the data came from, the data subjects should always be able to trace back the original source of the personal data, and possibly challenge the entire chain of processing, where applicable.

Recital 61 GDPR provides for an exemption to the obligation to inform the data subject about the source of the data. More specifically, it states that “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”. This exemption thus only applies where it is not possible for the controller to name a source because various pieces of information relating to the same individual have been collected from a multitude of sources and can therefore not be attributed to a single source.[3] 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.[4] For example, the WP29 considers that "the mere fact that a database comprising the personal data of multiple data subjects has been compiled by a data controller using more than one source is not enough to lift this requirement if it is possible (although time consuming or burdensome) to identify the source from which the personal data of individual data subjects derived."[3] In any case, if the specific source cannot be named, then the controller should at least provide general information regarding the source(s),[5] such as their nature (i.e. public or private) or the types of organization, industry or sector concerned (e.g. national register of companies).[3]

(g) Automated Decision-Making

See Commentary on Article 13.[6]

(3) When Information on Processing Should be Provided

As mentioned above, 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 envisaged, each having their own time limit. While the first case scenario should be considered as establishing a general time limit of one-month, the two other scenarios may lead to a shortening of this one-month time limit.

(a) Personal Data Collected with no Intention to Contact the Data Subject or Disclose the Data to a Third Party

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.

Two other case-scenario may however shorten that time-limit, as further explained below (point (b) and (c)).

(b) Personal Data Collected with the Intention to Contact the Data Subjects

Article 14(3)(b) GDPR states that if the 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." 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).

For example, if 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 should imperatively join a privacy notice containing all information listed in Article 14(2) and (3) in the first email or message sent to these data subjects. In accordance with the general rule established under Article 14(3)(a), however, if the recruitment agency delays this first communication, the information must in any case be provided within the general applicable one-month time limit.

(b) Personal Data Collected with the Intention to Disclose Them to a Third Party

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).

(4) Information on the Further Processing of Personal Data

See Commentary on Article 13.

(5) Exemptions

The controller is exempted from its obligation to inform the data subjects under Article 14 GDPR when (i) the information is impossible to provide, when (ii) providing such information involves a disproportionate effort, or when (iii) providing such information is likely to render impossible or seriously impair the achievement of the objectives of the processing.[7]  In such cases, the controller must take appropriate measures to protect the data subject’s rights and freedoms and legitimate interests (Article 14(5)(b) GDPR).

Controllers may not abusively rely on these exemptions. As a matter of general principle, all exceptions to the right to information must be interpreted restrictively and applied narrowly.[7] In particular:

  • as far as the first exemption is concerned, the controller must demonstrate that it cannot objectively inform the concerned individuals. There must be an objective ground that prevents the controller from giving information. The mere fact that a database has been compiled by a data controller using more than one source is not enough to exempt the controller from its information obligation.[8]
  • as far as the second exemption is concerned, 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. The disproportionate effort must result from the fact that the personal data has been collected through an intermediary.[9] Furthermore, the controller must 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. 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; other effective measures could be the realization of a Data Protection Impact Assessment, the application of pseudonymisation techniques, or the minimization of the personal data collected.[10]  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 information from a lot of people from all around the world, which renders the provision of information costly and more difficult. Of course, it calls for a careful analysis and for a balance of interests as described above.[11]
  • as far as the third exemption is concerned, the controller has to demonstrate that informing individuals would seriously impair or nullify the objectives of the processing. For instance, a research project where the information of data subjects can create biases that nullify the scientific results.

Whether a controller can legitimately rely on one of the three above-mentioned exemptions must be appreciated on a case-by-case basis, taking into account all relevant circumstances. Some processing purposes may, because of their nature, offer better ground for justification when invoking an exemption. As a way of illustration, Article 14(5) GDPR specifically refers to (i) processing for archiving purposes in the public interest, (ii) processing for scientific or historical research purposes or (iii) processing statistical purposes. Such processing indeed may involve the collection of large quantities of data from various sources, with no possibility to reach out to all data subjects. The controller will however usually be in a position to implement technical and operational measures to better guarantee the respect of the right to privacy and data protection of data subjects, for example by pseudonymising the personal data, restricting access to it to a small group of researchers/statisticians, and only disclosing anonymized results.

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, adopted on 28 July 2021, pt. 190
  2. 2.0 2.1 Zanfir-Fortuna G., Article 14 in The General Data Protection Regulation, A Commentary, eds. Kuner, Bygrave and Docksey, Oxford University Press, 2020, p. 444.
  3. 3.0 3.1 3.2 WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, pt. 60.
  4. See Commentary on Article 25 GDPR.
  5. Recital 61 GDPR, last sentence.
  6. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 14.
  7. 7.0 7.1 WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 28-29.
  8. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 29-30.
  9. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 30.
  10. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 31.
  11. Valentin Conrad, 23 May 2019, Web data collection by Swiss actors in a data protection perspective, Jusletter IT.