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 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.

One of the rationale behind that obligation 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. In some instances, multiples controllers and processors may indeed share personal data among themselves, thereby creating a chain of transmission which may sometimes become daunting to the data subjects. Pursuant to Article(2)(f) GDPR however, because each of these subsequent controllers must 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 contest the entire chain of processing, where applicable.

(g) Automated Decision-Making

See Commentary on Article 13.[3]

(3) How Information on Processing Should be Provided

As mentioned above, the main difference between Article

(4) Information on the Further Processing of Personal Data

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(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.[4]  In such cases, the controller shall take appropriate measures to protect the data subject’s rights and freedoms and legitimate interests (Article 14(5)(b) GDPR).

The three exceptions are to be explained as follows.

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.[5]

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.[6] 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 pseudonymisation techniques, or the minimization of the personal data collected.[7]  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.[8]

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.

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. 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. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 14.
  4. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 28-29.
  5. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 29-30.
  6. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 30.
  7. WP29, Guidelines on Transparency under Regulation 2016/679, 11 April 2018, p. 31.
  8. Valentin Conrad, 23 May 2019, Web data collection by Swiss actors in a data protection perspective, Jusletter IT.