Article 19 GDPR

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Article 19 - Notification obligation regarding rectification or erasure of personal data or restriction of processing
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Chapter 10: Delegated and implementing acts

Legal Text


Article 19 - Notification obligation regarding rectification or erasure of personal data or restriction of processing

The controller shall communicate any rectification or erasure of personal data or restriction of processing carried out in accordance with Article 16, Article 17(1) and Article 18 to each recipient to whom the personal data have been disclosed, unless this proves impossible or involves disproportionate effort. The controller shall inform the data subject about those recipients if the data subject requests it.

Relevant Recitals

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

The controller who first collected and processed the personal data is responsible for the correction, deletion and restriction of processing. However, the usefulness of these rights is limited if the personal data has already been transferred to third parties. Article 19 GDPR therefore requires controllers, subject to certain exceptions, to communicate their exercise to recipients under Article 4(9) GDPR.[1]

Shall communicate

The first sentence of Article 19 requires the controller to communicate the outcome of the request for rectification, erasure or restriction of processing to all recipients personal data have been disclosed to per Article 4(9) GDPR.[2] Article 19 does not establish any specific time requirement for notification. However, since the purpose of Article 19 is to enable the data subject to effectively enforce their rights under Articles 16, 17(1), and 18 vis-à-vis other recipients of the data, the notification should be done immediately.[3] Recipients shall be notified either “in writing, or by other means, including, where appropriate, by electronic means” (Article 12(1) GDPR).

Example: XXX

The controller only has to "communicate" any request but is not obliged to confirm the correction, deletion or restriction of the processing of the data in question by the recipients. Indeed, under Article 5(1)(d) and 17(1) GDPR, each recipient is individually responsible for correcting, deleting or restricting the data processing. In particular, if the recipient may process the data relying on another legal basis under Article 6 GDPR, or can use either of the exceptions under Article 17(3) GDPR, the processing can carry on.[4]

The controller is exempted from the notification obligation if the communication proves "impossible" or "involves disproportionate effort". Exceptions to the notification requirement shall be interpreted narrowly.[5] Thus, they only apply to communication to recipients, but not to any preparatory measures needed to reach out to them such as compiling a list of all recipients of the data subject's data. The controller bears the burden of proof to show exceptions apply.

Unless this proves impossible

A communication is only impossible if it is factually impossible to determine the recipients, such as when a recipient is not reachable or no longer exists and has no legal successor. Thus, the use of a data protection management system is recommended insofar as it keeps track of each recipient and enables the rapid implementation of the notification obligation after each correction, deletion and restriction of processing.[6] Financial or other practical difficulties are irrelevant, and may only be considered when evaluating disproportionate effort.[7]

Or involves disproportionate effort

The assessment of "disproportionate effort" must be carried out on a case by case basis. The financial and time interests of the controller and the recipients will need to be weighed against the interests of the data subject. To evaluate the interests of the data subject, consideration should be given to the impact of the processing on their rights and freedoms, the likelihood that the recipients will still be processing the data contrary to the exercise of the data subject's rights, and whether the communication is actually in the interest of the data subject.[8]

Information Obligation Towards the Data Subject

The second sentence of Article 19 GDPR stipulates that the controller must, if requested by the data subject, inform him or her about “those recipients”.

It has been debated whether “those recipients” refers to all recipients to whom the personal data have been disclosed, "or only those who are actually notified (excluding, therefore, those for which notification proved impossible, or involved a disproportionate effort)". In line with the objectives of the GDPR, the latter reading "should in principle be excluded, as the data subject has a special interest in knowing precisely which recipients might hold the data but have not been notified, in order to reach out to them by other means, if appropriate".[9] This understanding is supported by the purpose of Article 19 GDPR, which is to support the exercise of the rights to rectification, erasure, and restriction.[10] Indeed, the data subject can only enforce these if they know the actual recipients of their personal data.[11] Moreover, the EDPB seems to support this interpretation in their recent Guidelines on the Right of Access.[12] The information given to the data subject should comply with the general requirements set forth in Article 12 GDPR.

Lastly, we observe that, with specific reference to this information obligation, the second sentence of Article 19 does not provide for the two safeguard clauses provided for in the notification obligation of paragraph 1, namely impossibility or disproportionate effort. It must therefore be concluded that the controller has an absolute obligation to record the recipients of personal data, in view of potential requests by the data subject. There are no excuses in this regard, except for obvious cases of force majeure (such as a fire destroying the list of recipients) or excusable fault (such as the list being destroyed by an unforeseeable hacker attack) as provided for by the legal systems of the Member States.

Member State Restrictions

→ See Article 23 GDPR.

Decisions

→ You can find all related decisions in Category:Article 19 GDPR.

References

  1. The obligation to notify under Article 19 should not be confused with that under Article 17(2) regarding the "right to be forgotten," for two reasons. Firstly, Article 17(2) applies when the number of recipients is indeterminate, whereas in the case of Article 19, the number is determinate. Secondly, Article 17(2) only applies to cases of requests for erasure, while Article 19 includes cases of rectification and restriction of processing, as provided for in Articles 16 and 18 of the GDPR, respectively.
  2. "Disclosure" can be "by transmission, dissemination or otherwise making available" (see also the definition for "processing" in Article 4(2) GDPR). If data is been made public, the applicable provision is Article 17(2) GDPR, provided that all requirements set therein are met.
  3. Herbst, in Kühling, Buchner, DS-GVO BDSG, Article 19 GDPR, margin number 12 (C.H. Beck 2020).
  4. Dix, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 19 GDPR, margin number 8 (C.H. Beck 2019).
  5. Kamann, Braun in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 18 GDPR, margin number 13 (C.H. Beck 2018, 2nd edition).
  6. Dix, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 19 GDPR, margin number 7 (C.H. Beck 2019).
  7. Kamann, Braun, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 19 GDPR, margin number 14 (C.H. Beck 2018, 2nd Edition).
  8. Kamann, Braun, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 19 GDPR, margin number 15 (C.H. Beck 2018, 2nd Edition).
  9. Gonzáles Fuster, in Kuner, Bygrave and Docksey, The EU General Data Protection Regulation (GDPR): A commentary, Article 19 GDPR, p. 496 (Oxford University Press, 2020).
  10. Peuker, in Sydow, Europäische Datenschutzgrundverordnung, Article 19 GDPR, margin number 13 (C.H. Beck, 2nd Edition 2018).
  11. This also explains why the information obligation under Article 19 GDPR is stricter than the similar provision of Article 15(1)(c) GDPR, which permits in certain cases that the information provided is limited to "categories of recipient[s]": Article 15 GDPR is a prerequisite for the exercise of all of the data subject's rights; in contrast, Article 19 GDPR permits the data subject to verify that already exercised rights have been complied with.
  12. EDPB, ‘Guidelines 01/2022 on data subject rights - Right of access’, 28 March 2023 (Version 2.0), p. 49 (available, 18 January 2022 (Version 1.0), p. 39 (available here), in which the Board states that they recall that “storing information relating to the actual recipients is necessary inter alia to be able to comply with the controller’s obligations under Art. 5(2) and 19 GDPR”.