Article 21 GDPR: Difference between revisions

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==Legal Text==
==Legal Text==
<br /><center>'''Article 21 - Right to object'''</center><br />
<br /><center>'''Article 21 - Right to object'''</center>


<span id="1">1.  The data subject shall have the right to object, on grounds relating to his or her particular situation, at any time to processing of personal data concerning him or her which is based on point (e) or (f) of Article 6(1), including profiling based on those provisions. The controller shall no longer process the personal data unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims.</span>
<span id="1">1.  The data subject shall have the right to object, on grounds relating to his or her particular situation, at any time to processing of personal data concerning him or her which is based on point (e) or (f) of Article 6(1), including profiling based on those provisions. The controller shall no longer process the personal data unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims.</span>
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==Relevant Recitals==
==Relevant Recitals==
{{Recital/69 GDPR}}{{Recital/70 GDPR}}


<span id="r69">
==Commentary==
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The GDPR does not grant data subjects a general right to object to the processing of their personal data. Rather, this right is limited to the circumstances outlined in Article 21(1) to (6) GDPR, as discussed further below.  
<div>'''Recital 69:''' Right to object </div>
<div class="mw-collapsible-content">
Where personal data might lawfully be processed because processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, or on grounds of the legitimate interests of a controller or a third party, a data subject should, nevertheless, be entitled to object to the processing of any personal data relating to his or her particular situation. It should be for the controller to demonstrate that its compelling legitimate interest overrides the interests or the fundamental rights and freedoms of the data subject.
</div></div>


<span id="r70">
===(1) Legitimate Interest or Task in the Public Interest===
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Article 21(1) GDPR grants data subjects the right to object, on grounds relating to their particular situation, to processing based on a legitimate interest ([[Article 6 GDPR|Article 6(1)(f) GDPR]]), or that is necessary for a task carried out in the public interest or in the exercise of official authority ([[Article 6 GDPR|Article 6(1)(e) GDPR]]). Controllers may refuse this objection where they demonstrate compelling legitimate grounds for the processing activity which overrides the data subject’s interests, rights, and freedoms, or for the establishment, exercise, or defence of claims.  
<div>'''Recital 70:''' Objection to direct marketing</div>
<div class="mw-collapsible-content">
Where personal data are processed for the purposes of direct marketing, the data subject should have the right to object to such processing, including profiling to the extent that it is related to such direct marketing, whether with regard to initial or further processing, at any time and free of charge. That right should be explicitly brought to the attention of the data subject and presented clearly and separately from any other information.
</div></div>


==Commentary on Article 21==
====Relating to His or Her Particular Situation====
Most commentators view this phrase as a clear threshold. Data subjects will not be able to exercise their right to object to processing under Article 21(1) GDPR, unless they assert specific reasons which pertain to their individual situation.<ref>See, e.g. ''Munz'', in Taeger, Gabel, DSGVO BDSG, Article 21 GDPR, margin number 13 (C.H. Beck 2019, 3rd Edition); ''Schulz'', in Gola, Datenschutz-Grundverordnung, Article 21 GDPR, margin number 8 (C.H. Beck 2018, 2nd Edition).</ref> These reasons can be of a legal, economic, ethical, social, societal, or family nature.<ref>''Munz'', in Taeger, Gabel, DSGVO BDSG, Article 21 GDPR, margin number 13 (C.H. Beck 2019, 3rd Edition).</ref> It is not clear exactly how a data subject’s reasons will be assessed. ''Herbst'' argues, in line with the Hamburg Regional Court,<ref>LG Hamburg, 23 July 2020, 334 O 161/19 (available [https://www.landesrecht-hamburg.de/bsha/document/JURE200015390 here]).</ref> that their objection must be justified by something “''atypical''”, which can be assumed to have previously been unknown to the controller, and which it could therefore not take into account in its overall assessment under [[Article 6 GDPR|Article 6(1)(f) GDPR]].


===(1) The right to object to processing, including profiling===
For example, it would not be sufficient for a data subject to merely indicate that they do not want the processing to occur.<ref>''Herbst'', in Kühling, Buchner, DS-GVO BDSG, Article 21 GDPR, margin number 15 (C.H. Beck 2020, 3rd Edition).</ref> Instead, they might have to assert a threat to their life, property, or the like.<ref>''Schulz'', in Gola, Datenschutz-Grundverordnung, Article 21 GDPR, margin number 9 (C.H. Beck 2018, 2nd Edition).</ref> In contrast, others argue that the threshold should not be interpreted too strictly.<ref>''Munz'', in Taeger, Gabel, DSGVO BDSG, Article 21 GDPR, margin number 15 (C.H. Beck 2019, 3rd Edition); ''Forgó'', in Wolff, Brink, BeckOK Datenschutzrecht, Article 21 GDPR, margin number 8 (C.H. Beck 2021, 39th Edition).</ref> This view might be supported by a judgement of the Frankfurt Regional Court, which deemed a plaintiff’s difficulties in looking for an apartment due to the disclosure of data about his debt to be sufficient.<ref>LG Frankfurt a. M., 20 December 2018, 2/5 O 151/18, (available [https://www.rv.hessenrecht.hessen.de/bshe/document/LARE190005832 here]).</ref>
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===(2) The right to object to direct marketing===
Another less common view is that rather than acting as a prerequisite for the exercise of the right to object, the phrase “''relating to his or her particular situation''” simply indicates that the data subject should have the right to affirm their specific interests in their personal data not being processed, which the controller may consider in its weighing of interests.<span lang="EN-GB">The GDPR does not grant data subjects a general
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right to object to the processing of their personal data. Rather, this right is
limited to the circumstances outlined in Article 21(1) to (6) GDPR, as
discussed further below. </span><ref>''Schrey'', in Rücker, Kugler, New European General Data Protection Regulation, A Practitioner's Guide: Ensuring Compliant Corporate Practice, p. 147 (C.H. Beck, Hart, Nomos 2018).</ref>


===(3) Stopping direct marketing processing===
====Compelling Legitimate Grounds====
When a data subject objects to the processing, all the processing for direct marketing purposes must stop.  
Under Directive 95/46/EC, data subjects were required to demonstrate "''compelling legitimate grounds''" in order to exercise their right to object to processing by a controller. The GDPR reverses this burden of proof in the data subject’s favour by requiring controllers to demonstrate "''compelling legitimate grounds''" for the relevant processing activity.<ref>''Schrey'', in Rücker, Kugler, New European General Data Protection Regulation, A Practitioner's Guide: Ensuring Compliant Corporate Practice, p. 147 (C.H. Beck, Hart, Nomos 2018).</ref> The right to object was therefore strengthened under the GDPR.<ref>''Zanfir-Fortuna,'' in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 21 GDPR, p. 516 (Oxford University Press 2020), citing ''Hustinx'', in Cremona, New Technologies and EU Law, p. 123 (Oxford University Press 2017).</ref> The GDPR does not elaborate on what constitutes a "''compelling''" legitimate ground. However, the WP29 suggested in its ‘Guidelines on Automated Individual Decision-Making’ that processing may be based on a compelling legitimate ground where, instead of merely furthering the controller’s business interests, it is “''beneficial for society at large (or the wider community)''” (e.g. “''profiling to predict the spread of a contagious disease)''”.<ref>WP29, ‘Guidelines on Automated Individual Decision-Making and Profiling for the Purposes of Regulation 2016/679’, 17/EN WP251 rev.01, 6 February 2018, p. 18 (available [https://ec.europa.eu/newsroom/article29/redirection/document/49826 here]).</ref> According to ''Zanfir-Fortuna'', "''compelling''" means that the legitimate interest must be “''overwhelming''” and override the data subject’s interests “''in a strong, significant way.''”<ref>''Zanfir-Fortuna,'' in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 21 GDPR, p. 517 (Oxford University Press 2020).</ref> Additionally, ''Herbst'' notes that there can be no alternative ways to satisfy the controller’s interest.<ref>''Herbst'', in Kühling, Buchner, DS-GVO BDSG, Article 21 GDPR, margin number 21 (C.H. Beck 2020, 3rd Edition).</ref> This interest will be considered compelling if it is recognised by EU law (whether expressly or tacitly)<ref>''Martini'', in Paul, Pauly, DS-GVO BDSG, Article 21 GPDR, margin number 36 (C.H. Beck 2021, 3rd Edition).</ref> or is within the remaining scope for regulation by national law. This includes the interests and purposes outlined in [[Article 23 GDPR|Article 23(1)(a) to (j) GDPR]] (e.g. national and public security) as well as Recital 73 GDPR (e.g. protection of human life). In any case, the threshold is certainly higher than the overriding legitimate interest that a controller must demonstrate under [[Article 6 GDPR|Article 6(1)(f) GDPR]], as any processing based on [[Article 6 GDPR|Article 6(1)(f) GDPR]] would otherwise be essentially immune to objection.<ref>''Zanfir-Fortuna,'' in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 21 GDPR, p. 517 (Oxford University Press 2020).</ref> For example, the District Court of Amsterdam held that when refusing a data subject’s right to object under Article 21(1) GDPR, it is insufficient for a bank to refer in general terms to its legal obligation to participate in a credit registration system.<ref>Rb. Amsterdam, 22 April 2021, C/13/693399 / HA RK 20-337 (available [https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBAMS:2021:3161 here]).</ref>


===(4) Information about the right to object===
====Pursuit of Legal Claims====
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A controller may also refuse a request to object where it is pursuing a legal claim. This likely covers both in and out of court proceedings,<ref>''Herbst'', in Kühling, Buchner, DS-GVO BDSG, Article 21 GDPR, margin number 23 (C.H. Beck 2020, 3rd Edition).</ref> and will apply where the exercise of the claim is either already taking place, or is imminent.<ref>''Kamann, Braun'' in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 21 GDPR, margin number 28 (C.H. Beck 2018, 2nd Edition).
</ref>


===(5) The right to object to processing by automated means===
====Including Profiling====
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Article 21(1) GDPR specifies that data subjects can object to processing based on [[Article 6 GDPR|Article 6(1)(e) and (f) GDPR]], “including profiling based on those provisions.” Profiling is defined in [[Article 4 GDPR|Article 4(4) GDPR]] as a form of automated processing consisting of the use of personal data to evaluate certain personal aspects relating to a natural person.


===(5) Processing for scientific or historical research purposes===
Because all types of processing based on [[Article 6 GDPR|Article 6(1)(e) or (f) GDPR]] are clearly covered by Article 21(1) GDPR, mentioning profiling specifically is somewhat legally redundant.<ref>''Herbst'', in Kühling, Buchner, DS-GVO BDSG, Article 21 GDPR, margin number 13 (Beck 2020, 3rd ed.) (accessed 6 August 2021).</ref> However, it can be seen to serve as more of a reminder, to the effect that the right of objection can apply especially with regard to profiling, which can be a problematic form of processing in the sense that sweeping and potentially incorrect conclusions are drawn about data subjects.<ref>''Herbst'', in Kühling, Buchner, DS-GVO BDSG, Article 21 GDPR, margin number 13 (Beck 2020, 3rd ed.) (accessed 6 August 2021).</ref>
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====Restriction of Processing and Right to Erasure====
Pursuant to [[Article 18 GDPR|Article 18(1)(d) GDPR]], once a data subject has objected to processing under Article 21(1) GDPR, the controller must restrict the relevant processing activity until it is certain that it is based on compelling legitimate grounds that override the data subject’s rights and freedoms. [[Article 18 GDPR|Article 18(2) GDPR]] states that during this time, the processing may only be: (i) based on the data subject’s consent; (ii) for the exercise or defence of legal claims; (iii) for the protection of the rights of another natural or legal person; or (iv) for reasons of important public interest in the EU or a member state.  Where a data subject’s right to object is valid, they may also request the controller to erase the relevant personal data under [[Article 17 GDPR|Article 17(1)(c) GDPR]] “''without undue delay''”.
===(2) Direct Marketing===
Article 21(2) GDPR gives data subjects the absolute right to object to the processing of their personal data for direct marketing purposes. Unlike under Article 21(1) GDPR, this processing can be based on any legal ground and there is no need for a balancing of interests by the controller, who cannot refuse the objection based on compelling legitimate grounds.
Whilst "''direct marketing''" is not defined in the GDPR, its meaning can be derived from other EU and national laws. It is characterised by the singling out of a specific data subject, whom the controller addresses directly (e.g. via telephone, fax, email, SMS, or post) with the aim of promoting the sale of goods or the provision of services.<ref>''Martini'', in Paul, Pauly, DS-GVO BDSG, Article 21 GPDR, margin number 48 (C.H. Beck 2021, 3rd Edition) citing Article 2(a) Directive 2006/114/EC and Article 13(1) Directive 2002/58/EC; ''Kamann, Braun'' in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 21 GDPR, margin numbers 45-46 (C.H. Beck 2018, 2nd Edition).</ref> Communications for non-commercial purposes will be covered.
The extent to which online targeted advertising may be classified as "''direct marketing''" is not entirely clear. Some commentators argue it would likely qualify as such.<span lang="EN-GB">The GDPR does not grant data subjects a general
right to object to the processing of their personal data. Rather, this right is
limited to the circumstances outlined in Article 21(1) to (6) GDPR, as
discussed further below. </span><ref>''Martini'', in Paul, Pauly, DS-GVO BDSG, Article 21 GPDR, margin number 48b (C.H. Beck 2021, 3rd Edition).</ref>  However, sophisticated online targeted advertising techniques do single-out and specifically target individual users across the internet to promote goods or services, and in this way appear to satisfy direct marketing’s key characteristics.
===(3) Stopping Direct Marketing Processing===
Where a data subject objects to processing under Article 21(2) GDPR, all processing of their data for direct marketing purposes must stop. Processing of the personal data for other lawful purposes remains unaffected.<ref>''Schrey'', in Rücker, Kugler, New European General Data Protection Regulation, A Practitioner's Guide: Ensuring Compliant Corporate Practice, p. 147 (C.H. Beck, Hart, Nomos 2018).</ref> That said, the relationship between Article 21(3) GDPR and [[Article 17 GDPR]] on the right to erasure must be considered. Although controllers can in principle continue to process the relevant personal data for purposes other than direct marketing, in practice they may also be required to delete the data under [[Article 17 GDPR|Article 17(1)(b) GDPR]], making any further processing impossible. ''Zanfir-Fortuna'' highlights that a controller could conceivably argue that personal data only needs to be erased from a specific database kept for direct marketing purposes, and that it can continue to process it for other purposes elsewhere.<ref>''Zanfir-Fortuna,'' in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 21 GDPR, p. 518 (Oxford University Press 2020).</ref> Some DPAs also recommend keeping certain personal data on the individual who has objected to processing, so that the controller can make sure that it definitely does not market to them again.<ref>''Zanfir-Fortuna,'' in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 21 GDPR, p. 518 (Oxford University Press 2020).</ref> 
===(4) Information on the Right to Object===
The obligation to inform data subjects of their right to object to processing stems from [[Article 13 GDPR|Articles 13(2)(b)]] and [[Article 14 GDPR|14(2)(c) GDPR]]. However, Article 21(4) GDPR specifies that the right to object under Article 21(1) and 21(2) GDPR (i.e. the right to object against processing based on a legitimate interest, necessary for a task in the public interest, and for public marketing, respectively) must be communicated to the data subject explicitly, clearly, separately from other information, and at the latest at the time of the first communication. For example, the French DPA has stated that information on the right to object should be provided in a distinct paragraph or pictogram.<ref>CNIL, 17 October 2018, Dispositifs de mesure d’audience et de frequentation dans ses espaces accessibles au public: la CNIL rappelled les regles (available [https://www.cnil.fr/fr/dispositifs-de-mesure-daudience-et-de-frequentation-dans-des-espaces-accessibles-au-public-la-cnil here]).</ref> Any indirect or implied reference to the right of objection will not satisfy Article 21(4) GDPR.<ref>''Kamann, Braun'' in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 21 GDPR, margin number 56 (C.H. Beck 2018, 2nd Edition).</ref> The notification under Article 21(4) GDPR must be made at the time of the first marketing communication, and not necessarily at the time that the data is first processed. However, if data is collected directly from the data subject, [[Article 13 GDPR|Article 13(2)(b) GDPR]] requires that the data subject will be informed of their right to object at the point that the data is collected from them.<ref>''Kamann, Braun'' in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 21 GDPR, margin number 58 (C.H. Beck 2018, 2nd Edition).</ref>
===(5) Modalities to Exercise the Right to Object===
Notwithstanding Directive 2002/58/EC, when using information society services (‘ISS’) data subjects may exercise their right to object under Article 21 GDPR by automated means using technical specifications.
[[Article 4 GDPR|Article 4(25) GDPR]] refers to the definition of information ISS provided in Article 1(1)(b) of Directive 2015/1535, which states that ISS are: “''services normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services''.” The same article clarifies that "''at a distance''" means the service is provided without the parties being simultaneously present, "''by electronic means''" means the service is initially sent and received at its destination by means of electronic equipment for the processing and storage of data, and "''at the individual request of a recipient of services''" means that the service is provided through the transmission of data on individual request. Article 21 GDPR therefore always applies to services offered in an online environment.
Organisations can satisfy Article 21(5) GDPR by, inter alia, enabling a do-not-track function of the data subject’s browser,<ref>''Schrey'', in Rücker, Kugler, New European General Data Protection Regulation, A Practitioner's Guide: Ensuring Compliant Corporate Practice, p. 148 (C.H. Beck, Hart, Nomos 2018).</ref> including an "''opt-out''" link in a direct marketing email, or by providing a Wi-Fi network that could detect a do-not-track signal from mobile phone users in a monitored area.<ref>''Zanfir-Fortuna,'' in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 21 GDPR, p. 519 (Oxford University Press 2020).</ref>
===(6) Processing for Scientific or Historical Research Purposes===
Lastly, Article 21(6) GDPR gives users the right to object to processing for scientific or historical research purposes, or statistical purposes, on grounds relating to their particular situation, unless the processing is necessary for the performance of a task carried out in the public interest. Controllers are therefore exempt from such an objection where processing is based on the first sentence of [[Article 6 GDPR|Article 6(1)(e) GDPR]], but not the second sentence (i.e. where processing is necessary for the performance of a task in the exercise of official authority vested in the controller).
In contrast to the right to object under Article 21(1) GDPR, where controllers process data necessary for the performance of a task carried out in the public interests, they do not need to demonstrate "''compelling legitimate grounds''" in order to refuse an objection to processing. As such, the threshold for refusing an objection is lower.
The extent to which a controller would still need to carry out a balancing exercise of the importance of their task in the public interest and the objection in the interests of the data subject is not clear. Unlike Article 21(1) GDPR, Article 21(6) GDPR does not explicitly provide for this (note the lack of the word "''override''"). However, ''Munz'' argue that the need for a balancing of interests naturally stems from the principle of proportionality in Article 52(2) of the Charter of Fundamental Rights of the EU, and that Article 21(6) GDPR should be interpreted in light of this.<ref>''Munz'', in Taeger, Gabel, DSGVO BDSG, Article 21 GDPR, margin number 62 (C.H. Beck 2019, 3rd Edition).</ref> According to ''Martini'', the word "''unless''" in Article 21(6) GDPR implies that the burden of proof for rejecting an objection lies with the controller, meaning that the data subject’s interest should take precedence in case of doubt.<ref>''Martini'', in Paul, Pauly, DS-GVO BDSG, Article 21 GPDR, margin number 60 (C.H. Beck 2021, 3rd Edition).</ref>
Notably, unlike with Article 21(1) and (2) GDPR, the right to object under Article 21(6) GDPR does not need to explicitly be brought to the attention of the data subject under Article 21(4) GDPR. This may be attributable to the fact that data from a large number of data subjects are often processed during processing for research and statistical purposes, with the effect that satisfying Article 21(4) GDPR would likely be impractical or involve a "''disproportionate effort''” per [[Article 14 GDPR|Article 14(5) GDPR]]. Controllers are nonetheless still obligated to notify data subjects of their right to object under [[Article 12 GDPR|Article 12(2)(b) GDPR]].
==Decisions==
==Decisions==
→ You can find all related decisions in [[:Category:Article 21 GDPR]]
→ You can find all related decisions in [[:Category:Article 21 GDPR]]

Revision as of 14:44, 25 April 2022

Article 21 - Right to object
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Chapter 10: Delegated and implementing acts

Legal Text


Article 21 - Right to object

1. The data subject shall have the right to object, on grounds relating to his or her particular situation, at any time to processing of personal data concerning him or her which is based on point (e) or (f) of Article 6(1), including profiling based on those provisions. The controller shall no longer process the personal data unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims.

2. Where personal data are processed for direct marketing purposes, the data subject shall have the right to object at any time to processing of personal data concerning him or her for such marketing, which includes profiling to the extent that it is related to such direct marketing.

3. Where the data subject objects to processing for direct marketing purposes, the personal data shall no longer be processed for such purposes.

4. At the latest at the time of the first communication with the data subject, the right referred to in paragraphs 1 and 2 shall be explicitly brought to the attention of the data subject and shall be presented clearly and separately from any other information.

5. In the context of the use of information society services, and notwithstanding Directive 2002/58/EC, the data subject may exercise his or her right to object by automated means using technical specifications.

6. Where personal data are processed for scientific or historical research purposes or statistical purposes pursuant to Article 89(1), the data subject, on grounds relating to his or her particular situation, shall have the right to object to processing of personal data concerning him or her, unless the processing is necessary for the performance of a task carried out for reasons of public interest.

Relevant Recitals

Recital 69: Right to Object
Where personal data might lawfully be processed because processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, or on grounds of the legitimate interests of a controller or a third party, a data subject should, nevertheless, be entitled to object to the processing of any personal data relating to his or her particular situation. It should be for the controller to demonstrate that its compelling legitimate interest overrides the interests or the fundamental rights and freedoms of the data subject.

Recital 70: Right to Object to Direct Marketing
Where personal data are processed for the purposes of direct marketing, the data subject should have the right to object to such processing, including profiling to the extent that it is related to such direct marketing, whether with regard to initial or further processing, at any time and free of charge. That right should be explicitly brought to the attention of the data subject and presented clearly and separately from any other information.

Commentary

The GDPR does not grant data subjects a general right to object to the processing of their personal data. Rather, this right is limited to the circumstances outlined in Article 21(1) to (6) GDPR, as discussed further below.

(1) Legitimate Interest or Task in the Public Interest

Article 21(1) GDPR grants data subjects the right to object, on grounds relating to their particular situation, to processing based on a legitimate interest (Article 6(1)(f) GDPR), or that is necessary for a task carried out in the public interest or in the exercise of official authority (Article 6(1)(e) GDPR). Controllers may refuse this objection where they demonstrate compelling legitimate grounds for the processing activity which overrides the data subject’s interests, rights, and freedoms, or for the establishment, exercise, or defence of claims.

Relating to His or Her Particular Situation

Most commentators view this phrase as a clear threshold. Data subjects will not be able to exercise their right to object to processing under Article 21(1) GDPR, unless they assert specific reasons which pertain to their individual situation.[1] These reasons can be of a legal, economic, ethical, social, societal, or family nature.[2] It is not clear exactly how a data subject’s reasons will be assessed. Herbst argues, in line with the Hamburg Regional Court,[3] that their objection must be justified by something “atypical”, which can be assumed to have previously been unknown to the controller, and which it could therefore not take into account in its overall assessment under Article 6(1)(f) GDPR.

For example, it would not be sufficient for a data subject to merely indicate that they do not want the processing to occur.[4] Instead, they might have to assert a threat to their life, property, or the like.[5] In contrast, others argue that the threshold should not be interpreted too strictly.[6] This view might be supported by a judgement of the Frankfurt Regional Court, which deemed a plaintiff’s difficulties in looking for an apartment due to the disclosure of data about his debt to be sufficient.[7]

Another less common view is that rather than acting as a prerequisite for the exercise of the right to object, the phrase “relating to his or her particular situation” simply indicates that the data subject should have the right to affirm their specific interests in their personal data not being processed, which the controller may consider in its weighing of interests.The GDPR does not grant data subjects a general right to object to the processing of their personal data. Rather, this right is limited to the circumstances outlined in Article 21(1) to (6) GDPR, as discussed further below. [8]

Compelling Legitimate Grounds

Under Directive 95/46/EC, data subjects were required to demonstrate "compelling legitimate grounds" in order to exercise their right to object to processing by a controller. The GDPR reverses this burden of proof in the data subject’s favour by requiring controllers to demonstrate "compelling legitimate grounds" for the relevant processing activity.[9] The right to object was therefore strengthened under the GDPR.[10] The GDPR does not elaborate on what constitutes a "compelling" legitimate ground. However, the WP29 suggested in its ‘Guidelines on Automated Individual Decision-Making’ that processing may be based on a compelling legitimate ground where, instead of merely furthering the controller’s business interests, it is “beneficial for society at large (or the wider community)” (e.g. “profiling to predict the spread of a contagious disease)”.[11] According to Zanfir-Fortuna, "compelling" means that the legitimate interest must be “overwhelming” and override the data subject’s interests “in a strong, significant way.[12] Additionally, Herbst notes that there can be no alternative ways to satisfy the controller’s interest.[13] This interest will be considered compelling if it is recognised by EU law (whether expressly or tacitly)[14] or is within the remaining scope for regulation by national law. This includes the interests and purposes outlined in Article 23(1)(a) to (j) GDPR (e.g. national and public security) as well as Recital 73 GDPR (e.g. protection of human life). In any case, the threshold is certainly higher than the overriding legitimate interest that a controller must demonstrate under Article 6(1)(f) GDPR, as any processing based on Article 6(1)(f) GDPR would otherwise be essentially immune to objection.[15] For example, the District Court of Amsterdam held that when refusing a data subject’s right to object under Article 21(1) GDPR, it is insufficient for a bank to refer in general terms to its legal obligation to participate in a credit registration system.[16]

Pursuit of Legal Claims

A controller may also refuse a request to object where it is pursuing a legal claim. This likely covers both in and out of court proceedings,[17] and will apply where the exercise of the claim is either already taking place, or is imminent.[18]

Including Profiling

Article 21(1) GDPR specifies that data subjects can object to processing based on Article 6(1)(e) and (f) GDPR, “including profiling based on those provisions.” Profiling is defined in Article 4(4) GDPR as a form of automated processing consisting of the use of personal data to evaluate certain personal aspects relating to a natural person.

Because all types of processing based on Article 6(1)(e) or (f) GDPR are clearly covered by Article 21(1) GDPR, mentioning profiling specifically is somewhat legally redundant.[19] However, it can be seen to serve as more of a reminder, to the effect that the right of objection can apply especially with regard to profiling, which can be a problematic form of processing in the sense that sweeping and potentially incorrect conclusions are drawn about data subjects.[20]

Restriction of Processing and Right to Erasure

Pursuant to Article 18(1)(d) GDPR, once a data subject has objected to processing under Article 21(1) GDPR, the controller must restrict the relevant processing activity until it is certain that it is based on compelling legitimate grounds that override the data subject’s rights and freedoms. Article 18(2) GDPR states that during this time, the processing may only be: (i) based on the data subject’s consent; (ii) for the exercise or defence of legal claims; (iii) for the protection of the rights of another natural or legal person; or (iv) for reasons of important public interest in the EU or a member state.  Where a data subject’s right to object is valid, they may also request the controller to erase the relevant personal data under Article 17(1)(c) GDPRwithout undue delay”.

(2) Direct Marketing

Article 21(2) GDPR gives data subjects the absolute right to object to the processing of their personal data for direct marketing purposes. Unlike under Article 21(1) GDPR, this processing can be based on any legal ground and there is no need for a balancing of interests by the controller, who cannot refuse the objection based on compelling legitimate grounds.

Whilst "direct marketing" is not defined in the GDPR, its meaning can be derived from other EU and national laws. It is characterised by the singling out of a specific data subject, whom the controller addresses directly (e.g. via telephone, fax, email, SMS, or post) with the aim of promoting the sale of goods or the provision of services.[21] Communications for non-commercial purposes will be covered.

The extent to which online targeted advertising may be classified as "direct marketing" is not entirely clear. Some commentators argue it would likely qualify as such.The GDPR does not grant data subjects a general right to object to the processing of their personal data. Rather, this right is limited to the circumstances outlined in Article 21(1) to (6) GDPR, as discussed further below. [22]  However, sophisticated online targeted advertising techniques do single-out and specifically target individual users across the internet to promote goods or services, and in this way appear to satisfy direct marketing’s key characteristics.

(3) Stopping Direct Marketing Processing

Where a data subject objects to processing under Article 21(2) GDPR, all processing of their data for direct marketing purposes must stop. Processing of the personal data for other lawful purposes remains unaffected.[23] That said, the relationship between Article 21(3) GDPR and Article 17 GDPR on the right to erasure must be considered. Although controllers can in principle continue to process the relevant personal data for purposes other than direct marketing, in practice they may also be required to delete the data under Article 17(1)(b) GDPR, making any further processing impossible. Zanfir-Fortuna highlights that a controller could conceivably argue that personal data only needs to be erased from a specific database kept for direct marketing purposes, and that it can continue to process it for other purposes elsewhere.[24] Some DPAs also recommend keeping certain personal data on the individual who has objected to processing, so that the controller can make sure that it definitely does not market to them again.[25]

(4) Information on the Right to Object

The obligation to inform data subjects of their right to object to processing stems from Articles 13(2)(b) and 14(2)(c) GDPR. However, Article 21(4) GDPR specifies that the right to object under Article 21(1) and 21(2) GDPR (i.e. the right to object against processing based on a legitimate interest, necessary for a task in the public interest, and for public marketing, respectively) must be communicated to the data subject explicitly, clearly, separately from other information, and at the latest at the time of the first communication. For example, the French DPA has stated that information on the right to object should be provided in a distinct paragraph or pictogram.[26] Any indirect or implied reference to the right of objection will not satisfy Article 21(4) GDPR.[27] The notification under Article 21(4) GDPR must be made at the time of the first marketing communication, and not necessarily at the time that the data is first processed. However, if data is collected directly from the data subject, Article 13(2)(b) GDPR requires that the data subject will be informed of their right to object at the point that the data is collected from them.[28]

(5) Modalities to Exercise the Right to Object

Notwithstanding Directive 2002/58/EC, when using information society services (‘ISS’) data subjects may exercise their right to object under Article 21 GDPR by automated means using technical specifications.

Article 4(25) GDPR refers to the definition of information ISS provided in Article 1(1)(b) of Directive 2015/1535, which states that ISS are: “services normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.” The same article clarifies that "at a distance" means the service is provided without the parties being simultaneously present, "by electronic means" means the service is initially sent and received at its destination by means of electronic equipment for the processing and storage of data, and "at the individual request of a recipient of services" means that the service is provided through the transmission of data on individual request. Article 21 GDPR therefore always applies to services offered in an online environment.

Organisations can satisfy Article 21(5) GDPR by, inter alia, enabling a do-not-track function of the data subject’s browser,[29] including an "opt-out" link in a direct marketing email, or by providing a Wi-Fi network that could detect a do-not-track signal from mobile phone users in a monitored area.[30]

(6) Processing for Scientific or Historical Research Purposes

Lastly, Article 21(6) GDPR gives users the right to object to processing for scientific or historical research purposes, or statistical purposes, on grounds relating to their particular situation, unless the processing is necessary for the performance of a task carried out in the public interest. Controllers are therefore exempt from such an objection where processing is based on the first sentence of Article 6(1)(e) GDPR, but not the second sentence (i.e. where processing is necessary for the performance of a task in the exercise of official authority vested in the controller).

In contrast to the right to object under Article 21(1) GDPR, where controllers process data necessary for the performance of a task carried out in the public interests, they do not need to demonstrate "compelling legitimate grounds" in order to refuse an objection to processing. As such, the threshold for refusing an objection is lower.

The extent to which a controller would still need to carry out a balancing exercise of the importance of their task in the public interest and the objection in the interests of the data subject is not clear. Unlike Article 21(1) GDPR, Article 21(6) GDPR does not explicitly provide for this (note the lack of the word "override"). However, Munz argue that the need for a balancing of interests naturally stems from the principle of proportionality in Article 52(2) of the Charter of Fundamental Rights of the EU, and that Article 21(6) GDPR should be interpreted in light of this.[31] According to Martini, the word "unless" in Article 21(6) GDPR implies that the burden of proof for rejecting an objection lies with the controller, meaning that the data subject’s interest should take precedence in case of doubt.[32]

Notably, unlike with Article 21(1) and (2) GDPR, the right to object under Article 21(6) GDPR does not need to explicitly be brought to the attention of the data subject under Article 21(4) GDPR. This may be attributable to the fact that data from a large number of data subjects are often processed during processing for research and statistical purposes, with the effect that satisfying Article 21(4) GDPR would likely be impractical or involve a "disproportionate effort” per Article 14(5) GDPR. Controllers are nonetheless still obligated to notify data subjects of their right to object under Article 12(2)(b) GDPR.

Decisions

→ You can find all related decisions in Category:Article 21 GDPR

References

  1. See, e.g. Munz, in Taeger, Gabel, DSGVO BDSG, Article 21 GDPR, margin number 13 (C.H. Beck 2019, 3rd Edition); Schulz, in Gola, Datenschutz-Grundverordnung, Article 21 GDPR, margin number 8 (C.H. Beck 2018, 2nd Edition).
  2. Munz, in Taeger, Gabel, DSGVO BDSG, Article 21 GDPR, margin number 13 (C.H. Beck 2019, 3rd Edition).
  3. LG Hamburg, 23 July 2020, 334 O 161/19 (available here).
  4. Herbst, in Kühling, Buchner, DS-GVO BDSG, Article 21 GDPR, margin number 15 (C.H. Beck 2020, 3rd Edition).
  5. Schulz, in Gola, Datenschutz-Grundverordnung, Article 21 GDPR, margin number 9 (C.H. Beck 2018, 2nd Edition).
  6. Munz, in Taeger, Gabel, DSGVO BDSG, Article 21 GDPR, margin number 15 (C.H. Beck 2019, 3rd Edition); Forgó, in Wolff, Brink, BeckOK Datenschutzrecht, Article 21 GDPR, margin number 8 (C.H. Beck 2021, 39th Edition).
  7. LG Frankfurt a. M., 20 December 2018, 2/5 O 151/18, (available here).
  8. Schrey, in Rücker, Kugler, New European General Data Protection Regulation, A Practitioner's Guide: Ensuring Compliant Corporate Practice, p. 147 (C.H. Beck, Hart, Nomos 2018).
  9. Schrey, in Rücker, Kugler, New European General Data Protection Regulation, A Practitioner's Guide: Ensuring Compliant Corporate Practice, p. 147 (C.H. Beck, Hart, Nomos 2018).
  10. Zanfir-Fortuna, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 21 GDPR, p. 516 (Oxford University Press 2020), citing Hustinx, in Cremona, New Technologies and EU Law, p. 123 (Oxford University Press 2017).
  11. WP29, ‘Guidelines on Automated Individual Decision-Making and Profiling for the Purposes of Regulation 2016/679’, 17/EN WP251 rev.01, 6 February 2018, p. 18 (available here).
  12. Zanfir-Fortuna, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 21 GDPR, p. 517 (Oxford University Press 2020).
  13. Herbst, in Kühling, Buchner, DS-GVO BDSG, Article 21 GDPR, margin number 21 (C.H. Beck 2020, 3rd Edition).
  14. Martini, in Paul, Pauly, DS-GVO BDSG, Article 21 GPDR, margin number 36 (C.H. Beck 2021, 3rd Edition).
  15. Zanfir-Fortuna, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 21 GDPR, p. 517 (Oxford University Press 2020).
  16. Rb. Amsterdam, 22 April 2021, C/13/693399 / HA RK 20-337 (available here).
  17. Herbst, in Kühling, Buchner, DS-GVO BDSG, Article 21 GDPR, margin number 23 (C.H. Beck 2020, 3rd Edition).
  18. Kamann, Braun in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 21 GDPR, margin number 28 (C.H. Beck 2018, 2nd Edition).
  19. Herbst, in Kühling, Buchner, DS-GVO BDSG, Article 21 GDPR, margin number 13 (Beck 2020, 3rd ed.) (accessed 6 August 2021).
  20. Herbst, in Kühling, Buchner, DS-GVO BDSG, Article 21 GDPR, margin number 13 (Beck 2020, 3rd ed.) (accessed 6 August 2021).
  21. Martini, in Paul, Pauly, DS-GVO BDSG, Article 21 GPDR, margin number 48 (C.H. Beck 2021, 3rd Edition) citing Article 2(a) Directive 2006/114/EC and Article 13(1) Directive 2002/58/EC; Kamann, Braun in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 21 GDPR, margin numbers 45-46 (C.H. Beck 2018, 2nd Edition).
  22. Martini, in Paul, Pauly, DS-GVO BDSG, Article 21 GPDR, margin number 48b (C.H. Beck 2021, 3rd Edition).
  23. Schrey, in Rücker, Kugler, New European General Data Protection Regulation, A Practitioner's Guide: Ensuring Compliant Corporate Practice, p. 147 (C.H. Beck, Hart, Nomos 2018).
  24. Zanfir-Fortuna, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 21 GDPR, p. 518 (Oxford University Press 2020).
  25. Zanfir-Fortuna, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 21 GDPR, p. 518 (Oxford University Press 2020).
  26. CNIL, 17 October 2018, Dispositifs de mesure d’audience et de frequentation dans ses espaces accessibles au public: la CNIL rappelled les regles (available here).
  27. Kamann, Braun in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 21 GDPR, margin number 56 (C.H. Beck 2018, 2nd Edition).
  28. Kamann, Braun in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 21 GDPR, margin number 58 (C.H. Beck 2018, 2nd Edition).
  29. Schrey, in Rücker, Kugler, New European General Data Protection Regulation, A Practitioner's Guide: Ensuring Compliant Corporate Practice, p. 148 (C.H. Beck, Hart, Nomos 2018).
  30. Zanfir-Fortuna, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 21 GDPR, p. 519 (Oxford University Press 2020).
  31. Munz, in Taeger, Gabel, DSGVO BDSG, Article 21 GDPR, margin number 62 (C.H. Beck 2019, 3rd Edition).
  32. Martini, in Paul, Pauly, DS-GVO BDSG, Article 21 GPDR, margin number 60 (C.H. Beck 2021, 3rd Edition).