Article 4 GDPR: Difference between revisions

Revision as of 08:57, 8 September 2021

← Article 4: Definitions →

Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 4 - Definitions

For the purposes of this Regulation:

1. ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

2. ‘processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;

3. ‘restriction of processing’ means the marking of stored personal data with the aim of limiting their processing in the future;

4. ‘profiling’ means any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person's performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements;

5. ‘pseudonymisation’ means the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person;

6. ‘filing system’ means any structured set of personal data which are accessible according to specific criteria, whether centralised, decentralised or dispersed on a functional or geographical basis;

7. ‘controller’ means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law;

8. ‘processor’ means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller;

9. ‘recipient’ means a natural or legal person, public authority, agency or another body, to which the personal data are disclosed, whether a third party or not. However, public authorities which may receive personal data in the framework of a particular inquiry in accordance with Union or Member State law shall not be regarded as recipients; the processing of those data by those public authorities shall be in compliance with the applicable data protection rules according to the purposes of the processing;

10. ‘third party’ means a natural or legal person, public authority, agency or body other than the data subject, controller, processor and persons who, under the direct authority of the controller or processor, are authorised to process personal data;

11. ‘consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her;

12. ‘personal data breach’ means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed;

13. ‘genetic data’ means personal data relating to the inherited or acquired genetic characteristics of a natural person which give unique information about the physiology or the health of that natural person and which result, in particular, from an analysis of a biological sample from the natural person in question;

14. ‘biometric data’ means personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data;

15. ‘data concerning health’ means personal data related to the physical or mental health of a natural person, including the provision of health care services, which reveal information about his or her health status;

16. ‘main establishment’ means:

(a) as regards a controller with establishments in more than one Member State, the place of its central administration in the Union, unless the decisions on the purposes and means of the processing of personal data are taken in another establishment of the controller in the Union and the latter establishment has the power to have such decisions implemented, in which case the establishment having taken such decisions is to be considered to be the main establishment;

(b) as regards a processor with establishments in more than one Member State, the place of its central administration in the Union, or, if the processor has no central administration in the Union, the establishment of the processor in the Union where the main processing activities in the context of the activities of an establishment of the processor take place to the extent that the processor is subject to specific obligations under this Regulation;

17. ‘representative’ means a natural or legal person established in the Union who, designated by the controller or processor in writing pursuant to Article 27, represents the controller or processor with regard to their respective obligations under this Regulation;

18. ‘enterprise’ means a natural or legal person engaged in an economic activity, irrespective of its legal form, including partnerships or associations regularly engaged in an economic activity;

19. ‘group of undertakings’ means a controlling undertaking and its controlled undertakings;

20. ‘binding corporate rules’ means personal data protection policies which are adhered to by a controller or processor established on the territory of a Member State for transfers or a set of transfers of personal data to a controller or processor in one or more third countries within a group of undertakings, or group of enterprises engaged in a joint economic activity;

21. ‘supervisory authority’ means an independent public authority which is established by a Member State pursuant to Article 51;

22. ‘supervisory authority concerned’ means a supervisory authority which is concerned by the processing of personal data because:

(a) the controller or processor is established on the territory of the Member State of that supervisory authority;

(b) data subjects residing in the Member State of that supervisory authority are substantially affected or likely to be substantially affected by the processing; or

(c) a complaint has been lodged with that supervisory authority;

23. ‘cross-border processing’ means either:

(a) processing of personal data which takes place in the context of the activities of establishments in more than one Member State of a controller or processor in the Union where the controller or processor is established in more than one Member State; or

(b) processing of personal data which takes place in the context of the activities of a single establishment of a controller or processor in the Union but which substantially affects or is likely to substantially affect data subjects in more than one Member State.

24. ‘relevant and reasoned objection’ means an objection to a draft decision as to whether there is an infringement of this Regulation, or whether envisaged action in relation to the controller or processor complies with this Regulation, which clearly demonstrates the significance of the risks posed by the draft decision as regards the fundamental rights and freedoms of data subjects and, where applicable, the free flow of personal data within the Union;

25. ‘information society service’ means a service as defined in point (b) of Article 1(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council;

26. ‘international organisation’ means an organisation and its subordinate bodies governed by public international law, or any other body which is set up by, or on the basis of, an agreement between two or more countries.

Relevant Recitals

Personal Data

Recital 14: Not Applicable to Legal Persons

The protection afforded by this Regulation should apply to natural persons, whatever their nationality or place of residence, in relation to the processing of their personal data. This Regulation does not cover the processing of personal data which concerns legal persons and in particular undertakings established as legal persons, including the name and the form of the legal person and the contact details of the legal person.

Recital 15: Technologically Neutral Protection

In order to prevent creating a serious risk of circumvention, the protection of natural persons should be technologically neutral and should not depend on the techniques used. The protection of natural persons should apply to the processing of personal data by automated means, as well as to manual processing, if the personal data are contained or are intended to be contained in a filing system. Files or sets of files, as well as their cover pages, which are not structured according to specific criteria should not fall within the scope of this Regulation.

Recital 26: Applicable to Pseudonymous Data, Not Applicable to Anonymous Data

The principles of data protection should apply to any information concerning an identified or identifiable natural person. Personal data which have undergone pseudonymisation, which could be attributed to a natural person by the use of additional information should be considered to be information on an identifiable natural person. To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. The principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable. This Regulation does not therefore concern the processing of such anonymous information, including for statistical or research purposes.

Recital 27: Not Applicable to Deceased Persons

This Regulation does not apply to the personal data of deceased persons. Member States may provide for rules regarding the processing of personal data of deceased persons.

Recital 29: Conditions for Pseudonymisation

In order to create incentives to apply pseudonymisation when processing personal data, measures of pseudonymisation should, whilst allowing general analysis, be possible within the same controller when that controller has taken technical and organisational measures necessary to ensure, for the processing concerned, that this Regulation is implemented, and that additional information for attributing the personal data to a specific data subject is kept separately. The controller processing the personal data should indicate the authorised persons within the same controller.

Recital 30: Online Identifiers

Natural persons may be associated with online identifiers provided by their devices, applications, tools and protocols, such as internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags. This may leave traces which, in particular when combined with unique identifiers and other information received by the servers, may be used to create profiles of the natural persons and identify them.

Commentary

Article 4 GDPR provides a list of definitions used to further specify relevant notions used throughout the GDPR.

In the case of new definitions, on the other hand, there is scope for new interpretations.

Some definitions are taken from the preceding Directive 95/46/EC, allowing an understanding to build on the already existing terms. Others definitions, however, are newly introduced, modified or complemented with additional elements and therefore require a new interpretation.

In order to avoid linguistic inconsistencies leading to an inconsistent application of the law, it should be noted that the Regulation is legally binding in all official languages of the EU. Therefore, whenever in doubt of the interpretation, other language versions may be consulted to identify and resolve discrepancies.

(1) Personal Data

The principal concept of the GDPR is that of ‘personal data’.^[1]

Its definition is an extension of the previously existing definition under Article 2 (a) Directive 95/46/EC.^[2] The Directive itself derives the definition from Article 2 (a) Convention 108^[3], according to which “personal data” means any information relating to an identified or identifiable individual (“data subject”).^[4]

The definition can be divided into the four requirements of (1) ‘any information’ (2) ‘relating to’ (3) ‘an identified or identifiable’ (4) 'individual' requiring their cumulative fulfilment in order to satisfy the notion of personal data.

Any Information

With the expression of ‘any information’, the legislator underlines the willingness to keep the term ‘personal data’ as broad as possible.

Like the German Constitutional Court stated in 1983:

Under the conditions of automatic data processing, there is no longer meaningless data.^[5]

Accordingly, personal data can relate directly to the data subject or any of their interaction with the environment. The term includes information touching the individual’s private and family life sensu stricto, but also information regarding whatever types of activity undertaken by the individual, like that concerning working relations, economic or social behaviour of the individual. It includes information regardless of the position or capacity of the individual (as consumer, patient, employee or customer, etc).^[6] The European Court of Human Rights made clear that:

[The] term “private life” must not be interpreted restrictively. In particular, respect for private life comprises the right to establish and develop relationships with other human beings; furthermore, there is no reason of principle to justify excluding activities of a professional or business nature from the notion of “private life” (see the Niemietz v. Germany judgment^[7] [...], and the Halford judgment^[8] [...]). That broad interpretation corresponds with that of the Council of Europe’s Convention [108].^[9]

Information can be ‘objective’ such as a blood characteristic of a data subject, as well as ‘subjective’ in the form of opinions or assessments. The latter type of information constitutes a significant part of the processing of personal data in sectors such as banking, for the assessment of the reliability of borrowers (‘An individual is a reliable borrower’), insurance (‘An individual should not die in the near future’) or employment (‘An individual is a good worker and deserves promotion’).^[10]

It is not necessary for the information to be true, proven or complete. In fact, the GDPR provides for the possibility that the information is incorrect and gives the data subject the right to access this information (Article 15 GDPR) and to rectify it (Article 16 GDPR).^[11]

With regard to the format or medium of the information, the term ‘personal data’ includes data in alphabetical, numerical, graphic, photographic, acoustic or any other form of Information. This includes information on paper as well as information stored on a computer in binary form or on tape.

Examples are:

Videosurveillance:^[12]

Images of individuals captured by a video surveillance system can be personal data to the extent that the individuals are recognizable.

Telephone Banking:^[13]

In telephone banking, where the customer's voice giving instructions to the bank are recorded on tape, those recorded instructions should be considered as personal data.

Professional habits:^[14]

Drug prescription information (e.g. drug identification number, drug name, drug strength, manufacturer, selling price, new or refill, reasons for use, reasons for no substitution order, prescriber's first and last name, phone number, etc.), whether in the form of an individual prescription or in the form of patterns discerned from a number of prescriptions, can be considered as personal data about the physician who prescribes this drug, even if the patient is anonymous.

Child's drawings:^[15]

As a result of a neuro-psychiatric test conducted on a girl in the context of a court proceeding about her custody, a drawing made by her representing her family is submitted. The drawing provides information about the girl's mood and what she feels about different members of her family. The drawing will indeed reveal information relating to the child (her state of health from a psychiatric point of view) and also about e.g. her father's or mother’s behaviour. These Drawings could be considered as “personal data”.

Relating to

Identified or Identifiable

Natural Person

Examples

name, date of birth, nationality, gender, ethnicity, religion and language^[16]
place of birth, nationality, marital status, sex, record of entries into and exits from a a country, residence status, particulars of passports issued, previous statements as to domicile, reference numbers issued by an authority, reference numbers used by authorities^[17]
municipality of residence, information concerning the earned and unearned income and assets of that person^[18]

data, which relate both to the monies paid by certain bodies and the recipients^[19]

name of a person in conjunction with his telephone coordinates or information about his working conditions or hobbies^[20]

the times when working hours begin and end, as well as the corresponding breaks and intervals^[21]

dynamic IP address^[22]
written exams^[23]
fingerprints^[24]