GDPR Articles With Commentary & EU Case Laws by Adv. Prashant Mali (red seas under red skies txt) 📕

framework is also referred to as “profiling,” and is defined as the automated analysis or predicting of behavior, location, movements, reliability, interests, personal preferences, health, economic situation, performance, etc. It’s also important to note that Article 29 Working Party does provide other examples of monitoring including, but not limited to:

Online behavioral based advertising;

Travel data of individuals using a city’s public transport system (e.g. tracking via travel cards);

Profiling and scoring for purposes of risk assessment (e.g. for purposes of credit scoring, establishment of insurance premiums, fraud prevention, detection of money-laundering);

Location tracking, for example, by mobile apps; and

Monitoring of wellness, fitness and health data via wearable devices.

Article Working Party 29 suggests that organizations should consider all forms of behavior monitoring, including CCTV, smart cars, home automation, etc. With the wide scope of profiling behavior, organizations should evaluate their current online and offline operations to determine if they will be classified under the monitoring requirement. Organization should also consider “monitoring” in circumstances where they collect data on their employees inside and outside of the workplace, including BYODs, MDM solutions that track location and company owned vehicles with tracking devices. Clearly, given the wide net this regulation captures, information technology leaders and process owners of all organizations should prioritize assessing a formal conclusion on GDPR’s applicability, as the deadline is almost upon us. If you are unsure if your organization falls into scope of Article 3’s criteria, you should seek the advice from a privacy expert and your legal advisors.

 

Art. 4 GDPR Definitions

For the purposes of this Regulation:

‘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;

‘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;

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

‘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;

‘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;

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

‘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;

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

‘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;

‘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 authorized to process personal data;

‘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;

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

‘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;

‘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;

‘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;

‘main establishment’ means:

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;

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;

‘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;

‘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;

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

‘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;

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

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

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

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

a complaint has been lodged with that supervisory authority;

‘cross-border processing’ means either:

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

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.

‘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;

‘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;

‘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.

 

Suitable Recitals

(15) Technology neutrality; (24) Applicable to processors not established in the Union if data subjects within the Union are profiled; (26) Not applicable to anonymous data ;(28) Introduction of Pseudonymisation; (29) Pseudonymisation at the same controller; (30) Online identifiers for profiling and identification; (31) Not applicable to public authorities in connection with their official tasks; (34) Genetic data; (35) Health data; (36) Determination of the main establishment; (37) Enterprise group.

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CHAPTER 2: PRINCIPLES

Art. 5 GDPR Principles relating to processing of personal data

Personal data shall be:

processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’);

collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall, in accordance with Article 89(1), not be considered to be incompatible with the initial purposes (‘purpose limitation’);

adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’);

accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (‘accuracy’);

kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) subject to implementation of the appropriate technical and organisational measures required by this Regulation in order to safeguard the rights and freedoms of the data subject (‘storage limitation’);

processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’).

The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability’).

 

Suitable Recitals

(39) Principles of data processing.

 

COMMENTARY:

The principles are set in article 5 of the GDPR and enshrined thorough