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

Where, in cases referred to in paragraph 1 of this Article, the controller is able to demonstrate that it is not in a position to identify the data subject, the controller shall inform the data subject accordingly, if possible. In such cases, Articles 15 to 20 shall not apply except where the data subject, for the purpose of exercising his or her rights under those articles, provides additional information enabling his or her identification.

Suitable Recitals

Additional data for identification purposes.

COMMENTARY:

If the personal data processed by a controller do not permit the controller to identify a natural person, the data controller should not be obliged to acquire additional information in order to identify the data subject for the sole purpose of complying with any provision of this Regulation. However, the controller should not refuse to take additional information provided by the data subject in order to support the exercise of his or her rights. Identification should include the digital identification of a data subject, for example through authentication mechanism such as the same credentials, used by the data subject to log-in to the on-line service offered by the data controller.

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Section 1: Transparency and modalities

Art. 12 GDPR Transparent information, communication and modalities for the exercise of the rights of the data subject

The controller shall take appropriate measures to provide any information referred to in Articles 13 and 14 and any communication under Articles 15 to 22 and 34 relating to processing to the data subject in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child. The information shall be provided in writing, or by other means, including, where appropriate, by electronic means. When requested by the data subject, the information may be provided orally, provided that the identity of the data subject is proven by other means.

The controller shall facilitate the exercise of data subject rights under Articles 15 to 22. In the cases referred to in Article 11(2), the controller shall not refuse to act on the request of the data subject for exercising his or her rights under Articles 15 to 22, unless the controller demonstrates that it is not in a position to identify the data subject.

The controller shall provide information on action taken on a request under Articles 15 to 22 to the data subject without undue delay and in any event within one month of receipt of the request. That period may be extended by two further months where necessary, taking into account the complexity and number of the requests. The controller shall inform the data subject of any such extension within one month of receipt of the request, together with the reasons for the delay. Where the data subject makes the request by electronic form means, the information shall be provided by electronic means where possible, unless otherwise requested by the data subject.

If the controller does not take action on the request of the data subject, the controller shall inform the data subject without delay and at the latest within one month of receipt of the request of the reasons for not taking action and on the possibility of lodging a complaint with a supervisory authority and seeking a judicial remedy.

Information provided under Articles 13 and 14 and any communication and any actions taken under Articles 15 to 22 and 34 shall be provided free of charge. Where requests from a data subject are manifestly unfounded or excessive, in particular because of their repetitive character, the controller may either:

charge a reasonable fee taking into account the administrative costs of providing the information or communication or taking the action requested; or

refuse to act on the request.

The controller shall bear the burden of demonstrating the manifestly unfounded or excessive character of the request.

Without prejudice to Article 11, where the controller has reasonable doubts concerning the identity of the natural person making the request referred to in Articles 15 to 21, the controller may request the provision of additional information necessary to confirm the identity of the data subject.

The information to be provided to data subjects pursuant to Articles 13 and 14 may be provided in combination with standardised icons in order to give in an easily visible, intelligible and clearly legible manner a meaningful overview of the intended processing. Where the icons are presented electronically they shall be machine-readable.

The Commission shall be empowered to adopt delegated acts in accordance with Article 92 for the purpose of determining the information to be presented by the icons and the procedures for providing standardised icons.

Suitable Recitals

The principle of transparency; (59) Procedures for the exercise of the rights of the data subjects; (60) Information obligation; (73) Restrictions of rights and principles.

COMMENTARY:

Rights of Data Subjects under the GDPR

All natural persons whose personal data is processed by a Data Controller (DC) or Data Processor (DP) within the territorial scope of the GDPR, are Data Subjects and hence entitled to these rights. The DC is the responsible for allowing data subjects to exercise their rights and to ensure that they can make effective use of them. In that sense, it’s not only allowing the data subjects to exercise their rights but also to ensure the effectiveness. For instance, to allow a Data Subject to object the processing without providing all the information about the processing, wouldn’t ensure the effective use of his/her right. Also, the DP shall observe and commit with the protection of the data subjects’ rights in line with article 28 (3)(h) GDPR.

The modalities applicable for the exercise of the rights

Provide all the information relating to the processing of their personal data in a clear and understandable language, free of charge and without undue delay and in any event within 1 month of receipt of the request. Main Recital: 58 and 59

/ Restrictions: Art.12 (2) and (5) (b)

Recital 58 The principle of transparency

The principle of transparency requires that any information addressed to the public or to the data subject be concise, easily accessible and easy to understand, and that clear and plain language and, additionally, where appropriate, visualisation be used. Such information could be provided in electronic form, for example, when addressed to the public, through a website. This is of particular relevance in

situations where the proliferation of actors and the technological complexity of practice make it difficult for the data subject to know and understand whether, by whom and for what purpose personal data relating to him or her are being collected, such as in the case of online advertising. Given that children merit specific protection, any information and communication, where processing is addressed to a child, should be in such a clear and plain language that the child can easily understand.

Recital 59 Procedures for the exercise of the rights of the data subjects

Modalities should be provided for facilitating the exercise of the data subject’s rights under this Regulation, including mechanisms to request and, if applicable, obtain, free of charge, in particular, access to and rectification or erasure of personal data and the exercise of the right to object. The controller should also provide means for requests to be made electronically, especially where personal data are processed by electronic means. The controller should be obliged to respond to requests from the data subject without undue delay and at the latest within one month and to give reasons where the controller does not intend to comply with any such requests.

Section 2: Information and access to personal data

Art. 13 GDPR Information to be provided where personal data are collected from the data subject

1. Where personal data relating to a data subject are collected from the data subject, the controller shall, at the time when personal data are obtained, provide the data subject with all of the following information:

The identity and the contact details of the controller and, where applicable, of the controller’s representative;

The contact details of the data protection officer, where applicable;

The purposes of the processing for which the personal data are intended as well as the legal basis for the processing;

Where the processing is based on point (f) of Article 6(1), the legitimate interests pursued by the controller or by a third party;

The recipients or categories of recipients of the personal data, if any;

Where applicable, the fact that the controller intends to transfer personal data to a third country or international organisation and the existence or absence of an adequacy decision by the Commission, or in the case of transfers referred to in Article 46 or 47, or the second subparagraph of Article 49(1), reference to the appropriate or suitable safeguards and the means by which to obtain a copy of them or where they have been made available.

2. In addition to the information referred to in paragraph 1, the controller shall, at the time when personal data are obtained, provide the data subject with the following further information necessary to ensure fair and transparent processing:

The period for which the personal data will be stored, or if that is not possible, the criteria used to determine that period;

The existence of the right to request from the controller access to and rectification or erasure of personal data or restriction of processing concerning the data subject or to object to processing as well as the right to data portability;

Where the processing is based on point (a) of Article 6(1) or point (a) of Article 9(2), the existence of the right to withdraw consent at any time, without affecting the lawfulness of processing based on consent before its withdrawal;

The right to lodge a complaint with a supervisory authority;

Whether the provision of personal data is a statutory or contractual requirement, or a requirement necessary to enter into a contract, as well as whether the data subject is obliged to provide the personal data and of the possible consequences of failure to provide such data;

The existence of automated decision-making, including profiling, referred to in Article 22(1) and (4) and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject.

Where the controller intends to further process the personal data for a purpose other than that for which the personal data were collected, the controller shall provide the data subject prior to that further processing with information on that other purpose and with any relevant further information as referred to in paragraph 2.

Paragraphs 1, 2 and 3 shall not apply where and insofar as the data subject already has the information.

Suitable Recitals

(60) Information obligation; (61) Time of information; (62) Exceptions to the obligation to provide information.

COMMENTARY:

Article 13 of the Regulation increases the obligation of notification when the data is collected from the data subject unless he/she already has the relevant information. The obligatory elements of information already presented in the Directive are diversified: the information given should serve to identify the possible delegate to the data protection, any representative of the controller, the legal basis and the purpose of processing or the legitimate interests on which the controller is based. Other mandatory information includes the will to make a transfer of data to a recipient in a third country or an international organization, the lack of decision on adequacy of the level of protection or, if appropriate, the reference to the appropriate

or adequate safeguards and the ways to obtain a copy or where they were made available.

The concept of recipient must be understood as a natural or legal person, public authority, agency or another body, to which the personal data are disclosed, whether a third party or not; public authorities which may receive personal data in the framework of a particular inquiry in accordance shall not be regarded as recipients (Art. 4 (9)). The obligation to notify the other elements of information is required to ensure "fair and transparent processing" which should