Author: Alexander Dix
- Where personal data have not been obtained from the data subject, the controller shall provide the data subject with the following information:
(a) the identity and the contact details of the controller and, where applicable, of the controller’s representative;
(b) the contact details of the data protection officer, where applicable;
(c) the purposes of the processing for which the personal data are intended as well as the legal basis for the processing;
(d) the categories of personal data concerned;
(e) the recipients or categories of recipients of the personal data, if any;
(f) where applicable, that the controller intends to transfer personal data to a recipient in 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 to obtain a copy of them or where they have been made available.
- In addition to the information referred to in paragraph 1, the controller shall provide the data subject with the following information necessary to ensure fair and transparent processing in respect of the data subject:
(a) the period for which the personal data will be stored, or if that is not possible, the criteria used to determine that period;
(b) where the processing is based on point (f) of Article 6 (1), the legitimate interests pursued by the controller or by a third party;
(c) 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 and to object to processing as well as the right to data portability;
(d) where 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;
(e) the right to lodge a complaint with a supervisory authority;
(f) from which source the personal data originate, and if applicable, whether it came from publicly accessible sources;
(g) 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.
- The controller shall provide the information referred to in paragraphs 1 and 2:
(a) within a reasonable period after obtaining the personal data, but at the latest within one month, having regard to the specific circumstances in which the personal data are processed;
(b) if the personal data are to be used for communication with the data subject, at the latest at the time of the first communication to that data subject; or
(c) if a disclosure to another recipient is envisaged, at the latest when the personal data are first disclosed.
- Where the controller intends to further process the personal data for a purpose other than that for which the personal data were obtained, 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 to 4 shall not apply where and insofar as:
(a) the data subject already has the information;
(b) the provision of such information proves impossible or would involve a disproportionate effort, in particular for processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, subject to the conditions and safeguards referred to in Article 89 (1) or in so far as the obligation referred to in paragraph 1 of this Article is likely to render impossible or seriously impair the achievement of the objectives of that processing. In such cases the controller shall take appropriate measures to protect the data subject’s rights and freedoms and legitimate interests, including making the information publicly available;
(c) obtaining or disclosure is expressly laid down by Union or Member State law to which the controller is subject and which provides appropriate measures to protect the data subject’s legitimate interests; or
(d) where the personal data must remain confidential subject to an obligation of professional secrecy regulated by Union or Member State law, including a statutory obligation of secrecy.
A. Preliminary remarks
The Regulation – like the Directive 95/46 – does not prescribe explicitly that data should be collected directly with from the data subject. However, by adopting detailed and broadened obligations to inform in the case of indirect collection, the Union legislature has made it clear that any deviation from the direct collection of personal data leads to a more intensive encroachment upon the fundamental right to data protection under Art. 8 of the European Charter. The collection of data from third parties deprives the data subject of the possibility to get access to his data and to influence the processing itself; at the same time it increases the risk that incorrect data are processed. Therefore, compensatory measures are necessary to ensure compliance with the principle of transparency and fair processing of data as key elements of informational self-determination. These measures are the minimum standard necessary in an increasingly intransparent reality of global data processing. In particular, the surreptitious, covert collection of personal data of which the data subject is indefinitely left unaware is normally unlawful. Exceptions are only possible in the framework and under the conditions of Art. 14 para. 5 and Art. 23. On the other hand, the mere information of the data subject does not replace the legal basis for collecting personal data indirectly (→ Art. 12 mn. 4).
B. Legislative history
A special provision on obligations to inform the data subject in case of collecting personal data indirectly – following the example of Art. 11 of the Directive 95/46 – was only inserted in the Regulation following a proposal by the Council (→ Art. 13 mn. 3). The duty to inform the data subject about the source of the data and whether they stem from public sources had already been supported by the Commission and Parliament. The obligation to inform on intended changes of purpose was proposed by the Council. The exception on processing data for historical and scientific purposes goes back to a proposal by the Parliament; this was extended to include archival purposes during the trialogue.
C. Obligations to inform when collecting data indirectly
I. Scope and primary obligations (para. 1)
The primary obligations to inform the data subject in cases of indirect data collection are essentially identical with the obligations in cases of direct collection; therefore, reference can be made to the commentary on Art. 13 para. 1 (→ Art. 13 mn. 4–6, 8). Personal data have not been obtained from the data subject also e.g., where users of a social network or messenger service are asked to upload their address book on to the platform of the provider for his marketing purposes. The obligation to inform the data subjects under Art. 14 is non-negotiable (→ Art. 12 mn. 5) and may therefore not be devolved on to the user who uploads his address book including the contact data of third persons.
Beyond the obligation to inform under Art 13 the data subject in the case of indirect data collection also must be informed about the categories of processed data. This entails an abstract description of the types of data which enables the data subject to take further steps, e.g., require access according to Art. 15. The description must be precise and specific enough to enable the data subject to assess the risk caused by the processing of these data. However, the controller does not have to inform the data subject on the precise data which he has received from a third party. There is no difference in substance between the more precise wording of Art. 14 para. 1 lit. f which requires information about the “recipient in a third country” whereas Art. 13 para. 1 lit. f merely speaks of a transmission to “a third country”. The same differences in the wording are to be found in the French and German texts of the Regulation. If a controller receives a request by an authority of a third country, he is not obliged – as the Parliament had proposed – to inform the data subject about this request. However, he is obliged – subject to any exceptions under Art. 23 – to inform about his intention to answer the request.
The crucial difference between the obligations to inform in cases of direct and indirect data collection lies in the timing of the information (→ mn. 8 et seq.) and with respect to the exemptions (→ mn. 10 et seq.).
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