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Article 13
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Information to be provided where personal data are collected from the data subject

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Articles related to article 13

Key words related to article 13

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(39) Any processing of personal data should be lawful and fair. It should be transparent to natural persons that personal data concerning them are collected, used, consulted or otherwise processed and to what extent the personal data are or will be processed. The principle of transparency requires that any information and communication relating to the processing of those personal data be easily accessible and easy to understand, and that clear and plain language be used. That principle concerns, in particular, information to the data subjects on the identity of the controller and the purposes of the processing and further information to ensure fair and transparent processing in respect of the natural persons concerned and their right to obtain confirmation and communication of personal data concerning them which are being processed. Natural persons should be made aware of risks, rules, safeguards and rights in relation to the processing of personal data and how to exercise their rights in relation to such processing. In particular, the specific purposes for which personal data are processed should be explicit and legitimate and determined at the time of the collection of the personal data. The personal data should be adequate, relevant and limited to what is necessary for the purposes for which they are processed. This requires, in particular, ensuring that the period for which the personal data are stored is limited to a strict minimum. Personal data should be processed only if the purpose of the processing could not reasonably be fulfilled by other means. In order to ensure that the personal data are not kept longer than necessary, time limits should be established by the controller for erasure or for a periodic review. Every reasonable step should be taken to ensure that personal data which are inaccurate are rectified or deleted. Personal data should be processed in a manner that ensures appropriate security and confidentiality of the personal data, including for preventing unauthorised access to or use of personal data and the equipment used for the processing.

(58) 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.

(59) 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.

(60) The principles of fair and transparent processing require that the data subject be informed of the existence of the processing operation and its purposes. The controller should provide the data subject with any further information necessary to ensure fair and transparent processing taking into account the specific circumstances and context in which the personal data are processed. Furthermore, the data subject should be informed of the existence of profiling and the consequences of such profiling. Where the personal data are collected from the data subject, the data subject should also be informed whether he or she is obliged to provide the personal data and of the consequences, where he or she does not provide such data. That information 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 should be machine-readable.

(61) The information in relation to the processing of personal data relating to the data subject should be given to him or her at the time of collection from the data subject, or, where the personal data are obtained from another source, within a reasonable period, depending on the circumstances of the case. Where personal data can be legitimately disclosed to another recipient, the data subject should be informed when the personal data are first disclosed to the recipient. Where the controller intends to process the personal data for a purpose other than that for which they were collected, the controller should provide the data subject prior to that further processing with information on that other purpose and other necessary information. Where the origin of the personal data cannot be provided to the data subject because various sources have been used, general information should be provided.

(62) However, it is not necessary to impose the obligation to provide information where the data subject already possesses the information, where the recording or disclosure of the personal data is expressly laid down by law or where the provision of information to the data subject proves to be impossible or would involve a disproportionate effort. The latter could in particular be the case where processing is carried out for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes. In that regard, the number of data subjects, the age of the data and any appropriate safeguards adopted should be taken into consideration.

(63) A data subject should have the right of access to personal data which have been collected concerning him or her, and to exercise that right easily and at reasonable intervals, in order to be aware of, and verify, the lawfulness of the processing. This includes the right for data subjects to have access to data concerning their health, for example the data in their medical records containing information such as diagnoses, examination results, assessments by treating physicians and any treatment or interventions provided. Every data subject should therefore have the right to know and obtain communication in particular with regard to the purposes for which the personal data are processed, where possible the period for which the personal data are processed, the recipients of the personal data, the logic involved in any automatic personal data processing and, at least when based on profiling, the consequences of such processing. Where possible, the controller should be able to provide remote access to a secure system which would provide the data subject with direct access to his or her personal data. That right should not adversely affect the rights or freedoms of others, including trade secrets or intellectual property and in particular the copyright protecting the software. However, the result of those considerations should not be a refusal to provide all information to the data subject. Where the controller processes a large quantity of information concerning the data subject, the controller should be able to request that, before the information is delivered, the data subject specify the information or processing activities to which the request relates.

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(38) Whereas, if the processing of data is to be fair, the data subject must be in a position to learn of the existence of a processing operation and, where data are collected from him, must be given accurate and full information, bearing in mind the circumstances of the collection;

(39) Whereas certain processing operations involve data which the controller has not collected directly from the data subject; whereas, furthermore, data can be legitimately disclosed to a third party, even if the disclosure was not anticipated at the time the data were collected from the data subject; whereas, in all these cases, the data subject should be informed when the data are recorded or at the latest when the data are first disclosed to a third party;

(40) Whereas, however, it is not necessary to impose this obligation of the data subject already has the information; whereas, moreover, there will be no such obligation if the recording or disclosure are expressly provided for by law or if the provision of information to the data subject proves impossible or would involve disproportionate efforts, which could be the case where processing is for historical, statistical or scientific purposes; whereas, in this regard, the number of data subjects, the age of the data, and any compensatory measures adopted may be taken into consideration;

The GDPR

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 change nothing in substance.

On the contrary, the elements of information are more numerous.

Now it also includes in particular the period of data storage, or at least the criteria for determining the existence of all the rights of a person (including for example the right to data portability or withdrawal of consent), and the right to lodge a complaint with a supervisory authority.

The possible compulsory nature of the collection results in the highest precision (regulatory or contractual nature of the requirement of providing the data, including consequences on the conclusion of a contract for the provision of data, etc.).

The controller should also, where appropriate, notify about the existence of any automated decision-making, including profiling under Articles 22 (1) and (4) as well as significant information of the underlying logic and consequences of the processing for the data subject.

Where appropriate, the changes of the purposes of processing data against the initial purpose must also be notified which means, if appropriate, new preliminary information on all of the above elements.

The Directive

Article 10 of the Directive provided for an obligation to notify the data subject that is differently implemented depending on whether the data are collected directly from the data subject or from a third party.

Potential issues

The difficulty results not so much from the large amount of information which should be taken into account, but from the uncertainty about their transmission to the data subject, as the great majority of these is conditioned by the need for "fair and transparent” processing. It is difficult to state whether, where in doubt, the controllers will opt for transparency or not, as there is a risk for the content of some of such information to pose difficulty (identification of legitimate interests, for example).

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Group 29

Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679 (6 February 2018)

(Endorsed by the EDPB)

The General Data Protection Regulation (the GDPR), specifically addresses profiling and automated individual decision-making, including profiling.

Profiling and automated decision-making are used in an increasing number of sectors, both private and public. Banking and finance, healthcare, taxation, insurance, marketing and advertising are just a few examples of the fields where profiling is being carried out more regularly to aid decision-making.

Advances in technology and the capabilities of big data analytics, artificial intelligence and machine learning have made it easier to create profiles and make automated decisions with the potential to significantly impact individuals’ rights and freedoms.

The widespread availability of personal data on the internet and from Internet of Things (IoT) devices, and the ability to find correlations and create links, can allow aspects of an individual’s personality or behaviour, interests and habits to be determined, analysed and predicted.

Profiling and automated decision-making can be useful for individuals and organisations, delivering benefits such as:

  • increased efficiencies; and
  • resource savings.

They have many commercial applications, for example, they can be used to better segment markets and tailor services and products to align with individual needs. Medicine, education, healthcare and transportation can also all benefit from these processes.

However, profiling and automated decision-making can pose significant risks for individuals’ rights and freedoms which require appropriate safeguards.

These processes can be opaque. Individuals might not know that they are being profiled or understand what is involved.

Profiling can perpetuate existing stereotypes and social segregation. It can also lock a person into a specific category and restrict them to their suggested preferences. This can undermine their freedom to choose, for example, certain products or services such as books, music or newsfeeds. In some cases, profiling can lead to inaccurate predictions. In other cases it can lead to denial of services and goods and unjustified discrimination.

The GDPR introduces new provisions to address the risks arising from profiling and automated decision-making, notably, but not limited to, privacy. The purpose of these guidelines is to clarify those provisions.

This document covers:

  • Definitions of profiling and automated decision-making and the GDPR approach to these in general – Chapter II
  • General provisions on profiling and automated decision-making – Chapter III
  • Specific provisions on solely automated decision-making defined in Article 22 - Chapter IV
  • Children and profiling – Chapter V
  • Data protection impact assessments and data protection officers– Chapter VI

The Annexes provide best practice recommendations, building on the experience gained in EU Member States.

The Article 29 Data Protection Working Party (WP29) will monitor the implementation of these guidelines and may complement them with further details as appropriate.

Link

Guidelines on transparency under Regulation 2016/679 (11 April 2018)

(Endorsed by the EDPB)

These guidelines provide practical guidance and interpretative assistance from the Article 29 Working Party (WP29) on the new obligation of transparency concerning the processing of personal data under the General Data Protection Regulation1 (the “GDPR”). Transparency is an overarching obligation under the GDPR applying to three central areas: (1) the provision of information to data subjects related to fair processing; (2) how data controllers communicate with data subjects in relation to their rights under the GDPR; and (3) how data controllers facilitate the exercise by data subjects of their rights. Insofar as compliance with transparency is required in relation to data processing under Directive (EU) 2016/680, these guidelines also apply to the interpretation of that principle. These guidelines are, like all WP29 guidelines, intended to be generally applicable and relevant to controllers irrespective of the sectoral, industry or regulatory specifications particular to any given data controller. As such, these guidelines cannot address the nuances and many variables which may arise in the context of the transparency obligations of a specific sector, industry or regulated area. However, these guidelines are intended to enable controllers to understand, at a high level, WP29’s interpretation of what the transparency obligations entail in practice and to indicate the approach which WP29 considers controllers should take to being transparent while embedding fairness and accountability into their transparency measures.

Transparency is a long established feature of the law of the EU. It is about engendering trust in the processes which affect the citizen by enabling them to understand, and if necessary, challenge those processes. It is also an expression of the principle of fairness in relation to the processing of personal data expressed in Article 8 of the Charter of Fundamental Rights of the European Union. Under the GDPR (Article 5(1)(a)), in addition to the requirements that data must be processed lawfully and fairly, transparency is now included as a fundamental aspect of these principles. Transparency is intrinsically linked to fairness and the new principle of accountability under the GDPR. It also follows from Article 5.2 that the controller must always be able to demonstrate that personal data are processed in a transparent manner in relation to the data subject. Connected to this, the accountability principle requires transparency of processing operations in order that data controllers are able to demonstrate compliance with their obligations under the GDPR.

In accordance with Recital 171 of the GDPR, where processing is already under way prior to 25 May 2018, a data controller should ensure that it is compliant with its transparency obligations as of 25 May 2018 (along with all other obligations under the GDPR). This means that prior to 25 May 2018, data controllers should revisit all information provided to data subjects on processing of their personal data (for example in privacy statements/ notices etc.) to ensure that they adhere to the requirements in relation to transparency which are discussed in these guidelines. Where changes or additions are made to such information, controllers should make it clear to data subjects that these changes have been effected in order to comply with the GDPR. WP29 recommends that such changes or additions be actively brought to the attention of data subjects but at a minimum controllers should make this information publically available (e.g. on their website). However, if the changes or additions are material or substantive, then in line with paragraphs 29 to 32 below, such changes should be actively brought to the attention of the data subject.

Transparency, when adhered to by data controllers, empowers data subjects to hold data controllers and processors accountable and to exercise control over their personal data by, for example, providing or withdrawing informed consent and actioning their data subject rights. The concept of transparency in the GDPR is user-centric rather than legalistic and is realised by way of specific practical requirements on data controllers and processors in a number of articles. The practical (information) requirements are outlined in Articles 12 - 14 of the GDPR. However, the quality, accessibility and comprehensibility of the information is as important as the actual content of the transparency information, which must be provided to data subjects.

The transparency requirements in the GDPR apply irrespective of the legal basis for processing and throughout the life cycle of processing. This is clear from Article 12 which provides that transparency applies at the following stages of the data processing cycle:

  • before or at the start of the data processing cycle, i.e. when the personal data is being collected either from the data subject or otherwise obtained;
  • throughout the whole processing period, i.e. when communicating with data subjects about their rights; and
  • at specific points while processing is ongoing, for example when data breaches occur or in the case of material changes to the processing.

Link

CJEU caselaw

C-201/14 (1 October 2015)

Articles 10, 11 and 13 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995, on the protection of individuals with regard to the processing of personal data and on the free movement of such data, must be interpreted as precluding national measures, such as those at issue in the main proceedings, which allow a public administrative body of a Member State to transfer personal data to another public administrative body and their subsequent processing, without the data subjects having been informed of that transfer or processing.

Opinion of Advocate general

Judgment of the Court

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Regulation
1e 2e

Art. 13

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:

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

(e) the recipients or categories of recipients of the personal data, if any;

(f) 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:

(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) 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;

(c) 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;

(d) the right to lodge a complaint with a supervisory authority;

(e) 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;

(f) 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.

3.   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.

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

Art. 14

1. Where personal data relating to a data subject are collected, the controller shall provide the data subject with at least the following information:

(a) the identity and the contact details of the controller and, if any, of the controller's representative and of the data protection officer;

(b) the purposes of the processing for which the personal data are intended, including the contract terms and general conditions where the processing is based on point (b) of Article 6(1) and the legitimate interests pursued by the controller where the processing is based on point (f) of Article 6(1);

(c) the period for which the personal data will be stored;

(d) the existence of the right to request from the controller access to and rectification or erasure of the personal data concerning the data subject or to object to the processing of such personal data;

(e) the right to lodge a complaint to the supervisory authority and the contact details of the supervisory authority;

(f) the recipients or categories of recipients of the personal data;

(g) where applicable, that the controller intends to transfer to a third country or international organisation and on the level of protection afforded by that third country or international organisation by reference to an adequacy decision by the Commission;

(h) any further information necessary to guarantee fair processing in respect of the data subject, having regard to the specific circumstances in which the personal data are collected.

2. Where the personal data are collected from the data subject, the controller shall inform the data subject, in addition to the information referred to in paragraph 1, whether the provision of personal data is obligatory or voluntary, as well as the possible consequences of failure to provide such data.

3.           Where the personal data are not collected from the data subject, the controller shall inform the data subject, in addition to the information referred to in paragraph 1, from which source the personal data originate.

4.           The controller shall provide the information referred to in paragraphs 1, 2 and 3:

(a)     at the time when the personal data are obtained from the data subject; or

(b)     where the personal data are not collected from the data subject, at the time of the recording or within a reasonable period after the collection, having regard to the specific circumstances in which the data are collected or otherwise processed, or, if a disclosure to another recipient is envisaged, and at the latest when the data are first disclosed.

5.           Paragraphs 1 to 4 shall not apply, where:

(a)     the data subject has already the information referred to in paragraphs 1, 2 and 3; or

(b)     the data are not collected from the data subject and the provision of such information proves impossible or would involve a disproportionate effort; or

(c)     the data are not collected from the data subject and recording or disclosure is expressly laid down by law; or

(d)     the data are not collected from the data subject and the provision of such information will impair the rights and freedoms of others, as defined in Union law or Member State law in accordance with Article 21.

6.           In the case referred to in point (b) of paragraph 5, the controller shall provide appropriate measures to protect the data subject's legitimate interests.

7.           The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria for categories of recipients referred to in point (f) of paragraph 1, the requirements for the notice of potential access referred to in point (g) of paragraph 1, the criteria for the further information necessary referred to in point (h) of paragraph 1 for specific sectors and situations, and the conditions and appropriate safeguards for the exceptions laid down in point (b) of paragraph 5. In doing so, the Commission shall take the appropriate measures for micro, small and medium-sized-enterprises.

8.           The Commission may lay down standard forms for providing the information referred to in paragraphs 1 to 3, taking into account the specific characteristics and needs of various sectors and data processing situations where necessary. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2).
2nd proposal close

Art. 14

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 the following information:

(a) the identity and the contact details of the controller and, if any, of the controller's representative ; the controller shall also include the contact details of the data protection officer, if any;

(b) the purposes of the processing for which the personal data are intended (...) as well as the legal basis of the processing.

1a. 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 such further information that is necessary to ensure fair and transparent processing (...) , having regard to the specific circumstances and context in which the personal data are processed:

(a) (...);

(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 recipients or categories of recipients of the personal data;

(d) where applicable, that the controller intends to transfer personal data to a recipient in a third country or international organisation;

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

(ea) 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;

(f) the right to lodge a complaint to a supervisory authority (...);

(g) 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 data and of the possible consequences of failure to provide such data ;

(h) the existence of automated decision making including profiling referred to in Article 20(1) and (3) and information concerning (...) the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject.

1b. Where the controller intends to further process the data (...) for a purpose other than the one for which the 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 1a.

2. (...)

3. (...)

4. (...)

5. Paragraphs 1, 1a and 1b shall not apply where and insofar as the data subject already has the information,

6. (...)

7. (...)

 8. (...)
Directive close

Art. 10

Member States shall provide that the controller or his representative must provide a data subject from whom data relating to himself are collected with at least the following information, except where he already has it:

(a) the identity of the controller and of his representative, if any;

(b) the purposes of the processing for which the data are intended;

(c) any further information such as

- the recipients or categories of recipients of the data,

- whether replies to the questions are obligatory or voluntary, as well as the possible consequences of failure to reply,

- the existence of the right of access to and the right to rectify the data concerning him

in so far as such further information is necessary, having regard to the specific circumstances in which the data are collected, to guarantee fair processing in respect of the data subject.
Spain
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Article 5.- Right of information in the collection of data.- Organic Law 15/1999 on the Protection of Personal data.-

1. Data subjects from who personal data are requested must previously be informed explicitly, precisely and unequivocally of the following:

a) The existence of a file or personal data processing operation, the purpose of collecting the data, and the recipients of the information.

b) The obligatory or voluntary nature of the reply to the questions put to them.

c) The consequences of obtaining the data or of refusing to provide them.

d) The possibility of exercising rights of access, rectification, erasure and objection.

e) The identity and address of the controller or of his representative, if any.

Where the controller is not established on the territory of the European Union, and he is using for the processing means situated on Spanish territory, he must, unless these means are being used for transit purposes, designate a representative in Spain, without prejudice to any action which may be taken against the controller himself.

2. Where questionnaires or other forms are used for collection, they must contain the warnings set out in the previous paragraph in a clearly legible form.

3. The information set out in subparagraphs (b), (c) and (d) of paragraph 1 shall not be required if its content can be clearly deduced from the nature of the personal data requested or the circumstances in which they are obtained.

4. Where the personal data have not been obtained from the data subject, he must be informed explicitly, precisely and unequivocally by the controller or his representative within three months from the recording of the data - unless he has been informed previously - of the content of the processing, the origin of the data, and the information set out in (a), (d) and (e) of paragraph 1 of this Article.

5. The provisions of the preceding paragraph shall not apply where explicitly provided for by law, when the processing is for historical, statistical or scientific purposes, or when it is not possible to inform the data subject, or where this would involve a disproportionate effort in the view of the Data Protection Agency or the corresponding regional body, in view of the number of data subjects, the age of the data and the possible compensatory measures.

The provisions of the preceding paragraph shall also not apply where the data come from sources accessible to the public and are intended for advertising activity or market research, in which case each communication sent to the data subject shall inform him of the origin of the data, the identity of the controller and the rights of the data subject.

 

Article 12.2 Royal Decree Implementing the Organic Law 15/1999

When consent of the data subject is requested for the assignment of his data, he shall be informed in such a way as to understand unequivocally the purpose for which the relevant data shall be used and the type of activity performed by the recipient. Otherwise, consent shall be null and void.

 
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