The GDPR

According to Article 21 of the Regulation, the right to object may be exercised on grounds relating to the data subject’s particular situation and for processing based on:

- Article 6 (1), e), i.e., “the processing is necessary to the performance of a task in the public interest or in the exercise of the official authority vested in the controller”;

- Article 6 (1), f), i.e., when the processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

It should be noted in extremis that these assumptions included the profiling done on these grounds.

In other words, the right to object, as it was initially provided for in the Directive, can be invoked in both cases of lawfulness of processing covered and not, for example, when the processing is based on the data subject’s consent. While the Directive to the Member States provides at least the application of the right to object in these two cases of processing, the Regulation seems opposed to the extension of the scope of the right to object any further, as provided for in some national laws under the Directive.

This restriction seems to be partially compensated by the possibility to withdraw the consent to processing at any time, which will require the controller to refuse to continue the processing, knowing that the withdrawal of consent does not question the lawfulness of the processing prior to the withdrawal (Art. 7 (3)).

Furthermore, the controller may refuse to implement the right to object of the data subject when establishing the existence of compelling and legitimate grounds justifying the processing, which take priority over the data subject’s interests or rights and freedoms, or for the recognition, exercise or defence of a legal right.

The Regulation also provides that the data subject may object at any time the processing of their personal data for marketing purposes, including profiling done for this purpose (Art. 21 § 2). 

The existence of these rights to object must be brought to the knowledge of the data subject, clearly and separately from any other information, at the time of the first communication with the data subject at the latest. The notification can be made by automated means as part of an offer of the use of an information society service and notwithstanding the Directive 2002/58/EC.

Finally, the controller may refuse to proceed with the right to object of the data subject when the data are processed for historical, statistical or scientific purposes in the meaning of Article 89, if he or she can demonstrate that the processing is necessary for the performance of a task of public interest.

The Directive

The right to object by the person concerned by a processing of personal data was already provided by Article 14 of the Directive. Such right allowed any person to object to the processing of his or her data, by referring to "compelling legitimate grounds relating to his particular situation", at least when the processing was necessary for the performance of a public controller (Article 7 (e)) or when the processing was based on the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed (Article 7 (f)). In addition, this right allowed anyone to object to the processing of his data for marketing purposes, regardless of the basis for processing.

Potential issues

According to the Belgian Commission for the Protection of Privacy in its opinion 10/2014 of 5 February 2014, the wording of Article 21 of the second draft Regulation led to the "unacceptable risk of the controllers continuously invoking their legitimate interest in order to object to the right to object exercised by the subject data".

It is doubtlessly true that the ability left to the controller to refuse to comply with the right to object of the data subject entrusting him the task to make a balance between its legitimate interests and those of the data subject will not be easy to exercise. The data subject has however more effective remedies in case of unjustified refusal and the controller is also at risk receiving sanctions from the supervisory authority.

European Union

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Article 29 Working Party

Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679 - wp251rev.01 (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.

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European Union

CJEU caselaw

C-131/12 (13 May 2014) - Google Spain et Google

1.      Article 2(b) and (d) 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 are to be interpreted as meaning that, first, the activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as ‘processing of personal data’ within the meaning of Article 2(b) when that information contains personal data and, second, the operator of the search engine must be regarded as the ‘controller’ in respect of that processing, within the meaning of Article 2(d).

2.      Article 4(1)(a) of Directive 95/46 is to be interpreted as meaning that processing of personal data is carried out in the context of the activities of an establishment of the controller on the territory of a Member State, within the meaning of that provision, when the operator of a search engine sets up in a Member State a branch or subsidiary which is intended to promote and sell advertising space offered by that engine and which orientates its activity towards the inhabitants of that Member State.

3.      Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, in order to comply with the rights laid down in those provisions and in so far as the conditions laid down by those provisions are in fact satisfied, the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.

4.      Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, when appraising the conditions for the application of those provisions, it should inter alia be examined whether the data subject has a right that the information in question relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name, without it being necessary in order to find such a right that the inclusion of the information in question in that list causes prejudice to the data subject. As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question.

Opinion of Advocate general

Judgment of the Court

C-398/15 (9 March 2017) - Manni

Article 6(1)(e), Article 12(b) and subparagraph (a) of the first paragraph of Article 14 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, read in conjunction with Article 3 of the First Council Directive 68/151/EEC of 9 March 1968 on co-ordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community, as amended by Directive 2003/58/EC of the European Parliament and of the Council of 15 July 2003, must be interpreted as meaning that, as EU law currently stands, it is for the Member States to determine whether the natural persons referred to in Article 2(1)(d) and (j) of that directive may apply to the authority responsible for keeping, respectively, the central register, commercial register or companies register to determine, on the basis of a case-by-case assessment, if it is exceptionally justified, on compelling legitimate grounds relating to their particular situation, to limit, on the expiry of a sufficiently long period after the dissolution of the company concerned, access to personal data relating to them, entered in that register, to third parties who can demonstrate a specific interest in consulting that data.

Opinion of Advocate general

Judgment of the Court

C‑507/17 (24 september 2019) - Google (Portée territoriale du déréférencement)

On a proper construction of Article 12(b) and subparagraph (a) of the first paragraph of Article 14 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, and of Article 17(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46 (General Data Protection Regulation), where a search engine operator grants a request for de-referencing pursuant to those provisions, that operator is not required to carry out that de-referencing on all versions of its search engine, but on the versions of that search engine corresponding to all the Member States, using, where necessary, measures which, while meeting the legal requirements, effectively prevent or, at the very least, seriously discourage an internet user conducting a search from one of the Member States on the basis of a data subject’s name from gaining access, via the list of results displayed following that search, to the links which are the subject of that request.

Opinion of Advocate general

Judgment of the Court

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