Data protection issues

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This page aims to list and analyse the different key provisions of the European Commission's Proposal for a General Data Protection Regulation and related amendments proposed by the IMCO, ITRE, JURI and LIBE committees.

You can find all the relevant documents on this subject here.

Sommaire

Scope of the Regulation[modifier]

Personal scope[modifier]

1995 Directive's provisions

Article 3 - Scope
  • 1. This Directive shall apply to the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system.
  • 2. This Directive shall not apply to the processing of personal data:
    • - in the course of an activity which falls outside the scope of Community law, such as those provided for by Titles V and VI of the Treaty on European Union and in any case to processing operations concerning public security, defence, State security (including the economic well-being of the State when the processing operation relates to State security matters) and the activities of the State in areas of criminal law,
    • - by a natural person in the course of a purely personal or household activity.

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Proposal's provisions

Article 2 - Material scope
  • 1. This Regulation applies to the processing of personal data wholly or partly by automated means, and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system.
  • 2. This Regulation does not apply to the processing of personal data:
    • (a) in the course of an activity which falls outside the scope of Union law, in particular concerning national security;
    • (b) by the Union institutions, bodies, offices and agencies;
    • (c) by the Member States when carrying out activities which fall within the scope of Chapter 2 of the Treaty on European Union;
    • (d) by a natural person without any gainful interest in the course of its own exclusively personal or household activity;
    • (e) by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties.

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Territorial scope[modifier]

1995 Directive's provisions

Article 4 - National law applicable
  • 1. Each Member State shall apply the national provisions it adopts pursuant to this Directive to the processing of personal data where:
    • (a) the processing is carried out in the context of the activities of an establishment of the controller on the territory of the Member State; when the same controller is established on the territory of several Member States, he must take the necessary measures to ensure that each of these establishments complies with the obligations laid down by the national law applicable;
    • (b) the controller is not established on the Member State's territory, but in a place where its national law applies by virtue of international public law;
    • (c) the controller is not established on Community territory and, for purposes of processing personal data makes use of equipment, automated or otherwise, situated on the territory of the said Member State, unless such equipment is used only for purposes of transit through the territory of the Community.

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Proposal's provisions

Article 3 - Territorial scope
  • 1. This Regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union.
  • 2. This Regulation applies to the processing of personal data of data subjects residing in the Union by a controller not established in the Union, where the processing activities are related to:
    • (a) the offering of goods or services to such data subjects in the Union; or
    • (b) the monitoring of their behaviour.
  • 3. This Regulation applies to the processing of personal data by a controller not established in the Union, but in a place where the national law of a Member State applies by virtue of public international law.

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Material scope[modifier]

1995 Directive's provisions

Article 2 - Definitions
  • (a) 'personal data' shall mean any information relating to an identified or identifiable natural person ('data subject'); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;
  • (b) 'processing of personal data' ('processing') shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;

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Proposal's provisions

Article 4 - Definitions
  • 1. 'data subject' means an identified natural person or a natural person who can be identified, directly or indirectly, by means reasonably likely to be used by the controller or by any other natural or legal person, in particular by reference to an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person;
  • 2. 'personal data' means any information relating to a data subject;

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Consent & exceptions[modifier]

Explicit consent[modifier]

1995 Directive

Article 2 - Definitions
  • (h) 'the data subject's consent' shall mean any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed.

...

Article 7 (Criteria for making data processing legitimate)

  • Member States shall provide that personal data may be processed only if:
    • (a) the data subject has unambiguously given his consent; or

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Proposal

Article 4 - Definitions
  • 8. 'the data subject's consent' means any freely given specific, informed and explicit indication of his or her wishes by which the data subject, either by a statement or by a clear affirmative action, signifies agreement to personal data relating to them being processed.

...

Article 6 - Lawfulness of processing

  • 1. Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:
    • (a) the data subject has given consent to the processing of their personal data for one or more specific purposes;

...

Article 7 - Conditions for consent

  • 1. The controller shall bear the burden of proof for the data subject's consent to the processing of their personal data for specified purposes.
  • 2. If the data subject's consent is to be given in the context of a written declaration which also concerns another matter, the requirement to give consent must be presented distinguishable in its appearance from this other matter.
  • 3. The data subject shall have the right to withdraw his or her consent at any time. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal.
  • 4. Consent shall not provide a legal basis for the processing, where there is a significant imbalance between the position of the data subject and the controller.

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Article 29 Working Party position[modifier]

Opinion (2011) of the Article 29 Data Protection Working Party on the Definition of Consent:

This Opinion is partly issued in response to a request from the Commission in the context of the ongoing review of the Data Protection Directive. It therefore contains recommendations for consideration in the review. Those recommendations include:

  • (i) clarifying the meaning of “unambiguous” consent and explaining that only consent that is based on statements or actions to signify agreement constitutes valid consent;
  • (ii) requiring data controllers to put in place mechanisms to demonstrate consent (within a general accountability obligation);
  • (iii) adding an explicit requirement regarding the quality and accessibility of the information forming the basis for consent, and
  • (iv) a number of suggestions regarding minors and others lacking legal capacity.

The notion of unambiguous consent is helpful for setting up a system that is not overly rigid but provides strong protection. While it has the potential to lead to a reasonable system, unfortunately, its meaning is often misunderstood or simply ignored.

Clarification should aim at emphasizing that unambiguous consent requires the use of mechanisms that leave no doubt of the data subject’s intention to consent. At the same time it should be made clear that the use of default options which the data subject is required to modify in order to reject the processing (consent based on silence) does not in itself constitute unambiguous consent. This is especially true in the on-line environment.

The Council Common Position10 in 1995 introduced the final (today's) definition of consent. It was defined as "any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed". The main change from the 1992 Commission position involved deleting the word "express" that had preceded the word "indication". At the same time, the word "unambiguous" was added to Article 7(a), so it reads as follows: "if the data subject has given his consent unambiguously".


How to read an amendment: added to the initial text / deleted from the initial text

IMCO's Opinion: amendment 63

Article 4 - Definitions
  • 8. ‘the data subject's consent’ means any freely given indication that must be specific, informed and as explicit as possible according to the context, of his or her wishes by which the data subject, either by a statement or by a clear affirmative action, explicitly whenever the data referred to in Article 9(1) are to be processed, signifies agreement to personal data relating to them being processed;

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ITRE's Opinion: amendment 82

Article 4 - Definitions
  • (8) ‘the data subject's consent’ means any freely given specific, informed and explicit unambiguous indication of his or her wishes by which the data subject , either by a statement or by a clear affirmative action, signifies agreement to personal data relating to them being processed. Silence or inactivity does not in itself indicate consent ;

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How to read an amendment: added to the initial text / deleted from the initial text

LIBE rapporteur: amendments 106 & 107

Article 7 - Conditions for consent
  • 4.(a) Consent looses its effectiveness as soon as the processing of personal data is no longer necessary for carrying out the purpose for which they were collected.

...

Article 7 - Conditions for consent

  • 4.(b) The execution of a contract or the provision of a service may not be made conditional on the consent to the processing or use of data that is not necessary for the execution of the contract or the provision of the service pursuant to Article 6(1)(b).

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LIBE members[modifier]

Seven amendments have been submited by seventeen members of LIBE, proposing to withdraw the requirement for an explicit consent (amendments 757, 758, 760, 762, 764, 765 & 766). Those seventeen MEPs are:

  • Lidia Joanna Geringer de Oedenberg (S&D - Poland)
  • Adina-Ioana Vălean (ALDE - Romania)
  • Jens Rohde (ALDE - Denmark)
  • Louis Michel (ALDE - Belgium)
  • Sarah Ludford (ALDE - United Kingdom)
  • Charles Tannock (ECR - United Kingdom)
  • Timothy Kirkhope (ECR - United Kingdom)
  • Axel Voss (EPP - Germany)
  • Seán Kelly (EPP - Ireland)
  • Wim van de Camp (EPP - Netherlands)
  • Hubert Pirker (EPP - Austria)
  • Monika Hohlmeier (EPP - Germany)
  • Georgios Papanikolaou (EPP - Greece)
  • Véronique Mathieu Houillon (EPP - France)
  • Anna Maria Corazza Bildt (EPP - Sweden)
  • Agustín Díaz de Mera García Consuegra (EPP - Spain)
  • Teresa Jiménez-Becerril Barrio (EPP - Spain)

IT Giants' recomandations to MEPs[modifier]

  • Google (February 2012 document): 'a default expectation of explicit consent [...] creates uncertainty and significant burdens for organizations [and] a very real risk that by complying with the new Regulations data controllers will undermine consumer confidence and disempower the citizens' ; 'consent understood as a form of user control can be valid in different ways.'


  • Facebook (March 2012 document): '[the requirement of explicit consent] carries the risk of inundating users with tick boxes and warnings and may result in an overly disrupted or disjointed internet experience. This will inevitably lead to a potential ‘devaluation’ of the principle, and may make it harder for users to make judgments about when it is appropriate to give consent or withhold it. [...] Unambiguous consent should be a valid means of legitimizing data processing. [...] We are seeing great innovation (including granular and sophisticated control tools) from many players in the market to empower users to understand how their information is used and how services work when they choose to share information online. [...] These practices must not be hampered by over- prescriptive and often meaningless consent requirements. [...] The controller is in the best position to decide the appropriate level of information to provide individuals about specific processing activities. The information to be provided for the purposes of obtaining the data subject's consent may be determined by the data controller.'
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Amendment proposed by Facebook
Article 4 - Definitions
  • 'the data subject's consent' means any freely given specific, informed and explicit unambiguous indication of his or her wishes by which the data subject, either by a statement or by a clear affirmative action or by any other method, signifies agreement to personal data relating to them being processed. The information to be provided for the purposes of obtaining the data subject's consent may be determined by the data controller in accordance with Article 5;

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  • Microsoft (February 2012 document): 'There is currently a wide range of mechanisms that effectively enable users to control and consent to collection and use of their information depending on the circumstances involved – including some opt-out technologies that provide stronger protection for consumer privacy than some opt-in mechanisms. For example, an opt-out mechanism that provides complete information on how personal data will be used is more protective of consumer privacy than an opt-in mechanism that does not provide complete information. [...] Equally important, by requiring users to opt in to every use of their data, the Regulation will potentially require internet users to opt in dozens of times, if not more, during a single web surfing session or mobile internet use. Yet consumers demand internet services that are fast, easy-to-use and efficient. Onerous and static opt-in mechanisms instituted by controllers anxious to be in unambiguous compliance with an ambiguous requirement will frustrate many users – and ultimately may lead users to opt in as a matter of routine, even in cases where their privacy would be better served by opting out.'


  • Amazon (Novembre 2012 document): 'Requiring ‘explicit’ consent as the norm for every data use scenario, irrespective of the context of data processing and the privacy risks for data subjects, is overly formalistic and rigid. It risks inhibiting legitimate and innovative business practices in the off- and online environment and impacting user experience and expectations without adding anything to users’ data protection. Consent as a means to gain user acceptance and protect fundamental rights may be devaluated as a consequence of consumers being overloaded with consent requests, making it difficult for them to understand the privacy impact of different data processing operations'
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Amendment proposed by Amazon
Article 4 - Definitions
  • (8) 'the data subject's consent' means any freely given specific, and informed and explicit indication of his or her wishes by which the data subject, either by a statement or by a clear affirmative action or any other appropriate method commensurate to the context of and risk involved with the respective processing activity, signifies agreement to personal data relating to them being processed;

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  • eBay (November 2012 document): 'eBay believes that requiring explicit consent in every situation where consent forms the legal basis for processing personal data is too strict and creates an unnecessary obstacle to online and mobile business models. [..] Therefore, eBay proposes a context-based approach to consent to avoid ‘click-fatigue’ amongst consumers and to improve their user experience.'
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Amendment proposed by eBay
Article 4 - Definitions
  • (8) 'the data subject's consent' means any freely given free, specific, and informed and explicit indication of his or her wishes by which the data subject, either by a statement or by a clear affirmative action, signifies agreement to personal data relating to them being processed expression of will, either by a statement or an action, which, in view of the context and circumstances at the time consent is required, signifies the data subject’s agreement to the processing of the personal data;

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Purpose limitation[modifier]

1995 Directive

Article 6
  • 1. Member States shall provide that personal data must be:
    • ...
    • (b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes. Further processing of data for historical, statistical or scientific purposes shall not be considered as incompatible provided that Member States provide appropriate safeguards;
    • (c) adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed;

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Proposal for a Regulation

Article 5 Principles relating to personal data processing
  • Personal data must be:
    • ...
    • (b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes;
    • (c) adequate, relevant, and limited to the minimum necessary in relation to the purposes for which they are processed; they shall only be processed if, and as long as, the purposes could not be fulfilled by processing information that does not involve personal data;

...

Article 6 Lawfulness of processing

  • ...
  • 4. Where the purpose of further processing is not compatible with the one for which the personal data have been collected, the processing must have a legal basis at least in one of the grounds referred to in points (a) to (e) of paragraph 1. This shall in particular apply to any change of terms and general conditions of a contract.

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IMCO's Opinion: amendments 66 & 77

Article 5 - Principles relating to personal data processing
  • Personal data must be:
    • (a) processed lawfully, fairly and in a transparent manner in relation to the data subject;
    • (b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes;
    • (c) adequate, relevant, and limited to the minimum necessary not excessive in relation to the purposes for which they are processed; they shall only be processed if, and as long as, the purposes could not be fulfilled by processing information that does not involve personal data;

...

Article 6 - Lawfulness of processing

  • ...
  • 4. Where the purpose of further processing is not compatible with the one for which the personal data have been collected, the processing must have a legal basis at least in one of the grounds referred to in points (a) to (e) of paragraph 1. This shall in particular apply to any change of terms and general conditions of a contract.

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JURI's Opinion: Amendment 49

Article 6 - Lawfulness of processing
  • ...
  • 4. Where the purpose of further processing is not compatible with the one for which the personal data have been collected, the processing must have a legal basis at least in one of the grounds referred to in points (a) to (e) (f) of paragraph 1. This shall in particular apply to any change of terms and general conditions of a contract.

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IMCO and JURI's amendments propose to extend the five narrow exceptions allowing data to be further processed for a new purpose to the broad and dangerously vague one of legitimate interest.

Exceptions to consent[modifier]

1995 Directive

Article 3
  • 2. This Directive shall not apply to the processing of personal data:
    • ...
    • by a natural person in the course of a purely personal or household activity.

...

Article 7

  • Member States shall provide that personal data may be processed only if:
    • (a) the data subject has unambiguously given his consent; or
    • (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; or
    • (c) processing is necessary for compliance with a legal obligation to which the controller is subject; or
    • (d) processing is necessary in order to protect the vital interests of the data subject; or
    • (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed; or...

...

Article 9

  • Member States shall provide for exemptions or derogations from the provisions of this Chapter, Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.

...

Article 32

  • 3. By way of derogation from paragraph 2, Member States may provide, subject to suitable safeguards, that data kept for the sole purpose of historical research need not be brought into conformity with Articles 6, 7 and 8 of this Directive.

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Proposal for a Regulation

Article 2
  • 2. This Regulation does not apply to the processing of personal data:
    • ...
    • (d) by a natural person without any gainful interest in the course of its own exclusively personal or household activity;

...

Article 6

  • 1. Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:
    • (a) the data subject has given consent to the processing of their personal data for one or more specific purposes;
    • (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;
    • (c) processing is necessary for compliance with a legal obligation to which the controller is subject;
    • (d) processing is necessary in order to protect the vital interests of the data subject;
    • (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; ...
  • 2. Processing of personal data which is necessary for the purposes of historical, statistical or scientific research shall be lawful subject to the conditions and safeguards referred to in Article 83.

...

Article 80

  • 1. Member States shall provide for exemptions or derogations from the provisions on the general principles in Chapter II, the rights of the data subject in Chapter III, on controller and processor in Chapter IV, on the transfer of personal data to third countries and international organisations in Chapter V, the independent supervisory authorities in Chapter VI and on co-operation and consistency in Chapter VII for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression in order to reconcile the right to the protection of personal data with the rules governing freedom of expression.

...

Article 83

  • 1. Within the limits of this Regulation, personal data may be processed for historical, statistical or scientific research purposes only if:
    • (a) these purposes cannot be otherwise fulfilled by processing data which does not permit or not any longer permit the identification of the data subject;
    • (b) data enabling the attribution of information to an identified or identifiable data subject is kept separately from the other information as long as these purposes can be fulfilled in this manner.
  • 2. Bodies conducting historical, statistical or scientific research may publish or otherwise publicly disclose personal data only if:
    • (a) the data subject has given consent, subject to the conditions laid down in Article 7;
    • (b) the publication of personal data is necessary to present research findings or to facilitate research insofar as the interests or the fundamental rights or freedoms of the data subject do not override these interests; or
    • (c) the data subject has made the data public.

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Legitimate Interest[modifier]

1995 Directive

Article 7 - Criteria for making data processing legitimate
  • Member States shall provide that personal data may be processed only if:
    • (a) the data subject has unambiguously given his consent; or
    • ...
    • (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1 (1).

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Proposal

Article 6 - Lawfulness of processing
  • 1. Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:
    • (a) the data subject has given consent to the processing of their personal data for one or more specific purposes;
    • ...
    • (f) processing is necessary for the purposes of the legitimate interests pursued by a controller, 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. This shall not apply to processing carried out by public authorities in the performance of their tasks.

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Unlike the Directive, the Proposal for a Regulation only refers to the legitimate interest pursued "by a controler", and not to the one pursued "by the controller or by the third party or parties to whom the data are disclosed".

At first sight, the exception set by the Proposal seems narrower. But the Commission clearly explained to Member States representatives that its scope is actually unchanged (Council of the EU, July 2012): "In response to questions posed by [Cyrpus] and other [Member States] regarding the rational for the omission of a third party’s legitimate interest as legal basis for the disclosure of data, the [Commission] explained, as we have understood, that upon the receipt of the data the third party becomes “another” controller and thus it is no longer necessary to refer to third parties." (Cyprus)  ; "As we understand the explanations given by the Commission ’a controller’ is supposed to include both the controller and the third party, given that the third party is also a controller." (Sweden).

The Proposal defines a "controller" as "the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data [...]" (article 4.e), this "processing" meaning "any operation or set of operations which is performed upon personal data [...] such as collection, [...] storage, [...] consultation, use, disclosure by transmission [...];" (article 4.c). Thus, anyone consulting or using personal data is a controller. And the "legitimate interest" exception, as it is defined in the Proposal, would allow companies to process personal data without data subject's consent if those data are intended to be disclosed to anyone willing to consult or use those data and having a legitimate interest to do so.


How to read an amendment: added to the initial text / deleted from the initial text

IMCO's Opinion: amendment 70

Article 6 - Lawfulness of processing
  • 1. Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:
    • (a) the data subject has given consent to the processing of their personal data for one or more specific purposes;
    • ...
    • (f) processing is necessary for the purposes of the legitimate interests pursued by a controller or controllers or by the third party or parties to whom the data are disclosed, 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. This shall not apply to processing carried out by public authorities in the performance of their tasks.

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ITRE's Opinion: amendment 100

Article 6 - Lawfulness of processing
  • 1. Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:
    • (a) the data subject has given consent to the processing of their personal data for one or more specific purposes;
    • ...
    • (f) processing is necessary for the purposes of the legitimate interests pursued by, or on behalf of a controller or a processor, or by a third party or parties in whose interest the data is processed, including for the security of processing, 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. This The interest or fundamental rights and freedoms of the data subject shall not apply to over-ride processing carried out by public authorities in the performance of their tasks or enterprises in the exercise of their legal obligations, and in order to safeguard against fraudulent behaviour.

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JURI's Opinion: amendment 47

Article 6 - Lawfulness of processing
  • 1. Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:
    • (a) the data subject has given consent to the processing of their personal data for one or more specific purposes;
    • ...
    • (f) processing is necessary for the purposes of the legitimate interests pursued by a controller or by a third party or third parties to whom the data are communicated, 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. This shall not apply to processing carried out by public authorities in the performance of their tasks.

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LIBE's rapporteur: amendments 99 to 102

Article 6 - Lawfulness of processing
  • 1. Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:
    • (a) the data subject has given consent to the processing of their personal data for one or more specific purposes;
    • ...
    • (f) processing is necessary for the purposes of the legitimate interests pursued by a controller, 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. This shall not apply to processing carried out by public authorities in the performance of their tasks.
  • 1. (a) If none of the legal grounds for the processing of personal data referred to in paragraph 1 apply, processing of personal data shall be lawful if and to the extent that it is necessary for the purposes of the legitimate interests pursued by the controller, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require the protection of personal data. The data controller shall in that case inform the data subject about the data processing explicitly and separately. The controller shall also publish the reasons for believing that itsinterests override the interests or fundamental rights and freedoms of the data subject. This paragraph shall not apply to processing carried out by public authorities in the performance of their tasks.
  • 1. (b) The legitimate interests of the controller as referred to in paragraph 1a override the interests or fundamental rights and freedoms of the data subject, as a rule, if:
    • (a) processing of personal data takes place as part of the exercise of the right to freedom of expression, the media and the arts, within the limits of Union or national law;
    • (b) processing of personal data is necessary for the enforcement of the legal claims of the data controller or of third parties on behalf of whom the data controller is acting in relation to a specific identified data subject, or for preventing or limiting damage by the data subject to the controller;
    • (c) the data subject has provided personal data to the data controller on the legal ground referred to in point (b) of paragraph 1, and the personal data are used for direct marketing for its own and similar products and services and are not transferred, and the data controller is clearly identified to the data subject;
    • (d) processing of personal data takes place in the context of professional business-to-business relationships and the data were collected from the data subject for that purpose;
    • (e) processing of personal data is necessary for registered non-profit associations, foundations and charities, recognised as acting in the public interest under Union or national law, for the sole purpose of collecting donations.
  • 1. (c) The interests or fundamental rights and freedoms of the data subject as referred to in paragraph 1a override the legitimate interest of the controller, as a rule, if:
    • (a) the processing causes a serious risk of damage to the data subject;
    • (b) special categories of data as referred to in paragraph 1 of article 9, location data, or biometric data are processed;
    • (c) the data subject can reasonably expect, on the basis of the context of the processing, that his or her personal data will only be processed for a specific purpose or treated confidentially, unless the data subject concerned has been informed specifically and separately about the use of his or her personal data for purposes other than the performance of the service;
    • (d) personal data are processed in the context of profiling;
    • (e) personal data is made accessible for a large number of persons or large amounts of personal data about the data subject are processed or combined with other data;
    • (f) the processing of personal data may adversely affect the data subject, in particular because it can lead to defamation or discrimination; or
    • (g) the data subject is a child.

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Eva Lichtenberger's justification against "legitimate interest"[modifier]

As drafted, this provision could offer controllers a way to avoid many restrictions, since experience suggests that few data subjects will test reliance on this ground in court. Moreover, the broadness of the term creates legal uncertainty. This is also likely to lead to divergences in practice between Member States and therefore fail to achieve harmonisation. Points (a) to (e) already offer ample grounds for lawfulness, so "legitimate interest" should be removed as a ground for processing. The vagueness of the term "legitimate interests" would encourage controllers to try to cover as much processing as possible under this ground, even though it could be covered under other grounds, notably consent, as well. This in turn would make it harder for data subjects to enforce their rights – while consent can easily be revoked, objecting to processing based on "legitimate interest" requires more effort on part of the data subject. Having such an ill-defined term be one of the grounds for lawfulness could also contribute to legal uncertainty, as it is quite likely that interpretations by supervisory authorities and courts will differ between Member States.

LIBE members[modifier]

Seven amendments have been submited by seventeen members of LIBE, proposing to extend the 'legitimate interest' of the controller to the one of third parties (amendments 873, 874, 878, 880, 882, 883 & 884). Those seventeen MEPs are:

  • Alexander Alvaro (ALDE - Germany)
  • Nadja Hirsch (ALDE - Germany)
  • Adina-Ioana Vălean (ALDE - Romania)
  • Jens Rohde (ALDE - Denmark)
  • Louis Michel (ALDE - Belgium)
  • Axel Voss (EPP - Germany)
  • Seán Kelly (EPP - Ireland)
  • Wim van de Camp (EPP - Netherlands)
  • Véronique Mathieu Houillon (EPP - France)
  • Monika Hohlmeier (EPP - Germany)
  • Lara Comi (EPP - Italy)
  • Hubert Pirker (EPP - Austria)
  • Renate Sommer (EPP - Germany)
  • Agustín Díaz de Mera García Consuegra (EPP - Spain)
  • Teresa Jiménez-Becerril Barrio (EPP - Spain)
  • Salvatore Iacolino (EPP - Italy)
  • Edwal Stadler (NI - Austria)

IT Giants and banks' recomandations to MEPs[modifier]

  • Google (February 2012 document): 'We do note that consent is only one of several ways that the Regulation allows for the legitimate processing of personal data. Compared with the current legislative framework, however, consent has been prioritized against the ‘legitimate interests’ rule, which has heretofore controllers to process information if it does so for legitimate business interests and insofar as the processing does not affect the data subjects’ fundamental rights to privacy. Maintaining the viability of the ‘legitimate interests’ rule is important because it leaves room for organizations to process information outside explicit consent through enhanced transparency and user control.'


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Amendment proposed by eBay
Article 6
  • (f) processing is necessary for the purposes of the legitimate interests pursued by a the controller or 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.

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Amendment proposed by the European Banking Federation
Article 6
  • (f) processing is necessary for the purposes of the legitimate interests pursued by a controller, or by the third party or parties to whom the data are disclosed 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.

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Amendment proposed by Eurofinas
Article 6
  • (f) processing is necessary for the purposes of the legitimate interests pursued by a controller or by the third party or parties to whom the data are disclosed, 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.

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  • Eurocommerce (September 2012 document): 'Some businesses collect data on other businesses which is to a large extent personal data. This holds true, for example, if the information includes data on individual owners or the management of businesses. Such data collection and processing requires a legal justification and today, such justification is provided by the so-called “balance of interest clause” in Article 7 (f) of the current Directive as implemented in national laws. For example, credit information services collect data solely in the legitimate interest of third parties to whom the data are disclosed (their customers), except where such interests are overridden by the interests or fundamental rights and freedoms of the data subjects. Credit reporting agencies do not have a contractual relationship to the person on whom they collect data. Much like the directory industry, the business of credit reporting agencies is based on the interests of the recipients of the collected data, i.e. on the interest of third parties. The Proposal does not enable credit information services to rely on third party legitimate interests which are vital since it is in the benefit of their customers to receive information about the financial performance of their business partners. Without this, credit information services would only be able to rely on the legitimate interest which might not be sufficient to justify the data collection that is vital to perform their business. They would be unable to rely on other legal justifications such as consent as it would be impossible for them to collect the necessary consent declarations from all individuals involved. There is no clear justification to propose this major change to the balance of interest clause. Deleting the interests of third parties to whom the data are disclosed does not make the balance of interest clause more modern, flexible or business-friendly.'


  • ACCIS (Association of Consumer Credit Information Suppliers - December 2012 document): 'The lawfulness of processing based on the legitimate interest must be extended to legitimate interests pursued by third parties to whom the data are disclosed by a controller. To exclude this provision might compromise an essential principle of legitimacy that is very important in the market. It would be contradictory to admit this principle with reference to the controller itself but not with reference to another party (the second controller) receiving data from the former. The result would be to exclude the possibility for data suppliers to supply on a legitimate basis data to final users of such data even if the legitimate interest is recognized and justified. The limitation is not reasonable and only has the effect to limit the market without providing greater protection for data subjects. '
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Amendment proposed by ACCIS
Article 6
  • (f) processing is necessary for the purposes of the legitimate interests pursued by a controller or by the third party or parties to whom the data are disclosed, 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.

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Pseudonymous Data[modifier]

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IMCO's Opinion: amendments 61 & 75

Article 4 - Definitions
  • 3.(b) 'pseudonymous data' means any personal data that has been collected, altered or otherwise processed so that it of itself cannot be attributed to a data subject without the use of additional data which is subject to separate and distinct technical and organisational controls to ensure such non attribution, or that such attribution would require a disproportionate amount of time, expense and effort

...

Article 6 - Lawfulness of processing

  • 1. Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:
    • (a) the data subject has given consent to the processing of their personal data for one or more specific purposes;
    • ...
    • (fe) only pseudonymous data is processed.

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ITRE's Opnion: amendments 77 & 101

Article 4 - Definitions
  • (2a) 'pseudonymous data' means any personal data that has been collected, altered or otherwise processed so that it of itself cannot be attributed to a data subject without the use of additional data which is subject to separate and distinct technical and organisational controls to ensure such non attribution;

...

Article 6 - Lawfulness of processing

  • 1. Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:
    • (a) the data subject has given consent to the processing of their personal data for one or more specific purposes;
    • ...
    • (fa) processing is limited to pseudonymised data, where the data subject is adequately protected and the recipient of the service is given a right to object pursuant to Article 19 (3a).

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JURI's Opinion: amendment 36

Article 4 - Definitions
  • (3a) 'pseudonymous data' means any personal data that has been collected, altered or otherwise processed so that it of itself cannot be attributed to a data subject without the use of additional data which is subject to separate and distinct technical and organisational controls to ensure such non attribution;

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LIBE's rapporteur: amendments 85, 105 & 108

Article 4 - Definitions
  • 2.(a) 'pseudonym' means a unique identifier which is specific to one given context and which does not permit the direct identification of a natural person, but allows the singling out of a data subject;

...

Article 7 - Conditions for consent

  • 2.(a) If the data subject's consent is to be given in the context of the use of information society services where personal data are processed only in the form of pseudonyms, consent may be given by automated means using a technical standard with general validity in the Union in accordance with paragraph 4c, which allows the data subject to clearly express his or her wishes without collecting identification data.

...

  • 4.(c) The Commission shall be empowered to adopt, after requesting an opinion from the European Data Protection Board, delegated acts in accordance with Article 86 for the purpose of further specifying the requirements and conditions for technical standards referred to in paragraph 2a, and for declaring that a technical standard is in line with this Regulation and has general validity within the Union.

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Profiling[modifier]

1995 Directive

Article 15 - Automated individual decisions
  • 1. Member States shall grant the right to every person not to be subject to a decision which produces legal effects concerning him or significantly affects him and which is based solely on automated processing of data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc.
  • 2. Subject to the other Articles of this Directive, Member States shall provide that a person may be subjected to a decision of the kind referred to in paragraph 1 if that decision:
    • (a) is taken in the course of the entering into or performance of a contract, provided the request for the entering into or the performance of the contract, lodged by the data subject, has been satisfied or that there are suitable measures to safeguard his legitimate interests, such as arrangements allowing him to put his point of view; or
    • (b) is authorized by a law which also lays down measures to safeguard the data subject's legitimate interests.

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Proposed Regulation

Article 20 - Measures based on profiling
  • 1. Every natural person shall have the right not to be subject to a measure which produces legal effects concerning this natural person or significantly affects this natural person, and which is based solely on automated processing intended to evaluate certain personal aspects relating to this natural person or to analyse or predict in particular the natural person's performance at work, economic situation, location, health, personal preferences, reliability or behaviour.
  • 2. Subject to the other provisions of this Regulation, a person may be subjected to a measure of the kind referred to in paragraph 1 only if the processing:
    • (a) is carried out in the course of the entering into, or performance of, a contract, where the request for the entering into or the performance of the contract, lodged by the data subject, has been satisfied or where suitable measures to safeguard the data subject's legitimate interests have been adduced, such as the right to obtain human intervention; or
    • (b) is expressly authorized by a Union or Member State law which also lays down suitable measures to safeguard the data subject's legitimate interests; or
    • (c) is based on the data subject's consent, subject to the conditions laid down in Article 7 and to suitable safeguards.

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IMCO's Opinion: Amendments 60, 129, 130 & 131

Article 4 - Definitions

(3a) 'profiling' means any form of automated processing of personal data intended to evaluate certain personal aspects relating to a natural person or to analyse or predict in particular the natural person's performance at work, economic situation, location, health, personal preferences, reliability or behaviour;

...


Article 20 - Measures based on profiling automated processing

1. Every natural person A data subject shall have the right not to not be subject to a measure decision which produces legal effects concerning this natural person or significantly affects this natural person is unfair or discriminatory, and which is based solely on automated processing intended to evaluate certain personal aspects relating to this natural person or to analyse or predict in particular the natural person's performance at work, economic situation, location, health, personal preferences, reliability or behaviour data subject.


Amendment 131 deletes paragraph 2 as paragraph 1 has been broadened enough.

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ITRE's Opinion: Amendments 182, 183, 191, 194

Article 20 - Measures based on profiling
  • 1. Every natural person A data subject shall have the right not to be subject to a measure which produces legal effects concerning this natural person or significantly affects this natural person adversely affects this data subject, both offline and online which is based solely on automated processing of data intended to evaluate certain personal aspects relating to this natural person a data subject or to analyse or predict in particular the natural person's data subject's performance at work, economic situation, location, health, personal preferences, reliability or behaviour.

...


  • 1 (a) For the purposes of advertising, market research or tailoring telemedia, user profiles may be created using pseudonymised data, provided that the person concerned does not object. The person concerned must be informed of his/her right to object. User profiles may not be combined with data about the bearer of the pseudonym.

...


  • 2. Subject to the other provisions of this Regulation, a person may be subjected to a measure of the kind referred to in paragraph 1 only if the processing:
    • ...
    • c(a) is limited to pseudonymised data. Such pseudonymised data must not be collated with data on the bearer of the pseudonym. Art. 19 (3) [new] shall apply correspondingly.

...


  • 3. Automated processing of personal data intended to evaluate certain personal aspects relating to a natural person shall not be based solely on the special categories of personal data referred to in Article 9.

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JURI's Opinion: Amendments 86 & 87

Article 20 - Measures based on profiling
  • 1. Every natural person data subject shall have the right not to be subject to a measure which decision that produces adverse legal effects concerning this natural person or significantly adversely affects this natural person data subject, and which is based solely or predominantly on automated processing intended to evaluate certain personal aspects relating to this natural person data subject or to analyse or predict in particular the natural person's performance at work, economic situation, location, health, personal preferences, reliability or behaviour .

...


  • 2. Subject to the other provisions of this Regulation, a person data subject may be subjected subject to a decision of the kind referred to in paragraph 1 if the processing:
    • (a) is carried out in the course of the entering into, or performance of, a contract, where the request for the entering into or the performance of the contract, lodged by the data subject, has been satisfied or where suitable measures to safeguard the data subject's legitimate interests have been adduced, such as the right to obtain human intervention; or
    • (b) is expressly authorized by a Union or Member State law which also lays down suitable measures to safeguard the data subject's legitimate interests; or
    • (c) is based on the data subject's consent, subject to the conditions laid down in Article 7 and to suitable safeguards.
    • (a) is authorized by a Union or Member State law which also lays down suitable measures to safeguard the data subject's legitimate interests; or
    • (b) is lawful pursuant to points (a) to (fa) of Article 6(1) of this Regulation;
  • With due regard to Article 9, paragraph 2, profiling shall not have the effect of discriminating against individuals on the basis, for instance, of race or ethnic origin, religion or sexual orientation.

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LIBE's Amendments 158 to 165 & 1593

Article 4 - Definition

Article 20 - Measures based on Profiling

  • 1. Every natural person shall have the right not to be subject to a measure which produces legal effects concerning this natural person or significantly affects this natural person, and which is based solely on automated processing intended to evaluate certain personal aspects relating to this natural person or to analyse or predict in particular the natural person's performance at work, economic situation, location, health, personal preferences, reliability or behaviour. The processing of personal data for the purposes of profiling, including in relation to the offering of electronic information and communication services, shall only be lawful if it:
    • (a) is carried out in the course of necessary for the entering into, or performance of, a contract, where the request for the entering into or the performance of the contract, lodged by the data subject, has been satisfied, or where suitable measures to safeguard the data subject's legitimate interests have been adduced, such as the right to obtain human intervention; or
    • (b) is expressly authorized by a Union or Member State law in accordance with this Article which also lays down suitable measures to safeguard the data subject's legitimate interests;, or


  • 3. Automated processing of personal data intended to evaluate certain personal aspects 2. Profiling activities relating to a natural person shall not be based solely on include or generate any data that fall under the special categories of personal data referred to in Article 9, except when falling within the exceptions listed in Article 9(2).


  • 2a. Profiling that has the effect of discriminating against individuals on the basis of race or ethnic origin, political opinions, religion or beliefs, trade union membership, sexual orientation or gender identity, or that results in measures which have such effect, shall be prohibited.


  • 2b. Profiling shall not be used to identify or single out children.


  • 2c. Measures based on profiling which produce legal effects concerning the data subject or significantly affect the data subject shall not be based solely on automated processing.


  • 2a. In the employment sphere, the processing or use of data for the purposes of the permanent surveillance or profiling of employees, the drawing-up and dissemination of black lists of employees, the monitoring of performance or conduct or the preparation of a dismissal on grounds of illness shall be prohibited; job applicants’ data shall enjoy the same protection.

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Eva Lichtenberger's justification against profiling[modifier]

Amendment 112 proposed in JURI

Profiling can entail serious risks for data subjects. It is prone to reinforcing discriminations, making decisions less transparent and carries an unavoidable risk of wrong decisions. For these reasons, it should be tightly regulated: its use should be clearly limited, and in those cases where it can be used, there should be safeguards against discrimination and data subjects should be able to receive clear and meaningful information on the logic of the profiling and its consequences. While some circles see profiling as a panacea for many problems, it should be noted that there is a significant body of research addressing its limitations. Notably, profiling tends to be useless for very rare characteristics, due to the risk of false positives. Also, profiles can be hard or impossible to verify. Profiles are based on complex and dynamic algorithms that evolve constantly and that are hard to explain to data subjects. Often, these algorithms qualify as commercial secrets and will not be easily provided to data subjects. However, when natural persons are subject to profiling, they should be entitled to information about the logic used in the measure, as well as an explanation of the final decision if human intervention has been obtained. This helps to reduce intransparency, which could undermine trust in data processing and may lead to loss or trust in especially online services. There is also a serious risk of unreliable and (in effect) discriminatory profiles being widely used, in matters of real importance to individuals and groups, which is the motivation behind several suggested changes in this Article that aim to improve the protection of data subjects against discrimination. In relation to this, the use of sensitive data in generating profiles should also be restricted.

Data Breach[modifier]

Proposed Regulation

Article 4 - Definitions
  • 9. 'personal data breach' means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed;

...

Article 31 - Notification of a personal data breach to the supervisory authority

  • 1. In the case of a personal data breach, the controller shall without undue delay and, where feasible, not later than 24 hours after having become aware of it, notify the personal data breach to the supervisory authority. The notification to the supervisory authority shall be accompanied by a reasoned justification in cases where it is not made within 24 hours.

...

Article 32 - Communication of a personal data breach to the data subject

  • 1. When the personal data breach is likely to adversely affect the protection of the personal data or privacy of the data subject, the controller shall, after the notification referred to in Article 31, communicate the personal data breach to the data subject without undue delay.

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IMCO's Opinion: Amendments 162 & 169

Article 31 - Notification of a personal data breach to the supervisory authority
  • 1. In the case of a personal data breach, which would have a significantly adverse impact on the protection of the personal data or privacy of the data subject, the controller shall without undue delay and, where feasible, not later than 24 hours after having become aware of it, notify the personal data breach to the supervisory authority. The notification to the supervisory authority shall be accompanied by a reasoned justification in cases where it is not made within 24 hours.

...

Article 32 - Communication of a personal data breach to the data subject

  • 3. The communication of a personal data breach to the data subject shall not be required if the data breach does not have significant risk of harm to citizens and the controller demonstrates to the satisfaction of the supervisory authority that it has implemented appropriate technological protection measures, and that those measures were applied to the data concerned by the personal data breach. Such technological protection measures shall render the data unintelligible to any person who is not authorised to access it.

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ITRE's Opinion: Amendment 245 & 255

Article 31 - Notification of a personal data breach to the supervisory authority
  • 1. In the case of a personal data breach the controller shall without undue delay and, where feasible, not later than 24 hours after having become aware of it, notify the relating to special categories of personal date, personal data which are subject to professional secrecy, personal data relating to criminal offences or to the suspicion of a criminal act or personal data relating to bank or credit card accounts, which seriously threaten the rights or legitimate interests of the data subject, the controller shall without undue delay notify the personal data breach to the supervisory authority. The notification to the supervisory authority shall be accompanied by a reasoned justification in cases where it is not made within 24 hours.

...

Article 32a - Communication of a personal data breach to other organisations

  • A controller that communicates a personal data breach to a data subject pursuant to Article 32 may notify another organisation, a government institution or a part of a government institution of the personal data breach if that organisation, government institution or part of a government institution may be able to reduce the risk of harm that could result from it or mitigate that harm. Such notifications may be done without informing the data subject if the disclosure is made solely for the purposes of reducing the risk of harm to the data subject that could result from the breach or mitigating that harm.

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JURI's Opinion: Amendment 111

Article 31 - Notification of a personal data breach to the supervisory authority
  • 1. In the case of a personal data breach which has a considerable effect on the data subject, , the controller shall, without undue delay and, where feasible, not later than 24 hours after having become aware of it, notify the personal data breach to the supervisory authority. The notification to the supervisory authority shall be accompanied by a reasoned justification in cases where it is not made within 24 hours.

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LIBE's Rapporteur: Amendment 48

Article 31 - Notification of a personal data breach to the supervisory authority
  • 1. In the case of a personal data breach which has a considerable effect on the data subject, the controller shall, without undue delay and, where feasible, not later than 24 hours after having become aware of it, notify the personal data breach to the supervisory authority. The notification to the supervisory authority shall be accompanied by a reasoned justification in cases where it is not made within 24 hours.


Justification: In the event of a breach, the controller must initially concentrate on putting into practice all appropriate measures to prevent it continuing. An obligation to notify the competent supervisory authority within 24 hours together with sanctions for failing to do so might have the opposite effect. In addition, as the Article 29 Working Party stated in its opinion of 23 March 2012, notification must not concern minor breaches, as otherwise the supervisory authorities would be over-burdened.

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Transfer to third countries[modifier]

1995 Directive

Article 25 - Principles
  • 1. The Member States shall provide that the transfer to a third country of personal data which are undergoing processing or are intended for processing after transfer may take place only if, without prejudice to compliance with the national provisions adopted pursuant to the other provisions of this Directive, the third country in question ensures an adequate level of protection.

[...]

Article 26 - Derogations

  • 1. By way of derogation from Article 25 and save where otherwise provided by domestic law governing particular cases, Member States shall provide that a transfer or a set of transfers of personal data to a third country which does not ensure an adequate level of protection within the meaning of Article 25 (2) may take place on condition that:
    • (a) the data subject has given his consent unambiguously to the proposed transfer; or
    • (b) the transfer is necessary for the performance of a contract between the data subject and the controller or the implementation of precontractual measures taken in response to the data subject's request; or
    • (c) the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the data subject between the controller and a third party; or
    • (d) the transfer is necessary or legally required on important public interest grounds, or for the establishment, exercise or defence of legal claims; or
    • (e) the transfer is necessary in order to protect the vital interests of the data subject; or
    • (f) the transfer is made from a register which according to laws or regulations is intended to provide information to the public and which is open to consultation either by the public in general or by any person who can demonstrate legitimate interest, to the extent that the conditions laid down in law for consultation are fulfilled in the particular case.
  • 2. Without prejudice to paragraph 1, a Member State may authorize a transfer or a set of transfers of personal data to a third country which does not ensure an adequate level of protection within the meaning of Article 25 (2), where the controller adduces adequate safeguards with respect to the protection of the privacy and fundamental rights and freedoms of individuals and as regards the exercise of the corresponding rights; such safeguards may in particular result from appropriate contractual clauses.

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Proposal

Article 41 - Transfers with an adequacy decision
  • 1. A transfer may take place where the Commission has decided that the third country, or a territory or a processing sector within that third country, or the international organisation in question ensures an adequate level of protection. Such transfer shall not require any further authorisation.

[...]


Article 42 - Transfers by way of appropriate safeguards

  • 1. Where the Commission has taken no decision pursuant to Article 41, a controller or processor may transfer personal data to a third country or an international organisation only if the controller or processor has adduced appropriate safeguards with respect to the protection of personal data in a legally binding instrument.
  • 2. The appropriate safeguards referred to in paragraph 1 shall be provided for, in particular, by:
    • (a) binding corporate rules in accordance with Article 43; or
    • (b) standard data protection clauses adopted by the Commission. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2); or
    • (c) standard data protection clauses adopted by a supervisory authority in accordance with the consistency mechanism referred to in Article 57 when declared generally valid by the Commission pursuant to point (b) of Article 62(1); or
    • (d) contractual clauses between the controller or processor and the recipient of the data authorised by a supervisory authority in accordance with paragraph 4.

[...]

  • 5. Where the appropriate safeguards with respect to the protection of personal data are not provided for in a legally binding instrument, the controller or processor shall obtain prior authorisation for the transfer, or a set of transfers, or for provisions to be inserted into administrative arrangements providing the basis for such transfer. [...]


Article 43 - Transfers by way of binding corporate rules

  • 1. A supervisory authority shall in accordance with the consistency mechanism set out in Article 58 approve binding corporate rules, provided that they:
    • (a) are legally binding and apply to and are enforced by every member within the controller’s or processor's group of undertakings, and include their employees;
    • (b) expressly confer enforceable rights on data subjects;
    • (c) fulfil the requirements laid down in paragraph 2.

[...]


Article 44 - Derogations

  • 1. In the absence of an adequacy decision pursuant to Article 41 or of appropriate safeguards pursuant to Article 42, a transfer or a set of transfers of personal data to a third country or an international organisation may take place only on condition that:
    • (a) the data subject has consented to the proposed transfer, after having been informed of the risks of such transfers due to the absence of an adequacy decision and appropriate safeguards; or
    • (b) the transfer is necessary for the performance of a contract between the data subject and the controller or the implementation of pre-contractual measures taken at the data subject's request; or
    • (c) the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the data subject between the controller and another natural or legal person; or
    • (d) the transfer is necessary for important grounds of public interest; or
    • (e) the transfer is necessary for the establishment, exercise or defence of legal claims; or
    • (f) the transfer is necessary in order to protect the vital interests of the data subject or of another person, where the data subject is physically or legally incapable of giving consent; or
    • (g) the transfer is made from a register which according to Union or Member State law is intended to provide information to the public and which is open to consultation either by the public in general or by any person who can demonstrate legitimate interest, to the extent that the conditions laid down in Union or Member State law for consultation are fulfilled in the particular case; or
    • (h) the transfer is necessary for the purposes of the legitimate interests pursued by the controller or the processor, which cannot be qualified as frequent or massive, and where the controller or processor has assessed all the circumstances surrounding the data transfer operation or the set of data transfer operations and based on this assessment adduced appropriate safeguards with respect to the protection of personal data, where necessary.
[...]

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Previous version of the Proposal (Version 56 - 29/11/2011)

Article 42 - Disclosures not authorized by Union law
  • 1. No judgment of a court or tribunal and no decision of an administrative authority of a third country requiring a controller or processor to disclose personal data shall be recognized or be enforceable in any manner, without prejudice to a mutual assistance treaty or an international agreement in force between the requesting third country and the Union or a Member State.
  • 2. Where a judgment of a court or tribunal or a decision of an administrative authority of a third country requests a controller or processor to disclose personal data, the controller or processor and, if any, the controller's representative, shall notify the supervisory authority of the request without undue delay and must obtain prior authorisation for the transfer by the supervisory authority in accordance with point (b) of Article 31(1).
[...]

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IMCO's Opinion: Amendment 192

Artcile 44 - Derogations
  • 1. In the absence of an adequacy decision pursuant to Article 41 or of appropriate safeguards pursuant to Article 42, a transfer or a set of transfers of personal data to a third country or an international organisation may take place only on condition that:
    • ...
    • (h) the transfer is necessary for the purposes of the legitimate interests pursued by the controller or the processor, which cannot be qualified as frequent or massive or where, prior to such transfer, the personal data is already made public in the third country, and where the controller or processor has assessed all the circumstances surrounding the data transfer operation or the set of data transfer operations and based on this assessment adduced appropriate safeguards with respect to the protection of personal data, where necessary.

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ITRE's Opinion: Amendments 267, 268 & 318

Article 34 - Prior authorisation and prior consultation
  • 1. The controller or the processor as the case may be shall obtain an authorisation from the supervisory authority prior to the processing of personal data, in order to ensure the compliance of the intended processing with this Regulation and in particular to mitigate the risks involved for the data subjects where a controller or processor adopts contractual clauses as provided for in point (d) of Article 42(2) or does not provide for the appropriate safeguards in a legally binding instrument as referred to in Article 42(5) for the transfer of personal data to a third country or an international organisation.

...

Article 44 - Derogations

  • 1. In the absence of an adequacy decision pursuant to Article 41 or of appropriate safeguards pursuant to Article 42, a transfer or a set of transfers of personal data to a third country or an international organisation may take place only on condition that:
    • ...
    • (h) the transfer is necessary for the purposes of the legitimate interests pursued by the controller or the processor, which cannot be qualified as frequent or massive, and where the controller or processor has assessed all the circumstances surrounding the data transfer operation or the set of data transfer operations and based on this assessment adduced appropriate safeguards with respect to the protection of personal data, where necessary.

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LIBE's Rapporteur: Amendment 259

Article 43 - Transfers not authorised by Union law
  • 1. Any judgments of a court or tribunal or any decision of an administrative authority of a third country requiring a controller or processor to transfer personal data shall only be recognised or be enforceable on the basis of, and in accordance with, a mutual assistance treaty or an international agreement in force between the requesting third country and the Union or a Member State.
  • 2. Where a judgment of a court or tribunal or a decision of an administrative authority of a third country requests a controller or processor to disclose personal data, the controller or processor and, if any, the controller's representative, shall notify the competent supervisory authority of the request without undue delay and shall obtain prior authorisation for the transfer by the supervisory authority in accordance with Article 34(1).
[...]

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Sanctions[modifier]

1995 Directive

Article 24 - Sanctions
  • The Member States shall adopt suitable measures to ensure the full implementation of the provisions of this Directive and shall in particular lay down the sanctions to be imposed in

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Proposal

Article 79 - Administrative sanctions
  • 1. Each supervisory authority shall be empowered to impose administrative sanctions in accordance with this Article.
  • 2. The administrative sanction shall be in each individual case effective, proportionate and dissuasive. The amount of the administrative fine shall be fixed with due regard to the nature, gravity and duration of the breach, the intentional or negligent character of the infringement, the degree of responsibility of the natural or legal person and of previous breaches by this person, the technical and organisational measures and procedures implemented pursuant to Article 23 and the degree of co-operation with the supervisory authority in order to remedy the breach.
  • 3. In case of a first and non-intentional non-compliance with this Regulation, a warning in writing may be given and no sanction imposed, where:
    • a. a natural person is processing personal data without a commercial interest; or
    • b. an enterprise or an organisation employing fewer than 250 persons is processing personal data only as an activity ancillary to its main activities.
  • 4. The supervisory authority shall impose a fine up to 250 000 EUR, or in case of an enterprise up to 0,5 % of its annual worldwide turnover, to anyone who, intentionally or negligently:
    • a. does not provide the mechanisms for requests by data subjects or does not respond promptly or not in the required format to data subjects pursuant to Articles 12(1) and (2);
    • b. charges a fee for the information or for responses to the requests of data subjects in violation of Article 12(4).
  • 5. The supervisory authority shall impose a fine up to 500 000 EUR, or in case of an enterprise up to 1 % of its annual worldwide turnover, to anyone who, intentionally or negligently:
    • a. does not provide the information, or does provide incomplete information, or does not provide the information in a sufficiently transparent manner, to the data subject pursuant to Article 11, Article 12(3) and Article 14;
    • b. does not provide access for the data subject or does not rectify personal data pursuant to Articles 15 and 16 or does not communicate the relevant information to a recipient pursuant to Article 13;
    • c. does not comply with the right to be forgotten or to erasure, or fails to put mechanisms in place to ensure that the time limits are observed or does not take all necessary steps to inform third parties that a data subjects requests to erase any links to, or copy or replication of the personal data pursuant Article 17;
    • d. does not provide a copy of the personal data in electronic format or hinders the data subject to transmit the personal data to another application in violation of Article 18;
    • e. does not or not sufficiently determine the respective responsibilities with co-controllers pursuant to Article 24;
    • f. does not or not sufficiently maintain the documentation pursuant to Article 28, Article 31(4), and Article 44(3);
    • g. does not comply, in cases where special categories of data are not involved, pursuant to Articles 80, 82 and 83 with rules in relation to freedom of expression or with rules on the processing in the employment context or with the conditions for processing for historical, statistical and scientific research purposes.
  • 6. The supervisory authority shall impose a fine up to 1 000 000 EUR or, in case of an enterprise up to 2 % of its annual worldwide turnover, to anyone who, intentionally or negligently:
    • a. processes personal data without any or sufficient legal basis for the processing or does not comply with the conditions for consent pursuant to Articles 6, 7 and 8;
    • b. processes special categories of data in violation of Articles 9 and 81;
    • c. does not comply with an objection or the requirement pursuant to Article 19;
    • d. does not comply with the conditions in relation to measures based on profiling pursuant to Article 20;
    • e. does not adopt internal policies or does not implement appropriate measures for ensuring and demonstrating compliance pursuant to Articles 22, 23 and 30;
    • f. does not designate a representative pursuant to Article 25;
    • g. processes or instructs the processing of personal data in violation of the obligations in relation to processing on behalf of a controller pursuant to Articles 26 and 27;
    • h. does not alert on or notify a personal data breach or does not timely or completely notify the data breach to the supervisory authority or to the data subject pursuant to Articles 31 and 32;
    • i. does not carry out a data protection impact assessment pursuant or processes personal data without prior authorisation or prior consultation of the supervisory authority pursuant to Articles 33 and 34;
    • j. does not designate a data protection officer or does not ensure the conditions for fulfilling the tasks pursuant to Articles 35, 36 and 37;
    • k. misuses a data protection seal or mark in the meaning of Article 39;
    • l. carries out or instructs a data transfer to a third country or an international organisation that is not allowed by an adequacy decision or by appropriate safeguards or by a derogation pursuant to Articles 40 to 44;
    • m. does not comply with an order or a temporary or definite ban on processing or the suspension of data flows by the supervisory authority pursuant to Article 53(1);
    • n. does not comply with the obligations to assist or respond or provide relevant information to, or access to premises by, the supervisory authority pursuant to Article 28(3), Article 29, Article 34(6) and Article 53(2);
    • o. does not comply with the rules for safeguarding professional secrecy pursuant to Article 84.
  • 7. The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of updating the amounts of the administrative fines referred to in paragraphs 4, 5 and 6, taking into account the criteria referred to in paragraph 2.

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IMCO's Opinion: Amendments 208, 209 & 210

Points 4, 5 & 6 of Article 79 are deleted.

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ITRE's Opinion: Amendments 370 to 397

Article 79 - Administrative sanctions
  • 3. In case of a first and non-intentional non-compliance with this Regulation, a warning in writing may be given and no sanction imposed, where:
    • (a) a natural person is processing personal data without a commercial interest; or
    • (b) an enterprise or an organisation employing fewer than 250 persons is processing personal data only as an activity ancillary to its main activities.


  • 3. The supervisory authority may give a written warning without imposing a sanction. The supervisory authority may impose a fine of up to EUR 1 000 000 for repeated, deliberate breaches or, in the case of a company, of up to 1% of its annual worldwide turnover.


Points 4, 5 & 6 of Article 79 are deleted.

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JURI's Opinion: Amendments 178 & 180

Article 79 - Administrative sanctions
  • 2a. The supervisory authority may give a written warning without imposing a sanction. The supervisory authority may impose a fine of up to EUR 1 000 000 for repeated, deliberate breaches or, in the case of a company, of up to 2 % of its annual worldwide turnover.


Points 4, 5 & 6 of Article 79 are deleted.

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Data subjects' rights[modifier]

1995 Directive

Article 10 - Information in cases of collection of data from the data subject
  • 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.

Article 11 - Information where the data have not been obtained from the data subject

  • 1. Where the data have not been obtained from the data subject, Member States shall provide that the controller or his representative must at the time of undertaking the recording of personal data or if a disclosure to a third party is envisaged, no later than the time when the data are first disclosed provide the data subject 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;
    • (c) any further information such as
      • - the categories of data concerned,
      • - the recipients or categories of recipients,
      • - 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 processed, to guarantee fair processing in respect of the data subject.
  • 2. Paragraph 1 shall not apply where, in particular for processing for statistical purposes or for the purposes of historical or scientific research, the provision of such information proves impossible or would involve a disproportionate effort or if recording or disclosure is expressly laid down by law. In these cases Member States shall provide appropriate safeguards.


Article 12 - Right of access

  • Member States shall guarantee every data subject the right to obtain from the controller:
    • (a) without constraint at reasonable intervals and without excessive delay or expense:
      • - confirmation as to whether or not data relating to him are being processed and information at least as to the purposes of the processing, the categories of data concerned, and the recipients or categories of recipients to whom the data are disclosed,
      • - communication to him in an intelligible form of the data undergoing processing and of any available information as to their source,
      • - knowledge of the logic involved in any automatic processing of data concerning him at least in the case of the automated decisions referred to in Article 15 (1);
    • (b) as appropriate the rectification, erasure or blocking of data the processing of which does not comply with the provisions of this Directive, in particular because of the incomplete or inaccurate nature of the data;
    • (c) notification to third parties to whom the data have been disclosed of any rectification, erasure or blocking carried out in compliance with (b), unless this proves impossible or involves a disproportionate effort.


...


Article 14 - The data subject's right to object

  • Member States shall grant the data subject the right:
    • (a) at least in the cases referred to in Article 7 (e) and (f), to object at any time on compelling legitimate grounds relating to his particular situation to the processing of data relating to him, save where otherwise provided by national legislation. Where there is a justified objection, the processing instigated by the controller may no longer involve those data;
    • (b) to object, on request and free of charge, to the processing of personal data relating to him which the controller anticipates being processed for the purposes of direct marketing, or to be informed before personal data are disclosed for the first time to third parties or used on their behalf for the purposes of direct marketing, and to be expressly offered the right to object free of charge to such disclosures or uses.
    • Member States shall take the necessary measures to ensure that data subjects are aware of the existence of the right referred to in the first subparagraph of (b).

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Proposal

Article 12 - Procedures and mechanisms for exercising the rights of the data subject
  • 1. The controller shall establish procedures for providing the information referred to in Article 14 and for the exercise of the rights of data subjects referred to in Article 13 and Articles 15 to 19. The controller shall provide in particular mechanisms for facilitating the request for the actions referred to in Article 13 and Articles 15 to 19. Where personal data are processed by automated means, the controller shall also provide means for requests to be made electronically.
  • 2. The controller shall inform the data subject without delay and, at the latest within one month of receipt of the request, whether or not any action has been taken pursuant to Article 13 and Articles 15 to 19 and shall provide the requested information. This period may be prolonged for a further month, if several data subjects exercise their rights and their cooperation is necessary to a reasonable extent to prevent an unnecessary and disproportionate effort on the part of the controller. The information shall be given in writing. Where the data subject makes the request in electronic form, the information shall be provided in electronic form, unless otherwise requested by the data subject.
  • 3. If the controller refuses to take action on the request of the data subject, the controller shall inform the data subject of the reasons for the refusal and on the possibilities of lodging a complaint to the supervisory authority and seeking a judicial remedy.
  • 4. The information and the actions taken on requests referred to in paragraph 1 shall be free of charge. Where requests are manifestly excessive, in particular because of their repetitive character, the controller may charge a fee for providing the information or taking the action requested, or the controller may not take the action requested. In that case, the controller shall bear the burden of proving the manifestly excessive character of the request.

[...]


Article 13 - Rights in relation to recipients

The controller shall communicate any rectification or erasure carried out in accordance with Articles 16 and 17 to each recipient to whom the data have been disclosed, unless this proves impossible or involves a disproportionate effort.


Article 14 - Information to the data subject

  • 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.

[...]


Article 15 - Right of access for the data subject

  • 1. The data subject shall have the right to obtain from the controller at any time, on request, confirmation as to whether or not personal data relating to the data subject are being processed. Where such personal data are being processed, the controller shall provide the following information:
    • (a) the purposes of the processing;
    • (b) the categories of personal data concerned;
    • (c) the recipients or categories of recipients to whom the personal data are to be or have been disclosed, in particular to recipients in third countries;
    • (d) the period for which the personal data will be stored;
    • (e) the existence of the right to request from the controller rectification or erasure of personal data concerning the data subject or to object to the processing of such personal data;
    • (f) the right to lodge a complaint to the supervisory authority and the contact details of the supervisory authority;
    • (g) communication of the personal data undergoing processing and of any available information as to their source;
    • (h) the significance and envisaged consequences of such processing, at least in the case of measures referred to in Article 20.
  • 2. The data subject shall have the right to obtain from the controller communication of the personal data undergoing processing. Where the data subject makes the request in electronic form, the information shall be provided in electronic form, unless otherwise requested by the data subject.

[...]


Article 16 - Right to rectification

The data subject shall have the right to obtain from the controller the rectification of personal data relating to them which are inaccurate. The data subject shall have the right to obtain completion of incomplete personal data, including by way of supplementing a corrective statement.


Article 17 - Right to be forgotten and to erasure

  • 1. The data subject shall have the right to obtain from the controller the erasure of personal data relating to them and the abstention from further dissemination of such data, especially in relation to personal data which are made available by the data subject while he or she was a child, where one of the following grounds applies:
    • (a) the data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;
    • (b) the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or when the storage period consented to has expired, and where there is no other legal ground for the processing of the data;
    • (c) the data subject objects to the processing of personal data pursuant to Article 19;
    • (d) the processing of the data does not comply with this Regulation for other reasons.
  • 2. Where the controller referred to in paragraph 1 has made the personal data public, it shall take all reasonable steps, including technical measures, in relation to data for the publication of which the controller is responsible, to inform third parties which are processing such data, that a data subject requests them to erase any links to, or copy or replication of that personal data. Where the controller has authorised a third party publication of personal data, the controller shall be considered responsible for that publication.

[...]


Article 18 - Right to data portability

  • 1. The data subject shall have the right, where personal data are processed by electronic means and in a structured and commonly used format, to obtain from the controller a copy of data undergoing processing in an electronic and structured format which is commonly used and allows for further use by the data subject.
  • 2. Where the data subject has provided the personal data and the processing is based on consent or on a contract, the data subject shall have the right to transmit those personal data and any other information provided by the data subject and retained by an automated processing system, into another one, in an electronic format which is commonly used, without hindrance from the controller from whom the personal data are withdrawn.

[...]


Article 19 - Right to object

  • 1. The data subject shall have the right to object, on grounds relating to their particular situation, at any time to the processing of personal data which is based on points (d), (e) and (f) of Article 6(1), unless the controller demonstrates compelling legitimate grounds for the processing which override the interests or fundamental rights and freedoms of the data subject.
  • 2. Where personal data are processed for direct marketing purposes, the data subject shall have the right to object free of charge to the processing of their personal data for such marketing. This right shall be explicitly offered to the data subject in an intelligible manner and shall be clearly distinguishable from other information.
  • 3. Where an objection is upheld pursuant to paragraphs 1 and 2, the controller shall no longer use or otherwise process the personal data concerned.

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ITRE's Opinion: Amendment 134

Article 12 - Procedures and mechanisms for exercising the rights of the data subject
  • 4. The information and the actions taken on requests referred to in paragraph 1 shall be free of charge. Where requests are manifestly excessive, in particular because of owing to their high volume, complexity or their repetitive character, the controller may charge a an appropriate, not for profit, fee for providing the information or taking the action requested, or the controller may not decline to take the action requested. In that case, the controller shall bear the burden of proving the manifestly excessive character of the request.

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JURI's Opinion: Amendments 64, 79 & 81

Article 12 - Procedures and mechanisms for exercising the rights of the data subject
  • 4. The information and the actions taken on requests referred to in paragraph 1 shall be free of charge. Where requests are manifestly excessive, in particular because of owing to their high volume, complexity or their repetitive character, the controller may charge a an appropriate, not for profit, fee for providing the information or taking the action requested, or the controller may not decline to take the action requested. In that case, the controller shall bear the burden of proving the manifestly excessive character of the request.


...


Article 17 - Right to be forgotten and to erasure

  • 1a. Credit institutions that retain data for the following grounds shall be exempt from the requirements of this Article:
    • - risk management purposes;
    • - fulfilment of EU and international supervisory and compliance requirements;
    • - market abuse purposes.


...


  • 3. The controller shall carry out the erasure without delay, except to the extent that the retention of the personal data is necessary:
    • (a) for exercising the right of freedom of expression in accordance with Article 80 or when providing an information society service to facilitate the accessing of such expression;

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Complaints[modifier]

1995 Directive

Article 28 - Supervisory authority
  • ...
  • 4. Each supervisory authority shall hear claims lodged by any person, or by an association representing that person, concerning the protection of his rights and freedoms in regard to the processing of personal data. The person concerned shall be informed of the outcome of the claim.
  • Each supervisory authority shall, in particular, hear claims for checks on the lawfulness of data processing lodged by any person when the national provisions adopted pursuant to Article 13 of this Directive apply. The person shall at any rate be informed that a check has taken place.
  • ...

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Proposal

Article 73 - Right to lodge a complaint with a supervisory authority
  • 1. Without prejudice to any other administrative or judicial remedy, every data subject shall have the right to lodge a complaint with a supervisory authority in any Member State if they consider that the processing of personal data relating to them does not comply with this Regulation.
  • 2. Any body, organisation or association which aims to protect data subjects’ rights and interests concerning the protection of their personal data and has been properly constituted according to the law of a Member State shall have the right to lodge a complaint with a supervisory authority in any Member State on behalf of one or more data subjects if it considers that a data subject’s rights under this Regulation have been infringed as a result of the processing of personal data.
  • 3. Independently of a data subject's complaint, any body, organisation or association referred to in paragraph 2 shall have the right to lodge a complaint with a supervisory authority in any Member State, if it considers that a personal data breach has occurred.


Article 74 - Right to a judicial remedy against a supervisory authority

  • 1. Each natural or legal person shall have the right to a judicial remedy against decisions of a supervisory authority concerning them.
  • 2. Each data subject shall have the right to a judicial remedy obliging the supervisory authority to act on a complaint in the absence of a decision necessary to protect their rights, or where the supervisory authority does not inform the data subject within three months on the progress or outcome of the complaint pursuant to point (b) of Article 52(1).
  • 3. Proceedings against a supervisory authority shall be brought before the courts of the Member State where the supervisory authority is established.
  • 4. A data subject which is concerned by a decision of a supervisory authority in another Member State than where the data subject has its habitual residence, may request the supervisory authority of the Member State where it has its habitual residence to bring proceedings on its behalf against the competent supervisory authority in the other Member State.

[...]


Article 75 - Right to a judicial remedy against a controller or processor

  • 1. Without prejudice to any available administrative remedy, including the right to lodge a complaint with a supervisory authority as referred to in Article 73, every natural person shall have the right to a judicial remedy if they consider that their rights under this Regulation have been infringed as a result of the processing of their personal data in non-compliance with this Regulation.
  • 2. Proceedings against a controller or a processor shall be brought before the courts of the Member State where the controller or processor has an establishment. Alternatively, such proceedings may be brought before the courts of the Member State where the data subject has its habitual residence, unless the controller is a public authority acting in the exercise of its public powers.

[...]


Article 76 - Common rules for court proceedings

  • 1. Any body, organisation or association referred to in Article 73(2) shall have the right to exercise the rights referred to in Articles 74 and 75 on behalf of one or more data subjects.
[...]

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How to read an amendment: added to the initial text / deleted from the initial text

IMCO's Opinion: Amendment 198 & 200

Article 73 - Right to lodge a complaint with a supervisory authority
  • 2. Any body, organisation or association which aims to protect data subjects’ rights and interests concerning the protection of their personal data and has been properly constituted according to the law of a Member State shall have the right to lodge a complaint with a supervisory authority in any Member State on behalf of one or more data subjects if it considers that a data subject’s rights under this Regulation have been infringed as a result of the processing of personal data.

...


Article 74 - Right to a judicial remedy against a supervisory authority

  • 4. A data subject which is concerned by a decision of a supervisory authority in another Member State than where the data subject has its habitual residence, may request the supervisory authority of the Member State where it has its habitual residence to bring proceedings on its behalf against the competent supervisory authority in the other Member State.

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How to read an amendment: added to the initial text / deleted from the initial text

ITRE's Opinion: Amendment 360

Article 73 - Right to lodge a complaint with a supervisory authority
  • 2. Any body, organisation or association which aims to protect data subjects’ rights and interests concerning the protection of their personal data and has been properly constituted according to the law of a Member State shall have the right to lodge a complaint with a supervisory authority in any Member State on behalf of one or more data subjects from among its membership if it considers that a data subject’s rights under this Regulation have been infringed as a result of the processing of personal data and it has minimum funding of EUR 80 000 and representative membership with a corresponding membership structure.

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JURI's Opinion: Amendments 170, 172 & 174

Article 74 - Right to a judicial remedy against a supervisory authority
  • 3. Independently of a data subject's complaint, any body, organisation or association referred to in paragraph 2 shall have the right to lodge a complaint with a supervisory authority in any Member State, if it considers that a personal data breach has occurred.
  • 4. A data subject which is concerned by a decision of a supervisory authority in another Member State than where the data subject has its habitual residence, may request the supervisory authority of the Member State where it has its habitual residence to bring proceedings on its behalf against the competent supervisory authority in the other Member State.

...


Article 76 - Common rules for court proceedings

  • 1. Any body, organisation or association referred to in Article 73(2) shall have the right to exercise the rights referred to in Articles 74 and 75 on behalf of one or more data subjects.

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