Chapter 9: Rights of data subjects – Unlocking the EU General Data Protection Regulation
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Why does this topic matter to organisations?
EU data protection law provides data subjects with a wide array of rights that can be enforced against organisations that process personal data. These rights may limit the ability of organisations to lawfully process the personal data of data subjects, and in some cases these rights can have a significant impact upon an organisation's business model.
What types of organisations are most affected?
All organisations that act as controllers are directly affected by the rights afforded to data subjects. Organisations that act as processors are affected to a lesser degree, but should still be aware of these rights.
What should organisations do to comply?
The GDPR expanded the set of rights provided in the Directive, and created several entirely new rights. Organisations need to:
- review these rights and ensure that they properly understand the business impact of each such right;
- review their communication and information material to ensure that it clearly states all necessary information; and
- ensure that effective systems are in place to enable the organisation to give effect to these rights.
Icons to convey information quickly
The following icons are used in the table, to clarify the impact of each change:
Under the GDPR, the position on this issue has materially changed (e.g., the GDPR has introduced a new obligation that did not previously exist). |
Under the GDPR, the position on this issue has not materially changed (e.g., although the wording may be different in the GDPR, the nature of the relevant obligation is unchanged). |
The impact of the GDPR on this issue is likely positive for most organisations (e.g., because the GDPR provides certainty in relation to a previously unclear issue). |
The impact of the GDPR on this issue is likely neutral for most organisations (e.g., because the requirements under the GDPR and the Directive are essentially the same). |
The impact of the GDPR on this issue is likely negative for most organisations (e.g., because the GDPR introduced a new obligation on organisations). |
The impact of the GDPR on this issue is unknown at this stage (e.g., because the impact on organisations is dependent upon secondary guidance that has not yet been written). |
Issue | The Directive | The GDPR | Impact |
Transparent communication In order to ensure that personal data are processed fairly, EU data protection law obliges controllers to communicate transparently with data subjects regarding the processing of their personal data. |
Rec.38, 40; Art.10 The Directive obliged controllers to provide certain minimum information to data subjects, regarding the collection and further processing of their personal data. |
Rec.39, 58, 60; Art.5(1)(a), 12-14 In order to ensure that personal data are processed fairly and lawfully, controllers must provide certain minimum information to data subjects, regarding the collection and further processing of their personal data. Such information must be provided in a concise, transparent, intelligible and easily accessible form, using clear and plain language. Any information provided to children should be in such a clear and plain language that the child can easily understand. |
Although the language in the GDPR differs from that in the Directive, national DPAs in Member States consistently interpreted the Directive in a similar vein, requiring controllers to provide information that is transparent, concise, etc. Consequently, the practical impact of this change is fairly limited. The information given to the data subject should not consist of privacy policies that are excessively lengthy or difficult to understand. |
Rights of data subjects Controllers are obliged to give effect to the rights of data subjects under EU data protection law. |
N/A The Directive did not directly oblige controllers to give effect to the rights of data subjects (although this was implied). |
Rec.59; Art.12(2) Controllers have a legal obligation to give effect to the rights of data subjects. |
In effect, controllers were required to give effect to the rights of data subjects under the Directive. The GDPR merely formalised the de facto position under the Directive. |
Identifying data subjects Third parties might attempt to exercise a data subject's rights without proper authorisation to do so. Controllers are therefore permitted to ask data subjects to provide proof of their identity before giving effect to their rights. |
N/A The Directive did not directly address the need to confirm the identity of data subjects (although this is something the national laws of many Member States addressed). |
Rec.57, 64; Art.12(2), (6) The controller must not refuse to give effect to the rights of a data subject unless the controller cannot identify the data subject. The controller must use all reasonable efforts to verify the identity of data subjects. Where the controller has reasonable doubts as to the identity of the data subject, the controller may request the provision of additional information necessary to confirm the identity of the data subject, but is not required to do so (see the row immediately below). |
The GDPR explicitly enables controllers to require data subjects to provide proof of identity before giving effect to their rights. This helps to limit the risk that third parties gain unlawful access to personal data. However, the GDPR does not oblige controllers to seek out information to identify data subjects (see the row immediately below). |
Exemption where the controller cannot identify the data subject If the controller cannot identify the data subject, the controller is exempt from the application of certain rights of that data subject. |
N/A The Directive did not directly address the circumstances in which a controller could not identify data subjects. |
Rec.57; Art.11, 12(2) To the extent that the controller can demonstrate that it is not in a position to identify the data subject, the controller is exempt from the application of the rights of data subjects in Art.15-22. The controller is also not obliged to obtain further personal data in order to link data in its possession to a data subject. |
Under the GDPR the controller is exempt from its obligation to comply with certain rights of data subjects if it cannot identify which data in its possession relate to the relevant data subject. |
Time limits for complying with the rights of data subjects Controllers are obliged to give effect to the rights of data subjects within specified time periods, in order to avoid the frustration of those rights through excessive delays. |
N/A The Directive did not specify time limits for compliance with the rights of data subjects. However, the time limits could be specified under national law. |
Rec.59; Art.12(3)-(4) A controller must, within one month of receiving a request made under those rights, provide any requested information in relation to any of the rights of data subjects. If the controller fails to meet this deadline, the data subject may complain to the relevant DPA and may seek a judicial remedy. Where a controller receives large numbers of requests, or especially complex requests, the time limit may be extended by a maximum of two further months. |
The introduction of specified time limits under the GDPR results in more onerous compliance obligations for controllers. |
Right to basic information A core principle of EU data protection law is that data subjects should be entitled to a minimum set of information concerning the purposes for which their personal data will be processed. |
Rec.38; Art.10, 11 Data subjects had the right to be provided with information on the identity of the controller, the controller's reasons for processing their personal data and other relevant information necessary to ensure the fair processing of personal data. |
Rec.58, 60; Art.13-14 Data subjects have the right to be provided with information on the identity of the controller, the reasons for processing their personal data and other relevant information necessary to ensure the fair and transparent processing of personal data. |
The GDPR largely preserves the position as it stood under the Directive—the requirement to ensure transparency was implied in the Directive. Organisations remain obliged to provide basic information to individuals. |
Right of access In order to allow data subjects to enforce their data protection rights, EU data protection law obliges controllers to provide data subjects with access to their personal data. |
Rec.27, 41-44; Art.12(a) Data subjects had the right to obtain:
|
Rec.63; Art.15 Data subjects have the right to obtain the following:
Additionally, data subjects may request a copy of the personal data being processed. |
The GDPR has expanded the mandatory categories of information which must be supplied in connection with a data subject access request. Such requests place an even greater administrative burden on organisations than that experienced under the Directive. The GDPR notes that the exercise of the right of access by data subjects should not adversely affect an organisation's intellectual property (i.e., giving effect to the right of access should not require the disclosure of trade secrets, etc.). This was also the case under the Directive. However, cases in which trade secrets and other intellectual property rights fall within the scope of the right of access are likely to be rare. |
Fees in respect of access requests In order to dissuade data subjects from making vexatious requests, data controllers are permitted to charge a small fee for each such request. |
Art.12(a) The right of access had to be provided without excessive delay or expense. It was up to Member States to determine any maximum fee, but generally the maximum was very low (e.g., the UK had a maximum of £10 per request). |
Rec. 59; Art.12(5), 15(3), (4) The controller must give effect to the rights of access, rectification, erasure and the right to object, free of charge. The controller may charge a reasonable fee for "repetitive requests", "manifestly unfounded or excessive requests" or "further copies". |
The Directive permitted controllers to charge a small fee for certain functions (e.g., responding to the right of access). This acted as a buffer against spurious requests. The GDPR does not permit such charges in most cases. There is, therefore, an elevated risk that individuals will attempt to exercise these rights merely because they can, or as a cheap but effective means of protest against an organisation. |
Right of rectification Data subjects are entitled to require a controller to rectify any errors in their personal data. |
Art.6(1)(d), 12(b) Controllers had to ensure that inaccurate or incomplete data were erased or rectified. Data subjects had the right to have personal data rectified where the controller failed to comply with the Directive (especially where the data are inaccurate or incomplete). |
Rec.39, 59, 65, 73; Art.5(1)(d), 16 Controllers must ensure that inaccurate or incomplete data are erased or rectified. Data subjects have the right to rectification of inaccurate personal data. |
The position under the GDPR is largely unchanged, and organisations are likely to face the same requirements under the GDPR as under the Directive, in relation to the right of rectification. |
Right to erasure (the "right to be forgotten") Data subjects are entitled to require a controller to delete their personal data if the continued processing of those data is not justified |
Art.12(b) Data subjects had the right to have personal data erased or "blocked" where the controller failed to comply with the Directive (especially where the data are inaccurate or incomplete). |
Rec.65-66, 68; Art.17 Data subjects have the right to erasure of personal data (the "right to be forgotten") if:
|
The GDPR creates a broader right to erasure than the right as it was available to data subjects under the Directive. Consequently, organisations face a broader spectrum of erasure requests with which they must comply. |
The right to restrict processing In some circumstances, data subjects may not be entitled to require the controller to erase their personal data, but may be entitled to limit the purposes for which the controller can process those data (e.g., the exercise or defence of legal claims; protecting the rights of another person or entity; purposes that serve a substantial public interest; or such other purposes as the data subject may consent to). |
N/A The Directive did not directly address the right to restrict processing. However, the Directive did provide for the right to request the blocking of data under Art.12(b)-(c). This meant that the controller had to refrain from using the data during the period for which that right applied, even though the data had not yet been deleted. |
Rec.67; Art.18 Data subjects have the right to restrict the processing of personal data (meaning that the data may only be held by the controller, and may only be used for limited purposes) if:
|
Under the GDPR, in addition to the right to erasure (or "right to be forgotten"— see above) organisations face a much broader range of circumstances in which data subjects can require that the processing of their personal data is restricted. |
Notifying third parties regarding rectification, erasure or restriction It is only possible to give full effect to the rights of data subjects if all parties who are processing the relevant data are aware that the data subject has exercised those rights. Therefore, controllers must notify any third parties with whom they have shared the relevant data that the data subject has exercised those rights. |
Art.12(c) Where a controller had disclosed personal data to any third parties, and the data subject subsequently exercised any of the rights of rectification, erasure or blocking, the controller had to notify those third parties of the data subject's exercising of those rights. The controller was exempt from this obligation if it was impossible or would have required disproportionate effort. |
Rec.62; Art.17(2), 19 Where a controller has disclosed personal data to any third parties, and the data subject has subsequently exercised any of the rights of rectification, erasure or blocking, the controller must notify those third parties of the data subject's exercising of those rights. The controller is exempt from this obligation if it is impossible or would require disproportionate effort. The data subject is also entitled to request information about the identities of those third parties. Where the controller has made the data public, and the data subject exercises these rights, the controller must take reasonable steps (taking costs into account) to inform third parties that the data subject has exercised those rights. |
In addition to implementing systems and procedures for giving effect to the new rights that the GDPR grants to data subjects, organisations are also required to implement systems and procedures for notifying affected third parties about the exercise of those rights. For organisations that disclose personal data to a large number of third parties, this may be particularly burdensome. |
Right of data portability Data subjects have the right to transfer their personal data between controllers (e.g., to move account details from one online platform to another). The WP29 has issued Guidelines on Data Portability (WP 242) (the "Data Portability Guidelines") which provide further clarity on the concept of data portability. |
N/A The Directive did not directly address the right of data portability. |
Rec.68, 73; Art.20; WP29 Data Portability Guidelines Data subjects have a right to:
Inferred data and derived data (e.g., a credit score or the outcome of a health assessment) do not fall within the right to data portability, because such data are not "provided by the data subject". In addition, the controller is not obliged to retain personal data for longer than is otherwise necessary, simply to service a potential data portability request. |
For some organisations, this new right to transfer personal data between controllers creates a significant additional burden, requiring substantial investment in new systems and processes. The WP29 considers that controllers should:
|
Right to object to processing As set out in Chapter 7, a controller must have a legal basis for processing personal data. However, where that legal basis is either "public interest" or "legitimate interests", those legal bases are not absolute, and data subjects may have a right to object to such processing. |
Rec.30, 45; Art.14(a) Data subjects had the right to object, on any compelling legitimate grounds, to the processing of personal data, where the basis for that processing was either:
Where the data subject's objection was justified, the controller had to cease the relevant processing activity in relation to those data. |
Rec.50, 59, 69-70, 73; Art.21 Data subjects have the right to object, on grounds relating to their particular situation, to the processing of personal data, where the basis for that processing is either:
The controller must cease such processing unless the controller:
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The Directive permitted an organisation to continue processing the relevant data unless the data subject could show that the objection was justified. The GDPR reverses the burden, and requires the organisation to demonstrate that it either has compelling grounds for continuing the processing, or that the processing is necessary in connection with its legal rights. If it cannot demonstrate that the relevant processing activity falls within one of these two grounds, it must cease that processing activity. This will be especially problematic for organisations that rely on their own legitimate interests as a legal basis for processing personal data. |
Right to object to processing for the purposes of direct marketing Data subjects have the right to object to the processing of their personal data for the purposes of direct marketing. |
Rec.30; Art.14(b) Data subjects had the right to object to the processing of personal data for the purpose of direct marketing. |
Rec.70; Art.21(2)-(3) Data subjects have the right to object to the processing of personal data for the purpose of direct marketing, including profiling. |
The GDPR preserves the position as it stood under the Directive. It should be noted that data subjects also have rights in respect of direct marketing under the ePrivacy Directive (see Chapter 18). |
Right to object to processing for scientific, historical or statistical purposes Personal data may be processed for scientific, historical or statistical purposes in the public interest, but individuals have a right to object to such processing. |
N/A The Directive did not provide a specific right to object to processing of this type, but note the general right to object to processing set out above. |
Rec.156; Art.21(6), 83(1) Where personal data are processed for scientific and historical research purposes or statistical purposes, the data subject has the right to object, unless the processing is necessary for the performance of a task carried out for reasons of public interest. |
In effect, the GDPR gives individuals a more specific right to object than the rights that were available under the Directive. In practice, this is likely to make little difference for most organisations. |
Obligation to inform data subjects of the right to object Controllers are obliged to inform data subjects of their rights to object to processing. |
N/A The Directive did not provide a specific obligation to inform data subjects of these rights. |
Art.13(2)(b), 14(2)(c), 15(1)(e), 21(4) The right to object to processing of personal data noted above must be communicated to the data subject no later than the time of the first communication with the data subject. This information should be provided clearly and separately from any other information provided to the data subject. |
Controllers are obliged to provide additional information to data subjects. For many organisations, this will require revisions to standard data protection policies and privacy notices. |
Right to not be evaluated on the basis of automated processing Data subjects have the right not to be evaluated in any material sense (e.g., in connection with offers of employment; supermarket discounts; or insurance premiums) solely on the basis of automated processing of their personal data. |
Rec.11, 15, 27, 41; Art.15 Data subjects had the right not to be subjected to decisions based solely on automated processing of data for the purpose of personal evaluation. Such processing was permitted where:
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Rec.71, 75; Art.22 Data subjects have the right not to be subject to a decision based solely on automated processing which significantly affect them (including profiling). Such processing is permitted where:
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The GDPR preserves the position as it stood under the Directive, with only minor amendments. The GDPR clarifies that the consent of the data subject is a valid basis for evaluation on the basis of automated profiling. |
Commentary: Overriding objective of the GDPR
As the recitals make clear, a key objective of the GDPR is to protect and strengthen the rights of data subjects. The expansion of these rights is likely to be accompanied by stricter enforcement. Consequently, organisations should implement the following measures to give effect to the enhanced rights of data subjects:
- Review of data processing systems. Each organisation should consider whether practical changes to its data processing systems are needed (e.g., do those systems enable the organisation to quickly identify and isolate all copies of all personal data relating to a particular data subject? If not, those systems should be updated to provide this functionality).
- Update privacy policies. Organisations should consider whether their existing privacy policies need to be updated to reflect the additional rights granted to data subjects under the GDPR.
- Employee training. Organisations should ensure that any of their employees who process personal data are appropriately trained, so that they can quickly recognise, and appropriately respond to, requests from data subjects to exercise their rights.
Commentary: "Legitimate interests" and the right to object
Many organisations rely on "legitimate interests" as a legal basis for the processing of personal data (see Chapter 7). As set out in this Chapter, the GDPR permits data subjects to object to the processing of their personal data on this basis (much as the Directive did). However, the GDPR reverses the burden of proof. Rather than the data subject having to demonstrate justified grounds for objecting, the controller must demonstrate "compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject".
As a result, many businesses may find that they are not able to rely on legitimate interests as a legal basis for the processing of personal data in the course of their ordinary business activities.
Commentary: The "right to be forgotten"
The "right to be forgotten" has attracted a lot of attention, but is often poorly understood. In essence, it states that data subjects have the right to require an organisation that holds their personal data to delete those data where the retention of those data is not compliant with the requirements of the GDPR. In most cases, provided that an organisation has a legal basis for processing personal data, it will not be significantly affected by the right to be forgotten.
It is worth noting that there is a significant overlap between the "right to be forgotten" set out in the GDPR and the decision of the CJEU in Costeja (Case C-131/12) (regarding the rights of individuals to have their personal data removed from certain search engine results). It remains to be seen how DPAs will interpret Costeja in light of that overlap.
Unlocking the EU General Data Protection Regulation:
A practical handbook on the EU's new data protection law
Chapter 2: Complying with the GDPR
Chapter 3: Subject matter and scope
Chapter 4: Territorial application
Chapter 6: Data Protection Principles
Chapter 7: Legal basis for processing
Chapter 9: Rights of data subjects
Chapter 10: Obligations of controllers
Chapter 11: Obligations of processors
Chapter 12: Impact Assessments, DPOs and Codes of Conduct
Chapter 13: Cross-Border Data Transfers
Chapter 14: Data Protection Authorities
Chapter 15: Cooperation and consistency
Chapter 16: Remedies and sanctions
Chapter 17: Issues subject to national law
Chapter 18: Relationships with other laws
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