If you are looking for somewhere that explains the GDPR in plain English,  David Froud and Angela Boswell (DPO/Lawyer/GDPR Implementer) have done a brilliant job which we can share with you below. Full credit to them both. Check out their site at http://www.davidfroud.com/free-resource-the-gdpr-in-plain-english/ and you can download as an XLS here too:  GDPR-in-Plain-English_v180108

 

Type Recital # Recital Description Recital Title Plain English References
Recital 1 The protection of natural persons in relation to the processing of personal data is a fundamental right. Article 8(1) of the Charter of Fundamental Rights of the European Union (the ‘Charter’) and Article 16(1) of the Treaty on the Functioning of the European Union (TFEU) provide that everyone has the right to the protection of personal data concerning him or her. Data Protection as a Fundamental Right Protection of personal data is a fundamental human right. When processing personal data that right must be respected. CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION

Article 8

Protection of Personal Data

1. Everyone has the right to the protection of personal data concerning him or her.

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

Article 16

1. Everyone has the right to the protection of personal data concerning them.

Recital 2 The principles of, and rules on the protection of natural persons with regard to the processing of their personal data should, whatever their nationality or residence, respect their fundamental rights and freedoms, in particular their right to the protection of personal data. This Regulation is intended to contribute to the accomplishment of an area of freedom, security and justice and of an economic union, to economic and social progress, to the strengthening and the convergence of the economies within the internal market, and to the well-being of natural persons. Respect of the Fundamental Rights and Freedoms Rules on data protection should serve to protect a person’s rights, anywhere in the EU. The Regulation is intended to remove barriers to progress.
Recital 3 Directive 95/46/EC of the European Parliament and of the Council seeks to harmonise the protection of fundamental rights and freedoms of natural persons in respect of processing activities and to ensure the free flow of personal data between Member States. Directive 95/46/EC Harmonisation The current legislation seeks to harmonise the protection of personal data and allow the free flow of personal data within the EU. (Note: this recital will be obsolete after 25 May 2018) DIRECTIVE 95/46/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 24-Oct-95

– on the protection of individuals with regard to the processing of personal data and on the free movement of such data

Recital 4 The processing of personal data should be designed to serve mankind. The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality. This Regulation respects all fundamental rights and observes the freedoms and principles recognised in the Charter as enshrined in the Treaties, in particular the respect for private and family life, home and communications, the protection of personal data, freedom of thought, conscience and religion, freedom of expression and information, freedom to conduct a business, the right to an effective remedy and to a fair trial, and cultural, religious and linguistic diversity. Data Protection is not an ‘Absolute Right’ / Proportionality with Other Rights The right to the protection of personal data is not an ‘absolute’ right, and must be considered in relation to its purpose and can be limited where other rights are impacted. CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION
EU Treaties Currently in Force
Recital 5 The economic and social integration resulting from the functioning of the internal market has led to a substantial increase in cross-border flows of personal data. The exchange of personal data between public and private actors, including natural persons, associations and undertakings across the Union has increased. National authorities in the Member States are being called upon by Union law to cooperate and exchange personal data so as to be able to perform their duties or carry out tasks on behalf of an authority in another Member State. Cooperation Between Member States Related to the Exchange of Personal Data By its very nature, the EU requires significant cross-border flows of personal data. This is increasing.

Note: Per GDPR Article 56, the ‘lead supervisory authority’ is considered competent to assume the controlling role.

GDPR – Article 4 – Definitions

(23) ‘cross-border processing’ means either:

(a) processing of personal data which takes place in the context of the activities of establishments in more than one Member State of a controller or processor in the Union where the controller or processor is established in more than one Member State; or

(b) processing of personal data which takes place in the context of the activities of a single establishment of a controller or processor in the Union but which substantially affects or is likely to substantially affect data subjects in more than one Member State.

Recital 6 Rapid technological developments and globalisation have brought new challenges for the protection of personal data. The scale of the collection and sharing of personal data has increased significantly. Technology allows both private companies and public authorities to make use of personal data on an unprecedented scale in order to pursue their activities. Natural persons increasingly make personal information available publicly and globally. Technology has transformed both the economy and social life, and should further facilitate the free flow of personal data within the Union and the transfer to third countries and international organisations, while ensuring a high level of the protection of personal data. Ensuring a High Level of Data Protection Despite the Increased Collection and Use of Data Technology has vastly increased the collection, use, and transfers of personal data. Protection of the data must keep pace.

Note: ‘Third countries’ are those outside of the EU.

Recital 7 Those developments require a strong and more coherent data protection framework in the Union, backed by strong enforcement, given the importance of creating the trust that will allow the digital economy to develop across the internal market. Natural persons should have control of their own personal data. Legal and practical certainty for natural persons, economic operators and public authorities should be enhanced. More Coherent Data Protection Framework Backed by Strong Enforcement. Data protection requires a strong framework and enforcement (i.e. this regulation).

People should have control over their own data.

People, businesses and public authorities need to know what they can expect or are expected to do.

Recital 8 Where this Regulation provides for specifications or restrictions of its rules by Member State law, Member States may, as far as necessary for coherence and for making the national provisions comprehensible to the persons to whom they apply, incorporate elements of this Regulation into their national law. Member State Incorporation of Regulation into National Law Member States can incorporate parts of this Regulation into their individual laws, but only where the Regulation specifically permits it.
Recital 9 The objectives and principles of Directive 95/46/EC remain sound, but it has not prevented fragmentation in the implementation of data protection across the Union, legal uncertainty or a widespread public perception that there are significant risks to the protection of natural persons, in particular with regard to online activity. Differences in the level of protection of the rights and freedoms of natural persons, in particular the right to the protection of personal data, with regard to the processing of personal data in the Member States may prevent the free flow of personal data throughout the Union. Those differences may therefore constitute an obstacle to the pursuit of economic activities at the level of the Union, distort competition and impede authorities in the discharge of their responsibilities under Union law. Such a difference in levels of protection is due to the existence of differences in the implementation and application of Directive 95/46/EC. Fragmentation in Implementation and Levels of Protection Across the Union Under Directive 95/45/EC The Data Protection Direction, while sound in objective, has been implemented differently in different Member States and could not keep pace with innovation. This Regulation hopes to remove the roadblocks (as they relate to the use of personal data) to continued economic growth which requires a level playing field with regard levels of data protection across the EU. DIRECTIVE 95/46/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 24-Oct-95

– on the protection of individuals with regard to the processing of personal data and on the free movement of such data

Recital 10 In order to ensure a consistent and high level of protection of natural persons and to remove the obstacles to flows of personal data within the Union, the level of protection of the rights and freedoms of natural persons with regard to the processing of such data should be equivalent in all Member States. Consistent and homogenous application of the rules for the protection of the fundamental rights and freedoms of natural persons with regard to the processing of personal data should be ensured throughout the Union. Regarding the processing of personal data for compliance with a legal obligation, for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, Member States should be allowed to maintain or introduce national provisions to further specify the application of the rules of this Regulation. In conjunction with the general and horizontal law on data protection implementing Directive 95/46/EC, Member States have several sector-specific laws in areas that need more specific provisions. This Regulation also provides a margin of manoeuvre for Member States to specify its rules, including for the processing of special categories of personal data (‘sensitive data’). To that extent, this Regulation does not exclude Member State law that sets out the circumstances for specific processing situations, including determining more precisely the conditions under which the processing of personal data is lawful. Level of Protection with Regard to the Processing of Data Should be Equivalent in all Member States ● The levels of protection in each Member State must be ‘equivalent’;

● Application of the rules must be consistent throughout the Union;

● Member States can introduce national level provisions related to the use of personal data in cases of legal obligation, public interest, or to exercise the controller’s official authority’; and

● Member States have some ‘margin for manoeuvre’ in making laws relating to processing personal data in specific sectors or  ‘special categories’ of data.

DIRECTIVE 95/46/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 24-Oct-95

– on the protection of individuals with regard to the processing of personal data and on the free movement of such data

Recital 11 Effective protection of personal data throughout the Union requires the strengthening and setting out in detail of the rights of data subjects and the obligations of those who process and determine the processing of personal data, as well as equivalent powers for monitoring and ensuring compliance with the rules for the protection of personal data and equivalent sanctions for infringements in the Member States. Strengthening of the Powers and Sanctions Against Infringements ● The rights of the data subject and the obligations of the data processors and controllers must be clearly defined;

● The powers for monitoring and enforcement of the rules for the protection of personal data must be clearly defined.

Recital 12 Article 16(2) TFEU mandates the European Parliament and the Council to lay down the rules relating to the protection of natural persons with regard to the processing of personal data and the rules relating to the free movement of personal data. Rules for the European Parliament and the Council Self explanatory. TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

Article 16

2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.

Recital 13 In order to ensure a consistent level of protection for natural persons throughout the Union and to prevent divergences hampering the free movement of personal data within the internal market, a Regulation is necessary to provide legal certainty and transparency for economic operators, including micro, small and medium-sized enterprises, and to provide natural persons in all Member States with the same level of legally enforceable rights and obligations and responsibilities for controllers and processors, to ensure consistent monitoring of the processing of personal data, and equivalent sanctions in all Member States as well as effective cooperation between the supervisory authorities of different Member States. The proper functioning of the internal market requires that the free movement of personal data within the Union is not restricted or prohibited for reasons connected with the protection of natural persons with regard to the processing of personal data. To take account of the specific situation of micro, small and medium-sized enterprises, this Regulation includes a derogation for organisations with fewer than 250 employees with regard to record-keeping. In addition, the Union institutions and bodies, and Member States and their supervisory authorities, are encouraged to take account of the specific needs of micro, small and medium-sized enterprises in the application of this Regulation. The notion of micro, small and medium-sized enterprises should draw from Article 2 of the Annex to Commission Recommendation 2003/361/EC. Micro, Small, and Medium-Sized Enterprises and Free Movement of Personal Data Within the Union A Regulation (which is the same for every Member State) and not a Directive (which can be implemented in different ways) is necessary to:

1) let all EU businesses know what they need to do;
2) provide all EU citizens with the same level of protection and the means to enforce their rights against those who are processing their data;
3) ensure consistent monitoring and enforcement on the processing of personal data;
4) make sure there are equivalent sanctions in all Member States; and
5) ensure effective cooperation between the supervisory authorities in Member States.

Rules on protecting personal data should not prevent free movement of data which would disrupt the functioning of the internal market.

Organisations of fewer than 250 people may be exempt from ‘record keeping'(see GDPR Article 30).

The organisations applying the rules of the Regulation need to consider the needs of micro, small and medium-sized businesses.

COMMISSION RECOMMENDATION, 6-May-03

– concerning the definition of micro, small and medium-sized enterprises

Annex, Article 2

Staff headcount and financial ceilings determining enterprise categories

1. The category of micro, small and medium-sized entterprises (SMEs) is made up of enterprises which employ fewer than 250 persons and which have an annual turnover not exceeding EUR 50 million, and/or an annual balance sheettotal not exceeding EUR 43 million.

2. Within the SME category, a small enterprise is defined as an enterprise which employs fewer than 50 persons and whose annual turnover and/or annual balance sheet total does not exceed EUR 10 million.

3. Within the SME category, a microenterprise is defined as an enterprise which employs fewer than 10 persons and whose annual turnover and/or annual balance sheet total does not exceed EUR 2 million.

GDPR – Article 30 – Records of processing activities
Recital 14 The protection afforded by this Regulation should apply to natural persons, whatever their nationality or place of residence, in relation to the processing of their personal data. This Regulation does not cover the processing of personal data which concerns legal persons and in particular undertakings established as legal persons, including the name and the form of the legal person and the contact details of the legal person. Non-Applicability to Legal Persons The Regulations applies to all EU ‘natural persons’ (i.e. real people, not companies or other legal entities) regardless of where they are from, or where they currently live.

The Regulation does NOT apply to the processing of personal data of a ‘legal person’ (i.e. not living and breathing).

GDPR – Article 49 – Derogations for specific situations

(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;

Recital 15 In order to prevent creating a serious risk of circumvention, the protection of natural persons should be technologically neutral and should not depend on the techniques used. The protection of natural persons should apply to the processing of personal data by automated means, as well as to manual processing, if the personal data are contained or are intended to be contained in a filing system. Files or sets of files, as well as their cover pages, which are not structured according to specific criteria should not fall within the scope of this Regulation. Technology Neutrality The protection of natural persons applies regardless of how the data is processed.

Unstructured ‘files’ i.e. is not mapped to ‘specific criteria’ is not in scope. e.g. a database is in scope, but a free-form letter is not.

Recital 16 This Regulation does not apply to issues of protection of fundamental rights and freedoms or the free flow of personal data related to activities which fall outside the scope of Union law, such as activities concerning national security. This Regulation does not apply to the processing of personal data by the Member States when carrying out activities in relation to the common foreign and security policy of the Union. Non-Applicability to Activities Regarding National and Common Security Issues which are not governed by EU law, such as national security, are not subject to this Regulation.

Likewise, activities related to the Common Foreign and Security Policy are also exempt.

GDPR – Article 23 – Restrictions

1. Union or Member State law to which the data controller or processor is subject may restrict by way of a legislative measure the scope of the obligations and rights provided for in Articles 12 to 22 and Article 34, as well as Article 5 in so far as its provisions correspond to the rights and obligations provided for in Articles 12 to 22, when such a restriction respects the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society to safeguard:

(a) national security;

CONSOLIDATED VERSION OF THE TREATY ON EUROPEAN UNION

Title V

General Provisions on the Union’s External Action and Specific Provisions on the Commmon Foreign and Security Policy

Recital 17 Regulation (EC) No 45/2001 of the European Parliament and of the Council applies to the processing of personal data by the Union institutions, bodies, offices and agencies. Regulation (EC) No 45/2001 and other Union legal acts applicable to such processing of personal data should be adapted to the principles and rules established in this Regulation and applied in the light of this Regulation. In order to provide a strong and coherent data protection framework in the Union, the necessary adaptations of Regulation (EC) No 45/2001 should follow after the adoption of this Regulation, in order to allow application at the same time as this Regulation. Adaptation of Regulation (EC) No 45/2001 The Regulation (EC) No 45/2001 must be brought into line with the GDPR, which takes precedence. REGULATION (EC) No 45/2001 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 18-Dec-00

– on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data

Recital 18 This Regulation does not apply to the processing of personal data by a natural person in the course of a purely personal or household activity and thus with no connection to a professional or commercial activity. Personal or household activities could include correspondence and the holding of addresses, or social networking and online activity undertaken within the context of such activities. However, this Regulation applies to controllers or processors which provide the means for processing personal data for such personal or household activities. Non-Applicability to Personal or Household Activities The Regulation only applies to the processing of personal data in connection with commercial or professional activities, not in connection with personal activities by individuals. GDPR – Article 2 – Material scope

2. This Regulation does not apply to the processing of personal data:

(c) by a natural person in the course of a purely personal or household activity;

Recital 19 The protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security and the free movement of such data, is the subject of a specific Union legal act. This Regulation should not, therefore, apply to processing activities for those purposes. However, personal data processed by public authorities under this Regulation should, when used for those purposes, be governed by a more specific Union legal act, namely Directive (EU) 2016/680 of the European Parliament and of the Council. Member States may entrust competent authorities within the meaning of Directive (EU) 2016/680 with tasks which are not necessarily carried out for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and prevention of threats to public security, so that the processing of personal data for those other purposes, in so far as it is within the scope of Union law, falls within the scope of this Regulation.

With regard to the processing of personal data by those competent authorities for purposes falling within scope of this Regulation, Member States should be able to maintain or introduce more specific provisions to adapt the application of the rules of this Regulation. Such provisions may determine more precisely specific requirements for the processing of personal data by those competent authorities for those other purposes, taking into account the constitutional, organisational and administrative structure of the respective Member State. When the processing of personal data by private bodies falls within the scope of this Regulation, this Regulation should provide for the possibility for Member States under specific conditions to restrict by law certain obligations and rights when such a restriction constitutes a necessary and proportionate measure in a democratic society to safeguard specific important interests including public security and the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security. This is relevant for instance in the framework of anti-money laundering or the activities of forensic laboratories.

Non-Applicability to Criminal Prosecution In cases where the processing of personal data relates to criminal activity or public safety etc. is subject to Directive (EU) 2016/680 and not the GDPR.

However, any processing not directly involved with the “prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and prevention of threats to public security” will still fall under GDPR.

Where “other purposes”, but still under Directive (EU) 2016/680, are involved, each Member State can adapt the application of the GDPR rules inline with their national constitutional, organisational and administrative structures.

Where issues “including public security and the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security” are involved, ‘private bodies’ (i.e. non-Government businesses) should have some leeway in the application of the GDPR rules.

DIRECTIVE (EU) 2016/680 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 27-Apr-16

– on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA

Recital 20 While this Regulation applies, inter alia, to the activities of courts and other judicial authorities, Union or Member State law could specify the processing operations and processing procedures in relation to the processing of personal data by courts and other judicial authorities. The competence of the supervisory authorities should not cover the processing of personal data when courts are acting in their judicial capacity, in order to safeguard the independence of the judiciary in the performance of its judicial tasks, including decision-making. It should be possible to entrust supervision of such data processing operations to specific bodies within the judicial system of the Member State, which should, in particular ensure compliance with the rules of this Regulation, enhance awareness among members of the judiciary of their obligations under this Regulation and handle complaints in relation to such data processing operations. Respecting the Independence of the Judiciary In order to maintain judicial independence, judicial authorities will manage themselves in relation to the principles within the GDPR (so as to not give power over the judiciary to supervisory authorities). GDPR – Article 9 – Processing of special categories of personal data

2. Paragraph 1 shall not apply if one of the following applies:

(f) processing is necessary for the establishment, exercise or defence of legal claims or whenever courts are acting in their judicial capacity;

GDPR – Article 23 – Restrictions

1. Union or Member State law to which the data controller or processor is subject may restrict by way of a legislative measure the scope of the obligations and rights provided for in Articles 12 to 22 and Article 34, as well as Article 5 in so far as its provisions correspond to the rights and obligations provided for in Articles 12 to 22, when such a restriction respects the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society to safeguard:

(f) the protection of judicial independence and judicial proceedings;

GDPR – Article 55 – Competence

3. Supervisory authorities shall not be competent to supervise processing operations of courts acting in their judicial capacity.

Recital 21 This Regulation is without prejudice to the application of Directive 2000/31/EC of the European Parliament and of the Council, in particular of the liability rules of intermediary service providers in Articles 12 to 15 of that Directive. That Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between Member States. Liability Rules of Intermediary Service Providers Shall Remain Unaffected ‘Intermediary’ service providers are not liable under GDPR for bandwidth, caching, or hosting services as long as they meet certain criteria. Directive 2000/31/EC of the European Parliament and of the Council, 8-Jun-00

– on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce)

Article 12 – Mere conduit
Article 13 – Caching
Article 14 – Hosting
Article 15 – No general obligation to monitor

Recital 22 Any processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union should be carried out in accordance with this Regulation, regardless of whether the processing itself takes place within the Union. Establishment implies the effective and real exercise of activity through stable arrangements. The legal form of such arrangements, whether through a branch or a subsidiary with a legal personality, is not the determining factor in that respect. Processing Under the Context of an ‘Establishment’ Processing of data by other legal entities related to controllers and processors through formal arrangements (e.g. parent/subsidiary/affiliate companies) is covered under GDPR regardless of where the data is processed. GDPR – 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, regardless of whether the processing takes place in the Union or not.

Recital 23 In order to ensure that natural persons are not deprived of the protection to which they are entitled under this Regulation, the processing of personal data of data subjects who are in the Union by a controller or a processor not established in the Union should be subject to this Regulation where the processing activities are related to offering goods or services to such data subjects irrespective of whether connected to a payment. In order to determine whether such a controller or processor is offering goods or services to data subjects who are in the Union, it should be ascertained whether it is apparent that the controller or processor envisages offering services to data subjects in one or more Member States in the Union. Whereas the mere accessibility of the controller’s, processor’s or an intermediary’s website in the Union, of an email address or of other contact details, or the use of a language generally used in the third country where the controller is established, is insufficient to ascertain such intention, factors such as the use of a language or a currency generally used in one or more Member States with the possibility of ordering goods and services in that other language, or the mentioning of customers or users who are in the Union, may make it apparent that the controller envisages offering goods or services to data subjects in the Union. Applicability to Processors not Established in the Union if Data Subjects Within the Union are Targeted If the organisation that is processing data is not established in the Union but targets their services to Union data subjects, GDPR applies.

This does not include data /controllers processors whose services are available to Union data subjects (e-commerce for example), but have made no special provision for Union Member in their functionality. e.g. a US e-commerce website that only caters to English speakers and requires you to pay in USD would not apply.

GDPR – Article 3 – Territorial scope

2. This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to:

(a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or

Recital 24 The processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union should also be subject to this Regulation when it is related to the monitoring of the behaviour of such data subjects in so far as their behaviour takes place within the Union. In order to determine whether a processing activity can be considered to monitor the behaviour of data subjects, it should be ascertained whether natural persons are tracked on the internet including potential subsequent use of personal data processing techniques which consist of profiling a natural person, particularly in order to take decisions concerning her or him or for analysing or predicting her or his personal preferences, behaviours and attitudes. Applicability to Processors Not Established in the Union if Data Subjects Within the Union are Profiled Where processors are not established in the Union, but they monitor the behaviour of data subjects within the Union for profiling and analysis, they are subject to the GDPR. GDPR – Article 3 – Territorial scope

2. This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to:

(b) the monitoring of their behaviour as far as their behaviour takes place within the Union.

Recital 25 Where Member State law applies by virtue of public international law, this Regulation should also apply to a controller not established in the Union, such as in a Member State’s diplomatic mission or consular post. Applicability to Controllers Under International Law Embassies, Consular posts and other locations covered under International Law are also covered under GDPR.
Recital 26 The principles of data protection should apply to any information concerning an identified or identifiable natural person. Personal data which have undergone pseudonymisation, which could be attributed to a natural person by the use of additional information should be considered to be information on an identifiable natural person. To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. The principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable. This Regulation does not therefore concern the processing of such anonymous information, including for statistical or research purposes. Non-Applicability to Anonymous, ‘Pseudonimised’, Data If the data can be anonymised, with no ‘reasonable’ options for ever identifying the individual available, the data can be considered ‘out of scope’.

However, if you can reconstruct the identity of the individual by merging the anonymised data with other data sources, it is still in scope.

The effort required to reconstruct data to identify an individual vs. the value of the data will be taken in to consideration in deciding if data is sufficiently anonymised.

Assume this is specifically aimed at big data analytics and equivalent.

GDPR – Article 4 – Definitions

(5) ‘pseudonymisation’ means the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person;

GDPR – Article 32 – Security of processing

1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the controller and the processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:

(a) the pseudonymisation and encryption of personal data;

Recital 27 This Regulation does not apply to the personal data of deceased persons. Member States may provide for rules regarding the processing of personal data of deceased persons. Non-Applicability to Data of Deceased Persons Self explanatory.
Recital 28 The application of pseudonymisation to personal data can reduce the risks to the data subjects concerned and help controllers and processors to meet their data-protection obligations. The explicit introduction of ‘pseudonymisation’ in this Regulation is not intended to preclude any other measures of data protection. Introduction of Pseudonymisation to Meet Data-Protection Obligations Self explanatory. See Recital 26
Recital 29 In order to create incentives to apply pseudonymisation when processing personal data, measures of pseudonymisation should, whilst allowing general analysis, be possible within the same controller when that controller has taken technical and organisational measures necessary to ensure, for the processing concerned, that this Regulation is implemented, and that additional information for attributing the personal data to a specific data subject is kept separately. The controller processing the personal data should indicate the authorised persons within the same controller. Pseudonymisation Within the Same Controller Data controllers should use anonymised data internally wherever possible. (For example, finance may need all the data for a particular transaction, but marketing only need an anonymised subset.)

The data controller still has to ensure that appropriate measures are taken to protect pseudonymised data.

Recital 30 Natural persons may be associated with online identifiers provided by their devices, applications, tools and protocols, such as internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags. This may leave traces which, in particular when combined with unique identifiers and other information received by the servers, may be used to create profiles of the natural persons and identify them. Online Identifiers for Identification and/or Profiling Trace identifiers from use of technology is also considered in scope. IP addresses, cookies, GPS locations etc.
Recital 31 Public authorities to which personal data are disclosed in accordance with a legal obligation for the exercise of their official mission, such as tax and customs authorities, financial investigation units, independent administrative authorities, or financial market authorities responsible for the regulation and supervision of securities markets should not be regarded as recipients if they receive personal data which are necessary to carry out a particular inquiry in the general interest, in accordance with Union or Member State law. The requests for disclosure sent by the public authorities should always be in writing, reasoned and occasional and should not concern the entirety of a filing system or lead to the interconnection of filing systems. The processing of personal data by those public authorities should comply with the applicable data-protection rules according to the purposes of the processing. Non-Applicability to Public Authorities in Connection with Their Official Tasks GDPR does not apply to processing by public authorities (i.e. Government departments) carrying out investigations which are in their area of responsibility, but they should still process data in a limited way and in a manner compliant with the GDPR’s intent.
Recital 32 Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement. This could include ticking a box when visiting an internet website, choosing technical settings for information society services or another statement or conduct which clearly indicates in this context the data subject’s acceptance of the proposed processing of his or her personal data. Silence, pre-ticked boxes or inactivity should not therefore constitute consent. Consent should cover all processing activities carried out for the same purpose or purposes. When the processing has multiple purposes, consent should be given for all of them. If the data subject’s consent is to be given following a request by electronic means, the request must be clear, concise and not unnecessarily disruptive to the use of the service for which it is provided. Consent as a ‘Clear Affirmative Act’ Consent must be clear and unambiguous, and should involve some interaction from the data subject. i.e. opt in, never opt out.

In other word, consent must always be explicit, never implied.

Consent received for one processing activity does not cover any other type, so consent must be explicitly received for all purposes.

Requests for consent must clear and concise, i.e. In a language and phrasing the data subject can easily understand, and must not be overly complicated or cumbersome.

GDPR – Article 4 – Definitions

(11) ‘consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her;

Recital 33 It is often not possible to fully identify the purpose of personal data processing for scientific research purposes at the time of data collection. Therefore, data subjects should be allowed to give their consent to certain areas of scientific research when in keeping with recognised ethical standards for scientific research. Data subjects should have the opportunity to give their consent only to certain areas of research or parts of research projects to the extent allowed by the intended purpose. Consent for Research Purposes There is some leeway for consent collection for scientific research purposes, but the data subject should still have general control over the use of the data. The researchers must also fully abide by accepted ethical standards. GDPR – Article 5 – Principles relating to processing of personal data

1. Personal data shall be:

(b) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall, in accordance with Article 89(1), not be considered to be incompatible with the initial purposes (‘purpose limitation’);

GDPR – Article 21 – Right to object

6. Where personal data are processed for scientific or historical research purposes or statistical purposes pursuant to Article 89(1), the data subject, on grounds relating to his or her particular situation, shall have the right to object to processing of personal data concerning him or her, unless the processing is necessary for the performance of a task carried out for reasons of public interest.

GDPR – Article 89 – Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes

1. Processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, shall be subject to appropriate safeguards, in accordance with this Regulation, for the rights and freedoms of the data subject. Those safeguards shall ensure that technical and organisational measures are in place in particular in order to ensure respect for the principle of data minimisation. Those measures may include pseudonymisation provided that those purposes can be fulfilled in that manner. Where those purposes can be fulfilled by further processing which does not permit or no longer permits the identification of data subjects, those purposes shall be fulfilled in that manner.

Recital 34 Genetic data should be defined as personal data relating to the inherited or acquired genetic characteristics of a natural person which result from the analysis of a biological sample from the natural person in question, in particular chromosomal, deoxyribonucleic acid (DNA) or ribonucleic acid (RNA) analysis, or from the analysis of another element enabling equivalent information to be obtained. Genetic Data Genetic data is in scope. GDPR – Article 4 – Definitions

(13) ‘genetic data’ means personal data relating to the inherited or acquired genetic characteristics of a natural person which give unique information about the physiology or the health of that natural person and which result, in particular, from an analysis of a biological sample from the natural person in question;

GDPR – Article 9 – Processing of special categories of personal data

1. Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited.

4. Member States may maintain or introduce further conditions, including limitations, with regard to the processing of genetic data, biometric data or data concerning health.

Recital 35 Personal data concerning health should include all data pertaining to the health status of a data subject which reveal information relating to the past, current or future physical or mental health status of the data subject. This includes information about the natural person collected in the course of the registration for, or the provision of, health care services as referred to in Directive 2011/24/EU of the European Parliament and of the Council to that natural person; a number, symbol or particular assigned to a natural person to uniquely identify the natural person for health purposes; information derived from the testing or examination of a body part or bodily substance, including from genetic data and biological samples; and any information on, for example, a disease, disability, disease risk, medical history, clinical treatment or the physiological or biomedical state of the data subject independent of its source, for example from a physician or other health professional, a hospital, a medical device or an in vitro diagnostic test. Health Data Health data is in scope whether it concerns a data subject’s “past, current or future physical or mental health status”. DIRECTIVE 2011/24/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 9-Mar-11

– on the application of patients’ rights in cross-border healthcare

GDPR – Article 4 – Definitions

(15) ‘data concerning health’ means personal data related to the physical or mental health of a natural person, including the provision of health care services, which reveal information about his or her health status;

GDPR – Article 9 – Processing of special categories of personal data

1. Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited.

2. Paragraph 1 shall not apply if one of the following applies:
(h) processing is necessary for the purposes of preventive or occupational medicine, for the assessment of the working capacity of the employee, medical diagnosis, the provision of health or social care or treatment or the management of health or social care systems and services on the basis of Union or Member State law or pursuant to contract with a health professional and subject to the conditions and safeguards referred to in paragraph 3;

4. Member States may maintain or introduce further conditions, including limitations, with regard to the processing of genetic data, biometric data or data concerning health.

Recital 36 The main establishment of a controller in the Union should be the place of its central administration in the Union, unless the decisions on the purposes and means of the processing of personal data are taken in another establishment of the controller in the Union, in which case that other establishment should be considered to be the main establishment. The main establishment of a controller in the Union should be determined according to objective criteria and should imply the effective and real exercise of management activities determining the main decisions as to the purposes and means of processing through stable arrangements. That criterion should not depend on whether the processing of personal data is carried out at that location. The presence and use of technical means and technologies for processing personal data or processing activities do not, in themselves, constitute a main establishment and are therefore not determining criteria for a main establishment. The main establishment of the processor should be the place of its central administration in the Union or, if it has no central administration in the Union, the place where the main processing activities take place in the Union. In cases involving both the controller and the processor, the competent lead supervisory authority should remain the supervisory authority of the Member State where the controller has its main establishment, but the supervisory authority of the processor should be considered to be a supervisory authority concerned and that supervisory authority should participate in the cooperation procedure provided for by this Regulation. In any case, the supervisory authorities of the Member State or Member States where the processor has one or more establishments should not be considered to be supervisory authorities concerned where the draft decision concerns only the controller. Where the processing is carried out by a group of undertakings, the main establishment of the controlling undertaking should be considered to be the main establishment of the group of undertakings, except where the purposes and means of processing are determined by another undertaking. Determination of the ‘Main Establishment’ For a Controller: the main establishment is where the “effective and real exercise of management activities” takes place, especially in regard to decisions on how personal data is to be processed. Where the data is processed is not a determining factor.

For a Processor: the main establishment is where the “central administration in the Union” takes place, unless this is not located in the Union, when the “place where the main processing activities take place in the Union” is applicable.

In cases where both controller and processor are involved, the controller’s supervisory authority becomes the ‘Lead’ authority, and should work in cooperation with the Processor’s main establishment supervisory authority.

For undertakings (groups of companies, subsides etc.) the main establishment is where the controlling part is located, unless the decisions on how personal data is to be processed is handled elsewhere, when that location is now the main establishment.

GDPR – Article 4 – Definitions

(16) ‘main establishment’ means:

(a) as regards a controller with establishments in more than one Member State, the place of its central administration in the Union, unless the decisions on the purposes and means of the processing of personal data are taken in another establishment of the controller in the Union and the latter establishment has the power to have such decisions implemented, in which case the establishment having taken such decisions is to be considered to be the main establishment;

(b) as regards a processor with establishments in more than one Member State, the place of its central administration in the Union, or, if the processor has no central administration in the Union, the establishment of the processor in the Union where the main processing activities in the context of the activities of an establishment of the processor take place to the extent that the processor is subject to specific obligations under this Regulation;

Recital 37 A group of undertakings should cover a controlling undertaking and its controlled undertakings, whereby the controlling undertaking should be the undertaking which can exert a dominant influence over the other undertakings by virtue, for example, of ownership, financial participation or the rules which govern it or the power to have personal data protection rules implemented. An undertaking which controls the processing of personal data in undertakings affiliated to it should be regarded, together with those undertakings, as a group of undertakings. Undertakings / Enterprise Groups An undertaking is every aspect of an enterprise organisation, its controlling entity (HQ, BoD, etc.) and all subsidiaries, wholly owned entities, DBAs, as well as any other entity over which the controlling entity can “exert a dominant influence”.

A affiliated entity is not stand-alone, and will be considered as part of the enterprise as a whole.

GDPR – Article 4 – Definitions

(19) ‘group of undertakings’ means a controlling undertaking and its controlled undertakings;

Recital 38 Children merit specific protection with regard to their personal data, as they may be less aware of the risks, consequences and safeguards concerned and their rights in relation to the processing of personal data. Such specific protection should, in particular, apply to the use of personal data of children for the purposes of marketing or creating personality or user profiles and the collection of personal data with regard to children when using services offered directly to a child. The consent of the holder of parental responsibility should not be necessary in the context of preventive or counselling services offered directly to a child. Special Protection of Children’s Personal Data Self explanatory, but guidance from the ICO states;

“There are no global rules on children’s consent under the GDPR, but there is a specific provision in Article 8 on children’s consent for ‘information society services’ (services requested and delivered over the internet). In short, if you offer these types of services directly to children (other than preventive or counselling services) and you want to rely on consent rather than another lawful basis for your processing, you must get parental consent for children under 16 – although the UK may choose to lower this, to a minimum age of 13.

If you choose to rely on children’s consent, you will need to implement age-verification measures, and make ‘reasonable efforts’ to verify parental responsibility for those under the relevant age.

For other types of processing, the general rule in the UK is that you should consider whether the individual child has the competence to understand and consent for themselves (the ‘Gillick competence test’). In practice, you may still need to consider age-verification measures as part of this assessment, and take steps to verify parental consent for children without competence to consent for themselves.

You may find it beneficial to consider ‘legitimate interests’ as a potential lawful basis instead of consent. This will help ensure you assess the impact of your processing on children and consider whether it is fair and proportionate.”

GDPR – Article 8

Conditions applicable to child’s consent in relation to information society services

1. Where point (a) of Article 6(1) applies, in relation to the offer of information society services directly to a child, the processing of the personal data of a child shall be lawful where the child is at least 16 years old. Where the child is below the age of 16 years, such processing shall be lawful only if and to the extent that consent is given or authorised by the holder of parental responsibility over the child.

Member States may provide by law for a lower age for those purposes provided that such lower age is not below 13 years.

GDPR – Article 6

Lawfulness of processing

1. Processing 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 his or her personal data for one or more specific purposes;

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

Data controller must:

● identify themselves to the data subject;
● provide clarity regarding the data concerning the data subject which are being processed;
● clearly define the risks, rules, safeguards and rights in relation to the processing;
● clearly communicate how to exercise those rights;
● state the specific purposes for the collection and use of the data at the point of collection;
● limit what is collected to only that required for specific processing;
● not keep the data beyond its specified use;
● provide a facility to correct or delete data; and
● protect the data

Further defined in Article 5.

GDPR – Article 5 – Principles relating to processing of personal data

1. Personal data shall be:

(a) processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’);

GDPR – Article 12 – Transparent information, communication and modalities for the exercise of the rights of the data subject

1. The controller shall take appropriate measures to provide any information referred to in Articles 13 and 14 and any communication under Articles 15 to 22 and 34 relating to processing to the data subject in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child. The information shall be provided in writing, or by other means, including, where appropriate, by electronic means. When requested by the data subject, the information may be provided orally, provided that the identity of the data subject is proven by other means.

Recital 40 In order for processing to be lawful, personal data should be processed on the basis of the consent of the data subject concerned or some other legitimate basis, laid down by law, either in this Regulation or in other Union or Member State law as referred to in this Regulation, including the necessity for compliance with the legal obligation to which the controller is subject or the necessity 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. Lawfulness of Data Processing For processing to be lawful, it must conform to one of the legitimate reasons defined in Article 6, or one of the other laws referenced in this document. GDPR – Article 5 – Principles relating to processing of personal data

1. Personal data shall be:

(f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’).

GDPR – Article 6 – Lawfulness of processing

1. Processing 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 his or her 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 or of another natural person;

(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;

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

Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks.

Recital 41 Where this Regulation refers to a legal basis or a legislative measure, this does not necessarily require a legislative act adopted by a parliament, without prejudice to requirements pursuant to the constitutional order of the Member State concerned. However, such a legal basis or legislative measure should be clear and precise and its application should be foreseeable to persons subject to it, in accordance with the case-law of the Court of Justice of the European Union (the ‘Court of Justice’) and the European Court of Human Rights. Application of ‘Legal Basis or ‘Legislative Measures’ The other documents or statements to which this Regulation refers do not have to be laws in and of themselves, however, it should be very clear to the affected parties how these references apply, and they in turn should be backed up by precedent from the Court of Justice of the European Union and the European Court of Human Rights.
Recital 42 Where processing is based on the data subject’s consent, the controller should be able to demonstrate that the data subject has given consent to the processing operation. In particular in the context of a written declaration on another matter, safeguards should ensure that the data subject is aware of the fact that and the extent to which consent is given. In accordance with Council Directive 93/13/EEC a declaration of consent pre-formulated by the controller should be provided in an intelligible and easily accessible form, using clear and plain language and it should not contain unfair terms. For consent to be informed, the data subject should be aware at least of the identity of the controller and the purposes of the processing for which the personal data are intended. Consent should not be regarded as freely given if the data subject has no genuine or free choice or is unable to refuse or withdraw consent without detriment. Burden of Proof and Requirements for Consent Where the controller is claiming consent as the lawful basis for processing, they must be able to demonstrate that the consent was given by the data subject, and that the request for consent complies with GDPR – Recital 39 and GDPR – Article 5.

Controller should not add ‘unfair’ terms to the pre-formulated consent forms per the Council Directive 93/13/EEC. e.g. Full functionality of a service is predicated on blanket consent for other processing types.

The data subject must know who the controller is and what the data will be used for in order for consent to be valid.

GDPR – Article 7 – Conditions for consent

2. If the data subject’s consent is given in the context of a written declaration which also concerns other matters, the request for consent shall be presented in a manner which is clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language. Any part of such a declaration which constitutes an infringement of this Regulation shall not be binding.

GDPR – Article 12 – Transparent information, communication and modalities for the exercise of the rights of the data subject

1. The controller shall take appropriate measures to provide any information referred to in Articles 13 and 14 and any communication under Articles 15 to 22 and 34 relating to processing to the data subject in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child. The information shall be provided in writing, or by other means, including, where appropriate, by electronic means. When requested by the data subject, the information may be provided orally, provided that the identity of the data subject is proven by other means.

COUNCIL DIRECTIVE 1993/13/EEC, 5-Apr-93

– on unfair terms in consumer contracts

Recital 43 In order to ensure that consent is freely given, consent should not provide a valid legal ground for the processing of personal data in a specific case where there is a clear imbalance between the data subject and the controller, in particular where the controller is a public authority and it is therefore unlikely that consent was freely given in all the circumstances of that specific situation. Consent is presumed not to be freely given if it does not allow separate consent to be given to different personal data processing operations despite it being appropriate in the individual case, or if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance. Freely Given Consent Data subjects cannot be ‘forced’ into providing consent where the subject either has no choice (e.g. to comply with an action dictated by a Government agency), or is significantly pressured to do so (e.g. consent given to process a bank loan cannot be tied to consent for something else, like marketing). GDPR – Article 7 – Conditions for consent

4. When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract.

Recital 44 Processing should be lawful where it is necessary in the context of a contract or the intention to enter into a contract. Performance of a Contract Self explanatory. GDPR – Article 6 – Lawfulness of processing

1. Processing shall be lawful only if and to the extent that at least one of the following applies:

(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;

Recital 45 Where processing is carried out in accordance with a legal obligation to which the controller is subject or where processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority, the processing should have a basis in Union or Member State law. This Regulation does not require a specific law for each individual processing. A law as a basis for several processing operations based on a legal obligation to which the controller is subject or where processing is necessary for the performance of a task carried out in the public interest or in the exercise of an official authority may be sufficient. It should also be for Union or Member State law to determine the purpose of processing. Furthermore, that law could specify the general conditions of this Regulation governing the lawfulness of personal data processing, establish specifications for determining the controller, the type of personal data which are subject to the processing, the data subjects concerned, the entities to which the personal data may be disclosed, the purpose limitations, the storage period and other measures to ensure lawful and fair processing. It should also be for Union or Member State law to determine whether the controller performing a task carried out in the public interest or in the exercise of official authority should be a public authority or another natural or legal person governed by public law, or, where it is in the public interest to do so, including for health purposes such as public health and social protection and the management of health care services, by private law, such as a professional association. Fulfilment of Legal Obligations Under Union or Member State Law A legal obligation overrides any basis for lawful processing as defined in Recital 40 and Article 6.

For example, a warrant served on a controller for access to information related to a data subject with whom they conduct business.

Fulfilment of the legal obligation does not have to be performed by a Government agent, but can be any natural or legal person, or professional association.

GDPR – Article 6 – Lawfulness of processing

1. Processing shall be lawful only if and to the extent that at least one of the following applies:

(c) processing is necessary for compliance with a legal obligation to which the controller is subject;

Recital 46 The processing of personal data should also be regarded to be lawful where it is necessary to protect an interest which is essential for the life of the data subject or that of another natural person. Processing of personal data based on the vital interest of another natural person should in principle take place only where the processing cannot be manifestly based on another legal basis. Some types of processing may serve both important grounds of public interest and the vital interests of the data subject as for instance when processing is necessary for humanitarian purposes, including for monitoring epidemics and their spread or in situations of humanitarian emergencies, in particular in situations of natural and man-made disasters. Vital Interests of the Data Subject Vital interest of the data subject or another natural person is another legal basis for processing. e.g. in life threatening situations.

Same applies for more ‘public interest’ issues such as natural and man-made disasters.

GDPR – Article 6 – Lawfulness of processing

1. Processing shall be lawful only if and to the extent that at least one of the following applies:

(d) processing is necessary in order to protect the vital interests of the data subject or of another natural person;

Recital 47 The legitimate interests of a controller, including those of a controller to which the personal data may be disclosed, or of a third party, may provide a legal basis for processing, provided that the interests or the fundamental rights and freedoms of the data subject are not overriding, taking into consideration the reasonable expectations of data subjects based on their relationship with the controller. Such legitimate interest could exist for example where there is a relevant and appropriate relationship between the data subject and the controller in situations such as where the data subject is a client or in the service of the controller. At any rate the existence of a legitimate interest would need careful assessment including whether a data subject can reasonably expect at the time and in the context of the collection of the personal data that processing for that purpose may take place. The interests and fundamental rights of the data subject could in particular override the interest of the data controller where personal data are processed in circumstances where data subjects do not reasonably expect further processing. Given that it is for the legislator to provide by law for the legal basis for public authorities to process personal data, that legal basis should not apply to the processing by public authorities in the performance of their tasks. The processing of personal data strictly necessary for the purposes of preventing fraud also constitutes a legitimate interest of the data controller concerned. The processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest. Overriding Legitimate Interest ‘Legitimate Interests’ of a controller can be a legal basis for processing if, and ONLY if, the fundamental rights and freedoms of the data subject(s) do not take precedence, and the processing is reasonably in-line with the existing controller/data subject relationship. The context needs careful evaluation.

Data processing by Government agencies will not fall under legitimate interests.

Fraud prevention is classified as legitimate interest.

Direct marketing might be considered legitimate interest depending on the circumstances.

See WP29 reference

GDPR – Article 6 – Lawfulness of processing

1. Processing shall be lawful only if and to the extent that at least one of the following applies:

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

Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks.

ARTICLE 29 DATA PROTECTION WORKING PARTY – 844/14/EN, 09-Apr-14

– Opinion 06/2014 on the notion of legitimate interests of the data controller under Article 7 of Directive 95/46/EC

Recital 48 Controllers that are part of a group of undertakings or institutions affiliated to a central body may have a legitimate interest in transmitting personal data within the group of undertakings for internal administrative purposes, including the processing of clients’ or employees’ personal data. The general principles for the transfer of personal data, within a group of undertakings, to an undertaking located in a third country remain unaffected. Legitimate Interest Within Group of Undertakings A controller can potentially claim legitimate interest in order to share personal data internally to the enterprise group, however, the restrictions on transfers to third countries still apply.  
Recital 49 The processing of personal data to the extent strictly necessary and proportionate for the purposes of ensuring network and information security, i.e. the ability of a network or an information system to resist, at a given level of confidence, accidental events or unlawful or malicious actions that compromise the availability, authenticity, integrity and confidentiality of stored or transmitted personal data, and the security of the related services offered by, or accessible via, those networks and systems, by public authorities, by computer emergency response teams (CERTs), computer security incident response teams (CSIRTs), by providers of electronic communications networks and services and by providers of security technologies and services, constitutes a legitimate interest of the data controller concerned. This could, for example, include preventing unauthorised access to electronic communications networks and malicious code distribution and stopping ‘denial of service’ attacks and damage to computer and electronic communication systems. Network and Information Security as a Legitimate Interest The processing of personal data to protect personal data or to respond to / recover from an incident can be considered legitimate interest. However, the processing must only be to the extent required for those functions.

Lays the groundwork for Article 32 – Security of Processing.

GDPR – Article 6 – Lawfulness of processing

1. Processing shall be lawful only if and to the extent that at least one of the following applies:

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

Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks.

Recital 50 The processing of personal data for purposes other than those for which the personal data were initially collected should be allowed only where the processing is compatible with the purposes for which the personal data were initially collected. In such a case, no legal basis separate from that which allowed the collection of the personal data is required. If the 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, Union or Member State law may determine and specify the tasks and purposes for which the further processing should be regarded as compatible and lawful. Further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes should be considered to be compatible lawful processing operations. The legal basis provided by Union or Member State law for the processing of personal data may also provide a legal basis for further processing. In order to ascertain whether a purpose of further processing is compatible with the purpose for which the personal data are initially collected, the controller, after having met all the requirements for the lawfulness of the original processing, should take into account, inter alia: any link between those purposes and the purposes of the intended further processing; the context in which the personal data have been collected, in particular the reasonable expectations of data subjects based on their relationship with the controller as to their further use; the nature of the personal data; the consequences of the intended further processing for data subjects; and the existence of appropriate safeguards in both the original and intended further processing operations.

Where the data subject has given consent or the processing is based on Union or Member State law which constitutes a necessary and proportionate measure in a democratic society to safeguard, in particular, important objectives of general public interest, the controller should be allowed to further process the personal data irrespective of the compatibility of the purposes. In any case, the application of the principles set out in this Regulation and in particular the information of the data subject on those other purposes and on his or her rights including the right to object, should be ensured. Indicating possible criminal acts or threats to public security by the controller and transmitting the relevant personal data in individual cases or in several cases relating to the same criminal act or threats to public security to a competent authority should be regarded as being in the legitimate interest pursued by the controller. However, such transmission in the legitimate interest of the controller or further processing of personal data should be prohibited if the processing is not compatible with a legal, professional or other binding obligation of secrecy.

Compatibility of Further Processing with Original Purpose Any processing of data that falls outside of the original legal basis for collection must be ‘compatible’ with the original legal basis. If a controller wants to repurpose the data they need to demonstrate the legal basis again.

Processing for reasons of public interest, archiving etc. are also considered lawful.

Where consent is provided, or again, in the case of public interest etc., further processing is permitted irrespective on the coactivity with the original purpose. All principles of the GDPR will be in full effect.

Transmission of personal data of those the controller suspects of a crime to law enforcement is permitted under legitimate interest. In this case there must be a binding obligation of secrecy that keeps the data confidential.

GDPR – Article 5 – Principles relating to processing of personal data

1. Personal data shall be:

(b) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall, in accordance with Article 89(1), not be considered to be incompatible with the initial purposes (‘purpose limitation’);

Recital 51 Personal data which are, by their nature, particularly sensitive in relation to fundamental rights and freedoms merit specific protection as the context of their processing could create significant risks to the fundamental rights and freedoms. Those personal data should include personal data revealing racial or ethnic origin, whereby the use of the term ‘racial origin’ in this Regulation does not imply an acceptance by the Union of theories which attempt to determine the existence of separate human races. The processing of photographs should not systematically be considered to be processing of special categories of personal data as they are covered by the definition of biometric data only when processed through a specific technical means allowing the unique identification or authentication of a natural person. Such personal data should not be processed, unless processing is allowed in specific cases set out in this Regulation, taking into account that Member States law may lay down specific provisions on data protection in order to adapt the application of the rules of this Regulation for compliance with a legal obligation or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. In addition to the specific requirements for such processing, the general principles and other rules of this Regulation should apply, in particular as regards the conditions for lawful processing. Derogations from the general prohibition for processing such special categories of personal data should be explicitly provided, inter alia, where the data subject gives his or her explicit consent or in respect of specific needs in particular where the processing is carried out in the course of legitimate activities by certain associations or foundations the purpose of which is to permit the exercise of fundamental freedoms. Special Protection for Sensitive Data The risks associated with categories of personal data which that are particularly sensitive are greater, so the protection must be greater too.

These special  categories of data include:
(a) racial or ethnic origin;
(b) political opinions;
(c) religious or philosophical beliefs;
(d) trade union membership;
(e) genetic data;
(f) biometric data;
(g) data concerning health;
(h) data concerning a natural person’s sex life;
(i) sexual orientation

Sensitive data should not be processed unless specifically permitted under the Regulation.

Member States are also permitted to make additional rules comply with a legal obligation, for public interest, or to exercise official authority.

Data subject consent and activities in support of exercising fundamental freedoms can also override this general prohibition.

GDPR – Article 9 – Processing of special categories of personal data

1. Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited.

Recital 52 Derogating from the prohibition on processing special categories of personal data should also be allowed when provided for in Union or Member State law and subject to suitable safeguards, so as to protect personal data and other fundamental rights, where it is in the public interest to do so, in particular processing personal data in the field of employment law, social protection law including pensions and for health security, monitoring and alert purposes, the prevention or control of communicable diseases and other serious threats to health. Such a derogation may be made for health purposes, including public health and the management of health-care services, especially in order to ensure the quality and cost-effectiveness of the procedures used for settling claims for benefits and services in the health insurance system, or for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes. A derogation should also allow the processing of such personal data where necessary for the establishment, exercise or defence of legal claims, whether in court proceedings or in an administrative or out-of-court procedure. Exceptions to the Prohibition on Processing Special Categories of Personal Data Member States can also make additional rules around special categories of data where it is in the public interest e.g.

(a) employment law;
(b) social protection law, including;
i) pensions;
ii) health security
iii) threats to health, e.g. communicable diseases.
(c) management of health services
(d) establishment, exercise or defence of legal claims.

GDPR – Article 9 – Processing of special categories of personal data
Recital 53 Special categories of personal data which merit higher protection should be processed for health-related purposes only where necessary to achieve those purposes for the benefit of natural persons and society as a whole, in particular in the context of the management of health or social care services and systems, including processing by the management and central national health authorities of such data for the purpose of quality control, management information and the general national and local supervision of the health or social care system, and ensuring continuity of health or social care and cross-border healthcare or health security, monitoring and alert purposes, or for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, based on Union or Member State law which has to meet an objective of public interest, as well as for studies conducted in the public interest in the area of public health. Therefore, this Regulation should provide for harmonised conditions for the processing of special categories of personal data concerning health, in respect of specific needs, in particular where the processing of such data is carried out for certain health-related purposes by persons subject to a legal obligation of professional secrecy. Union or Member State law should provide for specific and suitable measures so as to protect the fundamental rights and the personal data of natural persons. Member States should be allowed to maintain or introduce further conditions, including limitations, with regard to the processing of genetic data, biometric data or data concerning health. However, this should not hamper the free flow of personal data within the Union when those conditions apply to cross-border processing of such data. Special Categories of Personal Data Concerning Health Special categories of data can be processed for health-related reasons only if it benefits either the individual concerned, or is in the public interest to do so. Most particularly in the ongoing maintenance and management of national health and social care services/systems.

This includes processing for:

● quality control;
● management information;
● general national and local supervision of the health or social care system;
● ensuring continuity of health or social care and cross-border healthcare or health security;
● monitoring and alert purposes;
● archiving purposes in the public interest;
● scientific or historical research purposes;
● statistical purposes, based on Union or Member State law which has to meet an objective of public interest; and
● studies conducted in the public interest in the area of public health

The regulation should standardise the use of special categories of health data by those in the medical profession who have professional secrecy obligations (e.g. doctors) across the Union.

Fundamental rights of the data subjects must be protected by law.

The processing of genetic or biometric data should be further restricted as necessary.

GDPR – Article 9 – Processing of special categories of personal data
Recital 54 The processing of special categories of personal data may be necessary for reasons of public interest in the areas of public health without consent of the data subject. Such processing should be subject to suitable and specific measures so as to protect the rights and freedoms of natural persons. In that context, ‘public health’ should be interpreted as defined in Regulation (EC) No 1338/2008 of the European Parliament and of the Council, namely all elements related to health, namely health status, including morbidity and disability, the determinants having an effect on that health status, health care needs, resources allocated to health care, the provision of, and universal access to, health care as well as health care expenditure and financing, and the causes of mortality. Such processing of data concerning health for reasons of public interest should not result in personal data being processed for other purposes by third parties such as employers or insurance and banking companies. Processing of Sensitive Data in Public Health Sector Pubic interest may override the consent of the individual, but their rights a freedoms should be protected as much as possible.

Processing by third parties (e.g. banks, insurance companies etc.) will never constitute ‘public interest’.

REGULATION (EC) No 1338/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 16-Dec-08

– on Community statistics on public health and health and safety at work

Recital 55 Moreover, the processing of personal data by official authorities for the purpose of achieving the aims, laid down by constitutional law or by international public law, of officially recognised religious associations, is carried out on grounds of public interest. Public Interest in Processing by Official Authorities of Recognised Religious Communities Processing the personal data of ‘officially recognised religious associations’ is classified as in the public interest. GDPR – Article 9 – Processing of special categories of personal data

2. Paragraph 1 shall not apply if one of the following applies:

(d) processing is carried out in the course of its legitimate activities with appropriate safeguards by a foundation, association or any other not-for-profit body with a political, philosophical, religious or trade union aim and on condition that the processing relates solely to the members or to former members of the body or to persons who have regular contact with it in connection with its purposes and that the personal data are not disclosed outside that body without the consent of the data subjects;

Recital 56 Where in the course of electoral activities, the operation of the democratic system in a Member State requires that political parties compile personal data on people’s political opinions, the processing of such data may be permitted for reasons of public interest, provided that appropriate safeguards are established. ‘Electoral Activities’ Constitute Public Interest The collection of ‘political opinion’ personal data when related to electoral activities is permitted and classified as ‘in the public interest’, as long as appropriate safeguards are in place. GDPR – Article 9 – Processing of special categories of personal data

2. Paragraph 1 shall not apply if one of the following applies:

(d) processing is carried out in the course of its legitimate activities with appropriate safeguards by a foundation, association or any other not-for-profit body with a political, philosophical, religious or trade union aim and on condition that the processing relates solely to the members or to former members of the body or to persons who have regular contact with it in connection with its purposes and that the personal data are not disclosed outside that body without the consent of the data subjects;

Recital 57 If the personal data processed by a controller do not permit the controller to identify a natural person, the data controller should not be obliged to acquire additional information in order to identify the data subject for the sole purpose of complying with any provision of this Regulation. However, the controller should not refuse to take additional information provided by the data subject in order to support the exercise of his or her rights. Identification should include the digital identification of a data subject, for example through authentication mechanism such as the same credentials, used by the data subject to log-in to the on-line service offered by the data controller. Inability to Identify a Natural Person If a controller has personal data, but cannot determine the natural person to whom it belongs, they do not have to do anything else unless the data subject offers information that ties the two together. The controller cannot refuse take that information (for example, login credentials to an online service). GDPR – Article 11 – Processing which does not require identification

1. If the purposes for which a controller processes personal data do not or do no longer require the identification of a data subject by the controller, the controller shall not be obliged to maintain, acquire or process additional information in order to identify the data subject for the sole purpose of complying with this Regulation.

2. Where, in cases referred to in paragraph 1 of this Article, the controller is able to demonstrate that it is not in a position to identify the data subject, the controller shall inform the data subject accordingly, if possible. In such cases, Articles 15 to 20 shall not apply except where the data subject, for the purpose of exercising his or her rights under those articles, provides additional information enabling his or her identification.

Recital 58 The principle of transparency requires that any information addressed to the public or to the data subject be concise, easily accessible and easy to understand, and that clear and plain language and, additionally, where appropriate, visualisation be used. Such information could be provided in electronic form, for example, when addressed to the public, through a website. This is of particular relevance in situations where the proliferation of actors and the technological complexity of practice make it difficult for the data subject to know and understand whether, by whom and for what purpose personal data relating to him or her are being collected, such as in the case of online advertising. Given that children merit specific protection, any information and communication, where processing is addressed to a child, should be in such a clear and plain language that the child can easily understand. Principle of Transparency / Clear and Plain Language Any information on which a data subject is to make a decision must be:

● concise;
● easily accessible;
● easy to understand;
● is in clear and plain language; and
● where appropriate, includes visualisation

Especially if it is addressed to a child.

GDPR – Article 12 – Transparent information, communication and modalities for the exercise of the rights of the data subject

1. The controller shall take appropriate measures to provide any information referred to in Articles 13 and 14 and any communication under Articles 15 to 22 and 34 relating to processing to the data subject in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child. The information shall be provided in writing, or by other means, including, where appropriate, by electronic means. When requested by the data subject, the information may be provided orally, provided that the identity of the data subject is proven by other means.

Recital 59 Modalities should be provided for facilitating the exercise of the data subject’s rights under this Regulation, including mechanisms to request and, if applicable, obtain, free of charge, in particular, access to and rectification or erasure of personal data and the exercise of the right to object. The controller should also provide means for requests to be made electronically, especially where personal data are processed by electronic means. The controller should be obliged to respond to requests from the data subject without undue delay and at the latest within one month and to give reasons where the controller does not intend to comply with any such requests. ‘Modalities’ for the Exercise of the Data Subject’s Rights Modalities (i.e. written instructions and mechanisms) should be provided to enable data subjects to exercise their rights, most specifically:

● the right to rectification (GDPR – Article 16);
● the right to erasure (GDPR – Article 17);
● the right to objection (GDPR – Article 21)

The controller must provide these services free of charge, electronically (i.e. not via regular mail), and within 1 (one) month. If the controller does not intend to comply, they must fully justify the reasoning.

GDPR – Article 16 – Right to rectification
GDPR – Article 17 – Right to erasure (‘right to be forgotten’)
GDPR – Artilce 21 – Right to object
Recital 60 The principles of fair and transparent processing require that the data subject be informed of the existence of the processing operation and its purposes. The controller should provide the data subject with any further information necessary to ensure fair and transparent processing taking into account the specific circumstances and context in which the personal data are processed. Furthermore, the data subject should be informed of the existence of profiling and the consequences of such profiling. Where the personal data are collected from the data subject, the data subject should also be informed whether he or she is obliged to provide the personal data and of the consequences, where he or she does not provide such data. That information may be provided in combination with standardised icons in order to give in an easily visible, intelligible and clearly legible manner, a meaningful overview of the intended processing. Where the icons are presented electronically, they should be machine-readable. Fair and Transparent Processing Requires an Informed Data Subject Fairness and transparency of processing requires that the data subject is fully informed, and understands, what is being processed, how it is being processed, and for what purposes the data is required (per GDPR – Recital 58 and GDPR – Article 5(1)(a)).

If the data processing includes any for of ‘profiling’ (GDPR – Article 4(4)), this must be specifically addressed and the consequences explained in detail.

The data subject must receive clear instruction on whether or not the personal data being collected in obligatory, and what will happen if this is not provided (e.g. will the data subject receive a lower level of service). Council Directive 93/13/EEC will apply here.

Note: The use of ‘standardised icons’ is not yet defined, and is currently covered by a ‘delegated act’ under GDPR – Article 12(8)

GDPR – Article 5 – Principles relating to processing of personal data

1. Personal data shall be:

(a) processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’);

GDPR – Article 4 – Definitions

For the purposes of this Regulation:

(4) ‘profiling’ means any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in parti

COUNCIL DIRECTIVE 1993/13/EEC, 5-Apr-93

– on unfair terms in consumer contracts

GDPR – Article 12 – Transparent information, communication and modalities for the exercise of the rights of the data subject

8. The Commission shall be empowered to adopt delegated acts in accordance with Article 92 for the purpose of determining the information to be presented by the icons and the procedures for providing standardised icons.

Recital 61 The information in relation to the processing of personal data relating to the data subject should be given to him or her at the time of collection from the data subject, or, where the personal data are obtained from another source, within a reasonable period, depending on the circumstances of the case. Where personal data can be legitimately disclosed to another recipient, the data subject should be informed when the personal data are first disclosed to the recipient. Where the controller intends to process the personal data for a purpose other than that for which they were collected, the controller should provide the data subject prior to that further processing with information on that other purpose and other necessary information. Where the origin of the personal data cannot be provided to the data subject because various sources have been used, general information should be provided. Information on Processing Provided at Time of Collection The information detailed in Recital 60 should be provided to the data subject at the same time as the data is collected, or if the data is received from a third party, it should be provided within a ‘reasonable’ time. It will be up to the data controller with the direct relationship with the data subject to justify what reasonable in the specific scenario in question.

If a data controller has a lawful justification for disclosing personal data to a third party, the data subject must be notified immediately.

If the data controller intends to use the data for any other reasons other than those defined specifically on collection (per Recital 6), the controller must notify the data subject prior to that processing taking place.

It may not be possible for the data controller to provide full detail on where the personal data came from, but they should provide what they have.

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

1. Where personal data relating to a data subject are collected from the data subject, the controller shall, at the time when personal data are obtained, provide the data subject with all of the following information:

[Bullets a-f]

2. In addition to the information referred to in paragraph 1, the controller shall, at the time when personal data are obtained, provide the data subject with the following further information necessary to ensure fair and transparent processing:

[Bullets a-f]

3. Where the controller intends to further process the personal data for a purpose other than that for which the personal data were collected, the controller shall provide the data subject prior to that further processing with information on that other purpose and with any relevant further information as referred to in paragraph 2.

GDPR – Article 14 – Information to be provided where personal data have not been obtained from the data subject

1. Where personal data have not been obtained from the data subject, the controller shall provide the data subject with the following information:

[Bullets a-f]

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

(a) within a reasonable period after obtaining the personal data, but at the latest within one month, having regard to the specific circumstances in which the personal data are processed;

Recital 62 However, it is not necessary to impose the obligation to provide information where the data subject already possesses the information, where the recording or disclosure of the personal data is expressly laid down by law or where the provision of information to the data subject proves to be impossible or would involve a disproportionate effort. The latter could in particular be the case where processing is carried out for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes. In that regard, the number of data subjects, the age of the data and any appropriate safeguards adopted should be taken into consideration. Information on Processing Not Required The controller does not need to provide information to the data subject in 3 specific scenarios:

1. the data subject already has the information;
2. the recording or disclosure of the information is covered under a law; or
3. it is impossible or involves disproportionate effort

for example, for very old data, or data under significant access control safeguards.

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

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

GDPR – Article 14 – Information to be provided where personal data have not been obtained from the data subject

5. Paragraphs 1 to 4 shall not apply where and insofar as:

(a) the data subject already has the information;

(b) the provision of such information proves impossible or would involve a disproportionate effort, in particular for processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, subject to the conditions and safeguards referred to in Article 89(1) or in so far as the obligation referred to in paragraph 1 of this Article is likely to render impossible or seriously impair the achievement of the objectives of that processing. In such cases the controller shall take appropriate measures to protect the data subject’s rights and freedoms and legitimate interests, including making the information publicly available;

(c) obtaining or disclosure is expressly laid down by Union or Member State law to which the controller is subject and which provides appropriate measures to protect the data subject’s legitimate interests; or

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

At reasonable intervals, the data subject should also the right to receive communication on:

● the purposes for which the personal data are processed;
● the period for which the data will be processed;
● the recipients of the data; and
● the logic related to any profiling (in-line with Recital 60)

Where possible the controller should provide an online portal (or equivalent) that provides the data subject with direct access to their personal data✝

This access should not negatively affect others, but the information must be provided anyway.

If the controller has a large amount of data for different functions they can ask the data subject to specify to which function the request relates.

It can be assumed from Recital 59 that this portal (modality) should also function as the electronic means by which the data subject can exercise their rights erasure, objection etc.

GDPR – Article 15 – Right of access by the data subject
Recital 64 The controller should use all reasonable measures to verify the identity of a data subject who requests access, in particular in the context of online services and online identifiers. A controller should not retain personal data for the sole purpose of being able to react to potential requests. Data Subject Identity Verification Self explanatory.  
Recital 65 A data subject should have the right to have personal data concerning him or her rectified and a ‘right to be forgotten’ where the retention of such data infringes this Regulation or Union or Member State law to which the controller is subject. In particular, a data subject should have the right to have his or her personal data erased and no longer processed where the personal data are no longer necessary in relation to the purposes for which they are collected or otherwise processed, where a data subject has withdrawn his or her consent or objects to the processing of personal data concerning him or her, or where the processing of his or her personal data does not otherwise comply with this Regulation. That right is relevant in particular where the data subject has given his or her consent as a child and is not fully aware of the risks involved by the processing, and later wants to remove such personal data, especially on the internet. The data subject should be able to exercise that right notwithstanding the fact that he or she is no longer a child. However, the further retention of the personal data should be lawful where it is necessary, for exercising the right of freedom of expression and information, for compliance with a legal obligation, for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims. Right to Erasure & Rectification Data subjects have the right to have their personal data corrected or erased altogether it the processing of it infringes this, or any other Member State law.

The data subject can invoke the right to erasure where:
● the personal data is not longer relevant to the reason it was originally collected and processed;
● the data subject has withdrawn their consent✝; and
● it has become apparent that the processing does not comply with the GDPR

Reasons for refusing the right to be forgotten include:
● exercising the right of freedom of expression and information
● compliance with a legal obligation
● tasks carried out in the public interest or in the exercise of official authority vested in the controller
● public interest in the area of public health
● archiving purposes in the public interest
● scientific or historical research purposes or statistical purposes
● establishment, exercise or defence of legal claims

Particular where the data subject gave consent as a child as was not fully aware of the implications.

GDPR – Article 16 – Right to rectification

The data subject shall have the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her. Taking into account the purposes of the processing, the data subject shall have the right to have incomplete personal data completed, including by means of providing a supplementary statement.

GDPR – Article 17 – Right to erasure (‘right to be forgotten’)
Recital 66 To strengthen the right to be forgotten in the online environment, the right to erasure should also be extended in such a way that a controller who has made the personal data public should be obliged to inform the controllers which are processing such personal data to erase any links to, or copies or replications of those personal data. In doing so, that controller should take reasonable steps, taking into account available technology and the means available to the controller, including technical measures, to inform the controllers which are processing the personal data of the data subject’s request. Extension of Right to Erasure If a controller has shared personal data publicly (i.e. not kept confidential) they should inform any other controllers who process that data to erase all links to and versions of that data.

Where possible, the controller should inform the other controllers of the data subject’s request.

There’s no way for a controller to know who is processing public data, so I assume this is via some kind of online notice?

GDPR – Article 17 – Right to erasure (‘right to be forgotten’)

2. Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data.

Recital 67 Methods by which to restrict the processing of personal data could include, inter alia, temporarily moving the selected data to another processing system, making the selected personal data unavailable to users, or temporarily removing published data from a website. In automated filing systems, the restriction of processing should in principle be ensured by technical means in such a manner that the personal data are not subject to further processing operations and cannot be changed. The fact that the processing of personal data is restricted should be clearly indicated in the system. Methods of Processing Restriction Self explanatory.

This has significant implications on back-ups.

Recital 68 To further strengthen the control over his or her own data, where the processing of personal data is carried out by automated means, the data subject should also be allowed to receive personal data concerning him or her which he or she has provided to a controller in a structured, commonly used, machine-readable and interoperable format, and to transmit it to another controller. Data controllers should be encouraged to develop interoperable formats that enable data portability. That right should apply where the data subject provided the personal data on the basis of his or her consent or the processing is necessary for the performance of a contract. It should not apply where processing is based on a legal ground other than consent or contract. By its very nature, that right should not be exercised against controllers processing personal data in the exercise of their public duties. It should therefore not apply where the processing of the personal data is necessary for compliance with a legal obligation to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of an official authority vested in the controller. The data subject’s right to transmit or receive personal data concerning him or her should not create an obligation for the controllers to adopt or maintain processing systems which are technically compatible. Where, in a certain set of personal data, more than one data subject is concerned, the right to receive the personal data should be without prejudice to the rights and freedoms of other data subjects in accordance with this Regulation. Furthermore, that right should not prejudice the right of the data subject to obtain the erasure of personal data and the limitations of that right as set out in this Regulation and should, in particular, not imply the erasure of personal data concerning the data subject which have been provided by him or her for the performance of a contract to the extent that and for as long as the personal data are necessary for the performance of that contract. Where technically feasible, the data subject should have the right to have the personal data transmitted directly from one controller to another. Data Portability Where:

– the data subject has provided explicit consent, or processing is in support of a contract; and
– the processing is by automated means

…the data subject has the right to obtain their data from a controller in a format that is easily ingested into another controller’s system (e.g. no proprietary or bespoke file formats, or formats that require some form of optical character recognition).

Data controllers should agree on a standardised format for personal data transfers (e.g. XML, CSV, and so on), and where possible, send the data directly from one controller to another.

This does not apply to controllers who are performing lawful processing:

● in the exercise of their public duties;
● in compliance with a legal obligation;
● in the public interest; and
● in the exercise of an official authority vested in the controller (by law enforcement for example)

The controller does not have to maintain technology compatible with either data subjects or other controllers.

Where the transfer of a data subject’s information inextricably involves the transfer of personal data of another data subject, all rights and freedoms of the additional data subject(s) must not be infringed.

A data subject should have the ability to have all personal data not supporting a contract erased without putting the service of that contract at risk.

GDPR – Article 20 – Right to data portability
Recital 69 Where personal data might lawfully be processed because 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 on grounds of the legitimate interests of a controller or a third party, a data subject should, nevertheless, be entitled to object to the processing of any personal data relating to his or her particular situation. It should be for the controller to demonstrate that its compelling legitimate interest overrides the interests or the fundamental rights and freedoms of the data subject. Right to Object Where a controller is relying on grounds of public interest, exercise of official authority or legitimates interest, the burden of proof is on the controller to show that they are allowed to reject any objection that a data subject makes about processing. GDPR – Article 21 – Right to object

1. The data subject shall have the right to object, on grounds relating to his or her particular situation, at any time to processing of personal data concerning him or her which is based on point (e) or (f) of Article 6(1), including profiling based on those provisions. The controller shall no longer process the personal data unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims.

Recital 70 Where personal data are processed for the purposes of direct marketing, the data subject should have the right to object to such processing, including profiling to the extent that it is related to such direct marketing, whether with regard to initial or further processing, at any time and free of charge. That right should be explicitly brought to the attention of the data subject and presented clearly and separately from any other information. Right to Object – Direct Marketing Self explanatory. GDPR – Article 21 – Right to object

2. Where personal data are processed for direct marketing purposes, the data subject shall have the right to object at any time to processing of personal data concerning him or her for such marketing, which includes profiling to the extent that it is related to such direct marketing.

3. Where the data subject objects to processing for direct marketing purposes, the personal data shall no longer be processed for such purposes.

4. At the latest at the time of the first communication with the data subject, the right referred to in paragraphs 1 and 2 shall be explicitly brought to the attention of the data subject and shall be presented clearly and separately from any other information.

Recital 71 The data subject should have the right not to be subject to a decision, which may include a measure, evaluating personal aspects relating to him or her which is based solely on automated processing and which produces legal effects concerning him or her or similarly significantly affects him or her, such as automatic refusal of an online credit application or e-recruiting practices without any human intervention. Such processing includes ‘profiling’ that consists of any form of automated processing of personal data evaluating the personal aspects relating to a natural person, in particular to analyse or predict aspects concerning the data subject’s performance at work, economic situation, health, personal preferences or interests, reliability or behaviour, location or movements, where it produces legal effects concerning him or her or similarly significantly affects him or her. However, decision-making based on such processing, including profiling, should be allowed where expressly authorised by Union or Member State law to which the controller is subject, including for fraud and tax-evasion monitoring and prevention purposes conducted in accordance with the regulations, standards and recommendations of Union institutions or national oversight bodies and to ensure the security and reliability of a service provided by the controller, or necessary for the entering or performance of a contract between the data subject and a controller, or when the data subject has given his or her explicit consent. In any case, such processing should be subject to suitable safeguards, which should include specific information to the data subject and the right to obtain human intervention, to express his or her point of view, to obtain an explanation of the decision reached after such assessment and to challenge the decision. Such measure should not concern a child.

In order to ensure fair and transparent processing in respect of the data subject, taking into account the specific circumstances and context in which the personal data are processed, the controller should use appropriate mathematical or statistical procedures for the profiling, implement technical and organisational measures appropriate to ensure, in particular, that factors which result in inaccuracies in personal data are corrected and the risk of errors is minimised, secure personal data in a manner that takes account of the potential risks involved for the interests and rights of the data subject and that prevents, inter alia, discriminatory effects on natural persons on the basis of racial or ethnic origin, political opinion, religion or beliefs, trade union membership, genetic or health status or sexual orientation, or that result in measures having such an effect. Automated decision-making and profiling based on special categories of personal data should be allowed only under specific conditions.

Profiling A data subject can object to any automated decisioning (i.e. no human intervention) that has a legal effect, particularly when the ‘profiling’ includes analysis or predictions related to the data subject’s:

● performance at work;
● economic situation;
● health;
● personal preferences or interests;
● reliability or behaviour; or
● location or movements

However, the controller can continue the profiling activity if it:

● is authorised by Union or State law (e.g. for fraud or tax evasion monitoring);
● ensures the security and reliability of a service provided by the controller;
● necessary for the performance of a contract; and/or
● performed with the explicit consent of the data subject

Regardless of the above, the data subject has the right to suitable safeguards that include:

● specific information to the data subject;
● the right to obtain human intervention;
● the right to express his or her point of view;
● the right to obtain an explanation of the decision reached after such assessment; and
● to challenge the decision

Profiling must never be performed on children.

To ensure fair and transparent processing, the controller should:

● use appropriate mathematical or statistical procedures for the profiling
● implement technical and organisational measures appropriate to ensure that
□ factors which result in inaccuracies in personal data are corrected;
□ the risk of errors is minimised;
□ secure personal data in a manner that takes account of the potential risks

Profiling based on ‘special categories’ of personal data should only be allowed under specific conditions (see GDPR – Article 9).

Particularly when those risk involve potential discriminatory effects on natural persons (e.g. racial or ethnic origin, political opinion, religion or beliefs, trade union membership, genetic or health status or sexual orientation)

See Article 29 Working Party guidelines:  Guidelines on Automated individual decision- making and Profiling for the purposes of Regulation 2016/679

GDPR – Article 22 – Automated individual decision-making, including profiling

1. The data subject shall have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her.

2. Paragraph 1 shall not apply if the decision:

(b) is authorised by Union or Member State law to which the controller is subject and which also lays down suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests; or

GDPR – Article 9 – Processing of special categories of personal data

1. Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited.

Guidelines on Automated individual decision- making and Profiling for the purposes of Regulation 2016/679
Recital 72 Profiling is subject to the rules of this Regulation governing the processing of personal data, such as the legal grounds for processing or data protection principles. The European Data Protection Board established by this Regulation (the ‘Board’) should be able to issue guidance in that context. Profiling Supervised by the European Data Protection Board Self explanatory. GDPR – Article 70 – Tasks of the Board

(f) issue guidelines, recommendations and best practices in accordance with point (e) of this paragraph for further specifying the criteria and conditions for decisions based on profiling pursuant to Article 22(2);

Recital 73 Restrictions concerning specific principles and the rights of information, access to and rectification or erasure of personal data, the right to data portability, the right to object, decisions based on profiling, as well as the communication of a personal data breach to a data subject and certain related obligations of the controllers may be imposed by Union or Member State law, as far as necessary and proportionate in a democratic society to safeguard public security, including the protection of human life especially in response to natural or manmade disasters, the prevention, investigation and prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security, or of breaches of ethics for regulated professions, other important objectives of general public interest of the Union or of a Member State, in particular an important economic or financial interest of the Union or of a Member State, the keeping of public registers kept for reasons of general public interest, further processing of archived personal data to provide specific information related to the political behaviour under former totalitarian state regimes or the protection of the data subject or the rights and freedoms of others, including social protection, public health and humanitarian purposes. Those restrictions should be in accordance with the requirements set out in the Charter and in the European Convention for the Protection of Human Rights and Fundamental Freedoms. Restriction of Rights & Principles Specific rights and principles as set out in this Regulation, including:

● access to and rectification or erasure of personal data;
● the right to data portability;
● the right to object against decisions based on profiling;
● the communication of a personal data breach to a data subject;
● certain related obligations of the controllers

…must be balanced against the safeguarding of public security in scenarios including the:

● protection of human life especially in response to natural or manmade disasters;
● prevention, investigation and prosecution of criminal offences;
● execution of criminal penalties;
● prevention of threats to public security;
● breach of ethics by regulated professions;
● other objectives of general public interest of the Union or a Member State, including:
□ important economic or financial interests;
□ the keeping of public registers;
□ further processing of archived personal data to provide specific information related to the
political behaviour under former totalitarian state regimes;
□ the protection of the data subject or the rights and freedoms of others, including social
protection, public health and humanitarian purposes.

Basically the Union or Member States can make any ruling they want with regard the data subject’s rights as long as the ruling complies with their interpretation of the two listed documents.

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (2000/C 364/01)
European Convention for the Protection of Human Rights and Fundamental Freedoms
Recital 74 The responsibility and liability of the controller for any processing of personal data carried out by the controller or on the controller’s behalf should be established. In particular, the controller should be obliged to implement appropriate and effective measures and be able to demonstrate the compliance of processing activities with this Regulation, including the effectiveness of the measures. Those measures should take into account the nature, scope, context and purposes of the processing and the risk to the rights and freedoms of natural persons. Responsibility and Liability of the Controller Responsibility and liability of the controller must be established between the controller and all other parties, including processors and the data subject. It is the controller who must demonstrate compliance with this Regulation.

The effectiveness of the measures taken to achieve compliance must be ‘appropriate’ to the risk to personal data.

GDPR – Article 24 – Responsibility of the controller

1. Taking into account the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons, the controller shall implement appropriate technical and organisational measures to ensure and to be able to demonstrate that processing is performed in accordance with this Regulation. Those measures shall be reviewed and updated where necessary.

2. Where proportionate in relation to processing activities, the measures referred to in paragraph 1 shall include the implementation of appropriate data protection policies by the controller.

Recital 75 The risk to the rights and freedoms of natural persons, of varying likelihood and severity, may result from personal data processing which could lead to physical, material or non-material damage, in particular: where the processing may give rise to discrimination, identity theft or fraud, financial loss, damage to the reputation, loss of confidentiality of personal data protected by professional secrecy, unauthorised reversal of pseudonymisation, or any other significant economic or social disadvantage; where data subjects might be deprived of their rights and freedoms or prevented from exercising control over their personal data; where personal data are processed which reveal racial or ethnic origin, political opinions, religion or philosophical beliefs, trade union membership, and the processing of genetic data, data concerning health or data concerning sex life or criminal convictions and offences or related security measures; where personal aspects are evaluated, in particular analysing or predicting aspects concerning performance at work, economic situation, health, personal preferences or interests, reliability or behaviour, location or movements, in order to create or use personal profiles; where personal data of vulnerable natural persons, in particular of children, are processed; or where processing involves a large amount of personal data and affects a large number of data subjects. Risks to the Rights and Freedoms of Natural Persons Risk to the rights and freedoms of natural persons may result from personal data processing which could lead to physical, material or non-material damage, in particular where:

● the processing may give rise to:
□ discrimination;
□ identity theft or fraud;
□ financial loss;
□ damage to the reputation;
□ loss of confidentiality of personal data protected by professional secrecy;
□ unauthorised reversal of pseudonymisation;
□ any other significant economic or social disadvantage

● data subjects might be deprived of their rights and freedoms or prevented from exercising control over their personal data;

● personal data are processed which reveal, or concern the processing of sensitive personal data;

● the following aspects of a natural person are processed to create profiles or predictions:
□ performance at work;
□ economic situation;
□ health;
□ personal preferences or interests;
□ reliability or behaviour;
□ location or movements

● personal data of vulnerable natural persons, in particular of children, are processed;

● processing involves a large amount of personal data and affects a large number of data subjects.

Recital 76 The likelihood and severity of the risk to the rights and freedoms of the data subject should be determined by reference to the nature, scope, context and purposes of the processing. Risk should be evaluated on the basis of an objective assessment, by which it is established whether data processing operations involve a risk or a high risk. Objective Risk Assessment The likelihood and severity of the risk to the rights and freedoms of the data subject (as detailed in Recital 75) should undergo a full and objective risk assessment (per Article 35), bearing in mind the nature, scope, context and purposes of the processing.

The level of risk should be determined, with ‘high risk’ as a trigger for additional review and authorisation. See Article 29 Working Party (A29WP) guidelines for additional information.

Guidelines on Data Protection Impact Assessment (DPIA) and determining whether processing is “likely to result in a high risk” for the purposes of Regulation 2016/679, wp248rev.01
GDPR – Article 35 – Data protection impact assessment
Recital 77 Guidance on the implementation of appropriate measures and on the demonstration of compliance by the controller or the processor, especially as regards the identification of the risk related to the processing, their assessment in terms of origin, nature, likelihood and severity, and the identification of best practices to mitigate the risk, could be provided in particular by means of approved codes of conduct, approved certifications, guidelines provided by the Board or indications provided by a data protection officer. The Board may also issue guidelines on processing operations that are considered to be unlikely to result in a high risk to the rights and freedoms of natural persons and indicate what measures may be sufficient in such cases to address such risk. Code of Conduct A Code of Conduct (Article 40) can be used to demonstrate compliance with this Regulation, and that appropriate measures have been taken to:

1. identify the risk related to processing;
2. assess the origin, nature, likelihood and severity of the risks; and
3. identify the best practices in place to mitigate that risk;

In place of a code of conduct, you can also use:

● approved certifications (Articles 42 and 43);
● guidelines provided by the Board (under Articles 64 and 70); and/or
● indications (recommendations based on assessment) provided by the Data Protection Officer (role defined in Article 37)

The Board can also issue guidelines on low-risk processing operations and provide a ‘blanket’ list of measures to make compliance less of a burden.

GDPR – Article 37 – Designation of the data protection officer
GDPR – Article 40 – Code of conduct
GDPR – Article 42 – Certification
GDPR – Article 43 – Certification bodies
GDPR – Article 64 – Opinion of the Board
GDPR – Article 70 – Tasks of the Board
Recital 78 The protection of the rights and freedoms of natural persons with regard to the processing of personal data require that appropriate technical and organisational measures be taken to ensure that the requirements of this Regulation are met. In order to be able to demonstrate compliance with this Regulation, the controller should adopt internal policies and implement measures which meet in particular the principles of data protection by design and data protection by default. Such measures could consist, inter alia, of minimising the processing of personal data, pseudonymising personal data as soon as possible, transparency with regard to the functions and processing of personal data, enabling the data subject to monitor the data processing, enabling the controller to create and improve security features. When developing, designing, selecting and using applications, services and products that are based on the processing of personal data or process personal data to fulfil their task, producers of the products, services and applications should be encouraged to take into account the right to data protection when developing and designing such products, services and applications and, with due regard to the state of the art, to make sure that controllers and processors are able to fulfil their data protection obligations. The principles of data protection by design and by default should also be taken into consideration in the context of public tenders. Data Protection by Design and Default (DPbD2) Intrinsic to the demonstration of compliance with this regulation, the principles of Data Protection by Design, and Data Protection by Default must be adopted in both policy and practice. This can include:

● minimising the processing of personal data (GDPR – Article 5(1)(c));
● pseudonimisation (GDPR – Article 32(1)(a));
● transparency of processing (GDPR – Article 5(1)(a));
● enabling the data subject to monitor processing (GDPR – Recital 63); and
● enabling the controller to create improve security features

All vendors of products that will be used in the processing of personal data should keep these 2 principles in mind when developing their products/services to allow their clients to meet their obligations under this Regulation.

The concept of DPbD2 should be included in all vendor management and due diligence processes (e.g. RPI, RFP process etc.).

GDPR – Article 5 – Principles relating to processing of personal data

1. Personal data shall be:

(a) processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’);

(c) adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’);

GDPR – Article 25 – Data protection by design and by default
GDPR – Article 32 – Security of processing

1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the controller and the processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:

(a) the pseudonymisation and encryption of personal data;

GDPR – Recital 63 – ‘Data Subject’s Right of Access’
Recital 79 The protection of the rights and freedoms of data subjects as well as the responsibility and liability of controllers and processors, also in relation to the monitoring by and measures of supervisory authorities, requires a clear allocation of the responsibilities under this Regulation, including where a controller determines the purposes and means of the processing jointly with other controllers or where a processing operation is carried out on behalf of a controller. Clear allocation of the responsibilities There must be a clear allocation of responsibility and liability between controllers and processors, and between joint controllers. This should include who is primarily accountable to the supervisory authorities. GDPR – Recital 82 – Right to compensation and liability
Recital 80 Where a controller or a processor not established in the Union is processing personal data of data subjects who are in the Union whose processing activities are related to the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union, or to the monitoring of their behaviour as far as their behaviour takes place within the Union, the controller or the processor should designate a representative, unless the processing is occasional, does not include processing, on a large scale, of special categories of personal data or the processing of personal data relating to criminal convictions and offences, and is unlikely to result in a risk to the rights and freedoms of natural persons, taking into account the nature, context, scope and purposes of the processing or if the controller is a public authority or body.

The representative should act on behalf of the controller or the processor and may be addressed by any supervisory authority. The representative should be explicitly designated by a written mandate of the controller or of the processor to act on its behalf with regard to its obligations under this Regulation. The designation of such a representative does not affect the responsibility or liability of the controller or of the processor under this Regulation. Such a representative should perform its tasks according to the mandate received from the controller or processor, including cooperating with the competent supervisory authorities with regard to any action taken to ensure compliance with this Regulation. The designated representative should be subject to enforcement proceedings in the event of non-compliance by the controller or processor.

Designation of a ‘representative’ where a controller or a processor is not established in the Union Any controller or processor not established in EU, but who:

1. offers goods or services (regardless of payment acceptance) to data subject in the EU; or
2. monitors the behaviour of data subjects within the boundaries of the EU.

…must designate a representative to act on their behalf who may be addressed by any supervisory authority. Unless the processing:

● is occasional;
● does not include processing on a large scale of special categories of personal data;
● does not include processing of data relating to criminal convictions and offences;
● is low risk; or
● is performed by a public authority or body

The representative must be under a written mandate from the controller or processor to officially act on its behalf, as well as perform its services in full compliance with this Regulation, including cooperating directly with supervisory authorities.

The designated representative must be obligated to be subject to enforcement proceedings, however, the controller or processor is still fully responsible and liable.

GDPR – 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, regardless of whether the processing takes place in the Union or not.

2. This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to:

(a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or

(b) the monitoring of their behaviour as far as their behaviour takes place within the Union.

3. This Regulation applies to the processing of personal data by a controller not established in the Union, but in a place where Member State law applies by virtue of public international law.

Recital 81 To ensure compliance with the requirements of this Regulation in respect of the processing to be carried out by the processor on behalf of the controller, when entrusting a processor with processing activities, the controller should use only processors providing sufficient guarantees, in particular in terms of expert knowledge, reliability and resources, to implement technical and organisational measures which will meet the requirements of this Regulation, including for the security of processing. The adherence of the processor to an approved code of conduct or an approved certification mechanism may be used as an element to demonstrate compliance with the obligations of the controller. The carrying-out of processing by a processor should be governed by a contract or other legal act under Union or Member State law, binding the processor to the controller, setting out the subject-matter and duration of the processing, the nature and purposes of the processing, the type of personal data and categories of data subjects, taking into account the specific tasks and responsibilities of the processor in the context of the processing to be carried out and the risk to the rights and freedoms of the data subject. The controller and processor may choose to use an individual contract or standard contractual clauses which are adopted either directly by the Commission or by a supervisory authority in accordance with the consistency mechanism and then adopted by the Commission. After the completion of the processing on behalf of the controller, the processor should, at the choice of the controller, return or delete the personal data, unless there is a requirement to store the personal data under Union or Member State law to which the processor is subject. 3rd Party Compliance with the ‘Obligations of the Controller’ Controllers must conduct due diligence on any processors it uses and only contract with processors who are, through their technical and organisational controls, fully capable of demonstrating compliance to this Regulation. For example, by an approved code of conduct or an approved certification mechanism.

The processing itself should be governed by a contract (or equivalent), and include the:

● subject-matter and duration of the processing;
● nature and purposes of the processing; and
● type of personal data and categories of data subjects.

Whatever contractual vehicle is used; individual or Commission approved clauses, it must be developed in accordance with the consistency mechanism (Article 63).

Once the contract is complete, the processor should, at the choice of the controller, either return or delete the personal data, or store the personal data if required to do so by Union or Member State law.

GDPR – Article 63 – Consistency mechanism

In order to contribute to the consistent application of this Regulation throughout the Union, the supervisory authorities shall cooperate with each other and, where relevant, with the Commission, through the consistency mechanism as set out in this Section.

Recital 82 In order to demonstrate compliance with this Regulation, the controller or processor should maintain records of processing activities under its responsibility. Each controller and processor should be obliged to cooperate with the supervisory authority and make those records, on request, available to it, so that it might serve for monitoring those processing operations. Maintenance of records of processing activities All controllers and processors (See Article 30(5) for exclusions) must maintain a record of their processing activities as per Article 30(1)(a-g).

These record must be made available to the supervisory authority for monitoring under Articles 31 and 57.

GDPR – Article 30 – Records of processing activities
GDPR – Article 31 – Cooperation with the supervisory authority
GDPR – Article 57 – Tasks
Recital 83 In order to maintain security and to prevent processing in infringement of this Regulation, the controller or processor should evaluate the risks inherent in the processing and implement measures to mitigate those risks, such as encryption. Those measures should ensure an appropriate level of security, including confidentiality, taking into account the state of the art and the costs of implementation in relation to the risks and the nature of the personal data to be protected. In assessing data security risk, consideration should be given to the risks that are presented by personal data processing, such as accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed which may in particular lead to physical, material or non-material damage. Risk Mitigation – Encryption Controller should conduct risk assessments on data processing and reduce risks wherever possible e.g. by encryption.

Several risk factors should be taken into account in the assessment including:

● accidental or unlawful destruction
● loss
● alteration
● unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed which may in particular lead to harm to the data subject.

[Ed. If the cost of encrypting it outweighs the value of the data or the penalties tied to its loss, it’s likely you’re better off not having it in the first place.]
GDPR – Article 32 – Security of processing

1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the controller and the processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:

(a) the pseudonymisation and encryption of personal data;

Recital 84 In order to enhance compliance with this Regulation where processing operations are likely to result in a high risk to the rights and freedoms of natural persons, the controller should be responsible for the carrying-out of a data protection impact assessment to evaluate, in particular, the origin, nature, particularity and severity of that risk. The outcome of the assessment should be taken into account when determining the appropriate measures to be taken in order to demonstrate that the processing of personal data complies with this Regulation. Where a data-protection impact assessment indicates that processing operations involve a high risk which the controller cannot mitigate by appropriate measures in terms of available technology and costs of implementation, a consultation of the supervisory authority should take place prior to the processing. Data Protection Impact Assessment Where it is suspected that the processing of personal data in a specific scenario could introduce high risks, those risks must be closely examined and appropriate measures put in place to address them.

Where the risk cannot be mitigated, a full business case must be produced and presented to the supervisory authority BEFORE the processing takes place (per Articles 36(1) and 58(3)(a)).

Guidelines on Data Protection Impact Assessment (DPIA) and determining whether processing is “likely to result in a high risk” for the purposes of Regulation 2016/679, wp248rev.01
GDPR – Article 35 – Data protection impact assessment
GDPR – Article 36 – Prior consultation

1. The controller shall consult the supervisory authority prior to processing where a data protection impact assessment under Article 35 indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk.

GDPR – Article 58 – Powers

3. Each supervisory authority shall have all of the following authorisation and advisory powers:

(a) to advise the controller in accordance with the prior consultation procedure referred to in Article 36;

Recital 85 A personal data breach may, if not addressed in an appropriate and timely manner, result in physical, material or non-material damage to natural persons such as loss of control over their personal data or limitation of their rights, discrimination, identity theft or fraud, financial loss, unauthorised reversal of pseudonymisation, damage to reputation, loss of confidentiality of personal data protected by professional secrecy or any other significant economic or social disadvantage to the natural person concerned. Therefore, as soon as the controller becomes aware that a personal data breach has occurred, the controller should notify the personal data breach to the supervisory authority without undue delay and, where feasible, not later than 72 hours after having become aware of it, unless the controller is able to demonstrate, in accordance with the accountability principle, that the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons. Where such notification cannot be achieved within 72 hours, the reasons for the delay should accompany the notification and information may be provided in phases without undue further delay. Notification of ‘Personal Data Breach’ A personal data breach can have significant negative impact on natural persons, including:

● physical;
● material, such as;
□ identity theft or fraud;
□ financial loss;
● non-material, such as;
□ discrimination;
□ damage to reputation;

Therefore, where feasible, the controller should notify the supervisory authority within 72 hours after having become aware of it, unless the breach is unlikely to have ANY of the above effects.

If the notification cannot be performed in 72 hours, this must be fully explained, and the remaining information made available as soon as it is available.

GDPR – Article 33 – Notification of a personal data breach to the supervisory authority
Recital 86 The controller should communicate to the data subject a personal data breach, without undue delay, where that personal data breach is likely to result in a high risk to the rights and freedoms of the natural person in order to allow him or her to take the necessary precautions. The communication should describe the nature of the personal data breach as well as recommendations for the natural person concerned to mitigate potential adverse effects. Such communications to data subjects should be made as soon as reasonably feasible and in close cooperation with the supervisory authority, respecting guidance provided by it or by other relevant authorities such as law-enforcement authorities. For example, the need to mitigate an immediate risk of damage would call for prompt communication with data subjects whereas the need to implement appropriate measures against continuing or similar personal data breaches may justify more time for communication. Personal Data Breach Notification to Data Subject To give time to take appropriate precautions, controllers should alert data subjects ‘without undue delay’ if a data breach is highly likely to impact their rights and freedoms.

The alert communication should be made in cooperation with the supervisory authority, include guidance provide by ‘relevant authorities’ (if applicable), and contain at least the following information as described in Article 33(3)(b), (c) and (d):

(b) communicate the name and contact details of the data protection officer or other contact point where more information can be obtained;

(c) describe the likely consequences of the personal data breach;

(d) describe the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.

GDPR – Article 33 – Notification of a personal data breach to the supervisory authority

3. The notification referred to in paragraph 1 shall at least:

(b) communicate the name and contact details of the data protection officer or other contact point where more information can be obtained;

(c) describe the likely consequences of the personal data breach;

(d) describe the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.

GDPR – Article 34 – Communication of a personal data breach to the data subject
Recital 87 It should be ascertained whether all appropriate technological protection and organisational measures have been implemented to establish immediately whether a personal data breach has taken place and to inform promptly the supervisory authority and the data subject. The fact that the notification was made without undue delay should be established taking into account in particular the nature and gravity of the personal data breach and its consequences and adverse effects for the data subject. Such notification may result in an intervention of the supervisory authority in accordance with its tasks and powers laid down in this Regulation. Appropriate Technological Protection and Organisational Measures for Breach Determination It should be determined whether the breach is real or suspected by looking at what measures have been used to protect the data (e.g. hashing, encryption).

The term “undue delay” can be seen as a sliding scale and directly influence by the severity if the impact on the data subjects. The higher the risk or potential impact, the faster should be the notification.

Per Articles 57 (Tasks) and 58 (Powers), the supervisory authority reserves the right to intervene as it sees fit in order to protect the rights and freedoms of the data subject(s).

[Ed. “Appropriate technological protection and organisational measures” in a breach scenario suggests that all of the following must not only be in place, but demonstrably so:

● all appropriate detective controls (e.g. logging and monitoring, IDS, etc.);
● incident response procedures;
● forensic investigation capability; and
● breach notification procedures.]

GDPR – Article 5 – Principles relating to processing of personal data

1. Personal data shall be:

(f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’).

GDPR – Article 57 – Tasks

1. Without prejudice to other tasks set out under this Regulation, each supervisory authority shall on its territory:

(a) monitor and enforce the application of this Regulation;

GDPR – Article 58 – Powers

2. Each supervisory authority shall have all of the following corrective powers:

(e) to order the controller to communicate a personal data breach to the data subject;

Recital 88 In setting detailed rules concerning the format and procedures applicable to the notification of personal data breaches, due consideration should be given to the circumstances of that breach, including whether or not personal data had been protected by appropriate technical protection measures, effectively limiting the likelihood of identity fraud or other forms of misuse. Moreover, such rules and procedures should take into account the legitimate interests of law-enforcement authorities where early disclosure could unnecessarily hamper the investigation of the circumstances of a personal data breach. Fotmat and Procedures of Breach Notification Rules for notification should take into account the context and therefore the possible harm, both to the data subject and to any other related activity such as detection of crime.
Recital 89 Directive 95/46/EC provided for a general obligation to notify the processing of personal data to the supervisory authorities. While that obligation produces administrative and financial burdens, it did not in all cases contribute to improving the protection of personal data. Such indiscriminate general notification obligations should therefore be abolished, and replaced by effective procedures and mechanisms which focus instead on those types of processing operations which are likely to result in a high risk to the rights and freedoms of natural persons by virtue of their nature, scope, context and purposes. Such types of processing operations may be those which in, particular, involve using new technologies, or are of a new kind and where no data protection impact assessment has been carried out before by the controller, or where they become necessary in the light of the time that has elapsed since the initial processing. Notification of High Risk Processing to the Supervisory Authorities Directive 95/46/EC required that any organisation processing personal data should notify their supervisory authority (e.g. the ICO in the UK, the CNIL in France etc). However, it was unclear how this contributed to the general principles and objectives of the Directive.

Therefore the GDPR is focusing on those processing operations that are of high risk. For example they:

● involve using new technologies (e.g. big data analytics);
● are of a new kind and where no data protection impact assessment has been carried out before by the controller (e.g. new services with no DPIA conducted);
● become necessary in the light of the time that has elapsed since the initial processing (i.e new threats have evolved).

DIRECTIVE 95/46/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 24-Oct-95

– on the protection of individuals with regard to the processing of personal data and on the free movement of such data

Recital 90 In such cases, a data protection impact assessment should be carried out by the controller prior to the processing in order to assess the particular likelihood and severity of the high risk, taking into account the nature, scope, context and purposes of the processing and the sources of the risk. That impact assessment should include, in particular, the measures, safeguards and mechanisms envisaged for mitigating that risk, ensuring the protection of personal data and demonstrating compliance with this Regulation. Data Protection Impact Assessment for High Risk Processing For high risk processing scenarios, a data protection impact assessment must be conducted prior to processing and mitigating controls defined. GDPR – Article 35 – Data protection impact assessment
Recital 91 This should in particular apply to large-scale processing operations which aim to process a considerable amount of personal data at regional, national or supranational level and which could affect a large number of data subjects and which are likely to result in a high risk, for example, on account of their sensitivity, where in accordance with the achieved state of technological knowledge a new technology is used on a large scale as well as to other processing operations which result in a high risk to the rights and freedoms of data subjects, in particular where those operations render it more difficult for data subjects to exercise their rights. A data protection impact assessment should also be made where personal data are processed for taking decisions regarding specific natural persons following any systematic and extensive evaluation of personal aspects relating to natural persons based on profiling those data or following the processing of special categories of personal data, biometric data, or data on criminal convictions and offences or related security measures. A data protection impact assessment is equally required for monitoring publicly accessible areas on a large scale, especially when using optic-electronic devices or for any other operations where the competent supervisory authority considers that the processing is likely to result in a high risk to the rights and freedoms of data subjects, in particular because they prevent data subjects from exercising a right or using a service or a contract, or because they are carried out systematically on a large scale. The processing of personal data should not be considered to be on a large scale if the processing concerns personal data from patients or clients by an individual physician, other health care professional or lawyer. In such cases, a data protection impact assessment should not be mandatory. DPIA for ‘Large-Scale’ Processing There is no definition of what ‘large scale’ actually means. The need for a DPIA should be a matter of judgement for a DPO taking into account:

● number of data subjects
● sensitivity of data
● new technology
● difficulty for the data subject to exercise their rights.

Also, where processing involves decision making based on:

● profiling, special categories of data; biometric data; data on criminal convictions/security offences
● involves large scale surveillance (e.g. CCTV) in a public area, and the data subjects cannot exercise their right through a service or a contract.

Where data of a single physician, other health care professional or lawyer is processes, this is not classified as large scale.

GDPR – Article 35 – Data protection impact assessment
Recital 92 There are circumstances under which it may be reasonable and economical for the subject of a data protection impact assessment to be broader than a single project, for example where public authorities or bodies intend to establish a common application or processing platform or where several controllers plan to introduce a common application or processing environment across an industry sector or segment or for a widely used horizontal activity. DPIA – Subject ‘Broadening’ Self explanatory.  
Recital 93 In the context of the adoption of the Member State law on which the performance of the tasks of the public authority or public body is based and which regulates the specific processing operation or set of operations in question, Member States may deem it necessary to carry out such assessment prior to the processing activities. DPIA – Member State Member States can mandate as to additional circumstances when a DPIA is required.
Recital 94 Where a data protection impact assessment indicates that the processing would, in the absence of safeguards, security measures and mechanisms to mitigate the risk, result in a high risk to the rights and freedoms of natural persons and the controller is of the opinion that the risk cannot be mitigated by reasonable means in terms of available technologies and costs of implementation, the supervisory authority should be consulted prior to the start of processing activities. Such high risk is likely to result from certain types of processing and the extent and frequency of processing, which may result also in a realisation of damage or interference with the rights and freedoms of the natural person. The supervisory authority should respond to the request for consultation within a specified period. However, the absence of a reaction of the supervisory authority within that period should be without prejudice to any intervention of the supervisory authority in accordance with its tasks and powers laid down in this Regulation, including the power to prohibit processing operations. As part of that consultation process, the outcome of a data protection impact assessment carried out with regard to the processing at issue may be submitted to the supervisory authority, in particular the measures envisaged to mitigate the risk to the rights and freedoms of natural persons. DPIA – Consulting with the Supervisory Authority Where the safeguards, security measures and mechanisms to mitigate risk to high risk processing scenarios are either not in place, or cannot be put in place for technical or cost limitations, the supervisory authority must be consulted prior to processing taking place.

The supervisory authority should respond to a request for consultation within 8 (eight) weeks with “written advice to the controller and, where applicable to the processor”. However, if they don’t respond within that time, their ‘Powers’ under Article 58 are not affected.

THE DPIA and detail of the mitigating controls should be submitted as part of the consultation process.

GDPR – Article 36 – Prior consultation

2. Where the supervisory authority is of the opinion that the intended processing referred to in paragraph 1 would infringe this Regulation, in particular where the controller has insufficiently identified or mitigated the risk, the supervisory authority shall, within period of up to eight weeks of receipt of the request for consultation, provide written advice to the controller and, where applicable to the processor, and may use any of its powers referred to in Article 58. That period may be extended by six weeks, taking into account the complexity of the intended processing. The supervisory authority shall inform the controller and, where applicable, the processor, of any such extension within one month of receipt of the request for consultation together with the reasons for the delay. Those periods may be suspended until the supervisory authority has obtained information it has requested for the purposes of the consultation.

GDPR – Article 58 – Powers

(f) to impose a temporary or definitive limitation including a ban on processing;

Recital 95 The processor should assist the controller, where necessary and upon request, in ensuring compliance with the obligations deriving from the carrying out of data protection impact assessments and from prior consultation of the supervisory authority. DPIA – Processors Should Help Controllers Self explanatory.
Recital 96 A consultation of the supervisory authority should also take place in the course of the preparation of a legislative or regulatory measure which provides for the processing of personal data, in order to ensure compliance of the intended processing with this Regulation and in particular to mitigate the risk involved for the data subject. Consultation with the Supervisory Authority for Legistative or Regulatory Measures Self explanatory. GDPR – Article 36 – Prior consultation

4. Member States shall consult the supervisory authority during the preparation of a proposal for a legislative measure to be adopted by a national parliament, or of a regulatory measure based on such a legislative measure, which relates to processing.

Recital 97 Where the processing is carried out by a public authority, except for courts or independent judicial authorities when acting in their judicial capacity, where, in the private sector, processing is carried out by a controller whose core activities consist of processing operations that require regular and systematic monitoring of the data subjects on a large scale, or where the core activities of the controller or the processor consist of processing on a large scale of special categories of personal data and data relating to criminal convictions and offences, a person with expert knowledge of data protection law and practices should assist the controller or processor to monitor internal compliance with this Regulation. In the private sector, the core activities of a controller relate to its primary activities and do not relate to the processing of personal data as ancillary activities. The necessary level of expert knowledge should be determined in particular according to the data processing operations carried out and the protection required for the personal data processed by the controller or the processor. Such data protection officers, whether or not they are an employee of the controller, should be in a position to perform their duties and tasks in an independent manner. Data Protection Officer Where the processing is carried out by:

1. a public authority; or

2. a controller whose core activities include processing on a large scale of special categories of personal data and data relating to criminal convictions and offences

…they should appoint a data protection officer to monitor internal compliance with this Regulation.

The DPO should have a level of expert knowledge commensurate with the data processing operations in question, and must carry out their duties with full independence.

[Note: WP29’s ‘Guidelines on Data Protection Officers (‘DPOs’)’ addresses the concepts of ‘core activities’, ‘ancilliary activities’, ‘regular and systematic monitoring’, and ‘large scale’.]
GDPR – Article 37 – Designation of the data protection officer

1. The controller and the processor shall designate a data protection officer in any case where:

(a) the processing is carried out by a public authority or body, except for courts acting in their judicial capacity;

(b) the core activities of the controller or the processor consist of processing operations which, by virtue of their nature, their scope and/or their purposes, require regular and systematic monitoring of data subjects on a large scale; or

(c) the core activities of the controller or the processor consist of processing on a large scale of special categories of data pursuant to Article 9 and personal data relating to criminal convictions and offences referred to in Article 10.

Guidelines on Data Protection Officers (‘DPO’)
Recital 98 Associations or other bodies representing categories of controllers or processors should be encouraged to draw up codes of conduct, within the limits of this Regulation, so as to facilitate the effective application of this Regulation, taking account of the specific characteristics of the processing carried out in certain sectors and the specific needs of micro, small and medium enterprises. In particular, such codes of conduct could calibrate the obligations of controllers and processors, taking into account the risk likely to result from the processing for the rights and freedoms of natural persons. Code of Conduct – ‘Associations’ (and Other Representative Bodies) Self explanatory. GDPR – Article 40 – Codes of conduct

“2. Associations and other bodies representing categories of controllers or processors may prepare codes of conduct, or amend or extend such codes, for the purpose of specifying the application of this Regulation, such as with regard to:”

Recital 99 When drawing up a code of conduct, or when amending or extending such a code, associations and other bodies representing categories of controllers or processors should consult relevant stakeholders, including data subjects where feasible, and have regard to submissions received and views expressed in response to such consultations. Association Code of Conduct – Stakeholder Consultation Self explanatory.
Recital 100 In order to enhance transparency and compliance with this Regulation, the establishment of certification mechanisms and data protection seals and marks should be encouraged, allowing data subjects to quickly assess the level of data protection of relevant products and services. Certification Mechanisms, Data Protection Seals and Marks Self explanatory, and will be the purview of the Commission or the Member State supervisory authority. GDPR – Article 43 – Certification bodies
Recital 101 Flows of personal data to and from countries outside the Union and international organisations are necessary for the expansion of international trade and international cooperation. The increase in such flows has raised new challenges and concerns with regard to the protection of personal data. However, when personal data are transferred from the Union to controllers, processors or other recipients in third countries or to international organisations, the level of protection of natural persons ensured in the Union by this Regulation should not be undermined, including in cases of onward transfers of personal data from the third country or international organisation to controllers, processors in the same or another third country or international organisation. In any event, transfers to third countries and international organisations may only be carried out in full compliance with this Regulation. A transfer could take place only if, subject to the other provisions of this Regulation, the conditions laid down in the provisions of this Regulation relating to the transfer of personal data to third countries or international organisations are complied with by the controller or processor. Data Transfers to Non-Union Countries The level of protection of natural persons ensured by this Regulation must be equalled or exceeded for the transfer of data to third countries or non-Union international organisations, including all onward transfers (e.g. sub-contractors).

These transfers must be protected in full compliance with this Regulation, and comply with all relevant provisions (e.g. Articles 46, 47, and 49).

GDPR – Article 46 – Transfers subject to appropriate safeguards
GDPR – Article 47 – Binding corporate rules
GDPR – Article 49 – Derogations for specific situations
Recital 102 This Regulation is without prejudice to international agreements concluded between the Union and third countries regulating the transfer of personal data including appropriate safeguards for the data subjects. Member States may conclude international agreements which involve the transfer of personal data to third countries or international organisations, as far as such agreements do not affect this Regulation or any other provisions of Union law and include an appropriate level of protection for the fundamental rights of the data subjects. Existing Agreements to Non-Union Countries This Regulation does not negate existing international agreements, or prevent the prevent the creation of new agreements, concluded between 2 Member States as long as the agreements are in compliance with this Regulation (e.g. Privacy Shield). GDPR – Article 96 – Relationship with previously concluded Agreements
Recital 103 The Commission may decide with effect for the entire Union that a third country, a territory or specified sector within a third country, or an international organisation, offers an adequate level of data protection, thus providing legal certainty and uniformity throughout the Union as regards the third country or international organisation which is considered to provide such level of protection. In such cases, transfers of personal data to that third country or international organisation may take place without the need to obtain any further authorisation. The Commission may also decide, having given notice and a full statement setting out the reasons to the third country or international organisation, to revoke such a decision. Adequacy of Levels of Data Protection Self explanatory. GDPR – Article 45 – Transfers on the basis of an adequacy decision

1. A transfer of personal data to a third country or an international organisation may take place where the Commission has decided that the third country, a territory or one or more specified sectors within that third country, or the international organisation in question ensures an adequate level of protection. Such a transfer shall not require any specific authorisation.

Recital 104 In line with the fundamental values on which the Union is founded, in particular the protection of human rights, the Commission should, in its assessment of the third country, or of a territory or specified sector within a third country, take into account how a particular third country respects the rule of law, access to justice as well as international human rights norms and standards and its general and sectoral law, including legislation concerning public security, defence and national security as well as public order and criminal law. The adoption of an adequacy decision with regard to a territory or a specified sector in a third country should take into account clear and objective criteria, such as specific processing activities and the scope of applicable legal standards and legislation in force in the third country. The third country should offer guarantees ensuring an adequate level of protection essentially equivalent to that ensured within the Union, in particular where personal data are processed in one or several specific sectors. In particular, the third country should ensure effective independent data protection supervision and should provide for cooperation mechanisms with the Member States’ data protection authorities, and the data subjects should be provided with effective and enforceable rights and effective administrative and judicial redress. Third Country Guarantees of Adequacy In making a decision of adequacy, the Commission should take into account the third country’s views on;

● respect for the rule of law;
● access to justice as well as international human rights norms and standards; and
● its general and sectoral law, including:
□ legislation concerning public security;
□ defence and national security; and
□ public order and criminal law.

Through:

● effective independent data protection supervision;
● cooperation mechanisms with the Member States’ data protection authorities; and
● effective and enforceable rights, and effective administrative and judicial redress for data subjects

…the third country should offer guarantees ensuring an adequate level of protection essentially equivalent to that ensured within the Union.

GDPR – Article 45 – Transfers on the basis of an adequacy decision
Recital 105 Apart from the international commitments the third country or international organisation has entered into, the Commission should take account of obligations arising from the third country’s or international organisation’s participation in multilateral or regional systems in particular in relation to the protection of personal data, as well as the implementation of such obligations. In particular, the third country’s accession to the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to the Automatic Processing of Personal Data and its Additional Protocol should be taken into account. The Commission should consult the Board when assessing the level of protection in third countries or international organisations. Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data In addition to the criterial defined in Recital 104, the Commission should consider the thirds county’s commitment to other obligations related to data protection.

In particular, has the third country agreed to the terms as defined in the Council of Europe Convention of 28 January 1981 and its Additional Protocol.

European Treaty Series – No. 108

Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data

Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data regarding supervisory authorities and transborder data flows
Recital 106 The Commission should monitor the functioning of decisions on the level of protection in a third country, a territory or specified sector within a third country, or an international organisation, and monitor the functioning of decisions adopted on the basis of Article 25(6) or Article 26(4) of Directive 95/46/EC. In its adequacy decisions, the Commission should provide for a periodic review mechanism of their functioning. That periodic review should be conducted in consultation with the third country or international organisation in question and take into account all relevant developments in the third country or international organisation. For the purposes of monitoring and of carrying out the periodic reviews, the Commission should take into consideration the views and findings of the European Parliament and of the Council as well as of other relevant bodies and sources. The Commission should evaluate, within a reasonable time, the functioning of the latter decisions and report any relevant findings to the Committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council (1) as established under this Regulation, to the European Parliament and to the Council. Review of Third Country ‘Functioning of Decisions’ Related to Levels of Protection The Commission should both monitor the third country’s ‘functioning of decisions’ (per Article 45(4)) related to data protection, and periodically review (every 4 years at a minimum per Article 45(3)) that third country to ensure that any ‘relevant developments’ have been appropriately taken into account.

The Commission should take into account the views and findings of all relevant sources, and report any findings to the European Parliament and to the Council.

DIRECTIVE 95/46/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 24-Oct-95

– on the protection of individuals with regard to the processing of personal data and on the free movement of such data

* Article 25(6) – Principles
* Article 26(4) – Derogations

REGULATION (EU) No 182/2011 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 16-Feb-11

– laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers

GDPR – Article 45 – Transfers on the basis of an adequacy decision

3. The Commission, after assessing the adequacy of the level of protection, may decide, by means of implementing act, that a third country, a territory or one or more specified sectors within a third country, or an international organisation ensures an adequate level of protection within the meaning of paragraph 2 of this Article. The implementing act shall provide for a mechanism for a periodic review, at least every four years, which shall take into account all relevant developments in the third country or international organisation. The implementing act shall specify its territorial and sectoral application and, where applicable, identify the supervisory authority or authorities referred to in point (b) of paragraph 2 of this Article. The implementing act shall be adopted in accordance with the examination procedure referred to in Article 93(2).

4. The Commission shall, on an ongoing basis, monitor developments in third countries and international organisations that could affect the functioning of decisions adopted pursuant to paragraph 3 of this Article and decisions adopted on the basis of Article 25(6) of Directive 95/46/EC.

Recital 107 The Commission may recognise that a third country, a territory or a specified sector within a third country, or an international organisation no longer ensures an adequate level of data protection. Consequently the transfer of personal data to that third country or international organisation should be prohibited, unless the requirements in this Regulation relating to transfers subject to appropriate safeguards, including binding corporate rules, and derogations for specific situations are fulfilled. In that case, provision should be made for consultations between the Commission and such third countries or international organisations. The Commission should, in a timely manner, inform the third country or international organisation of the reasons and enter into consultations with it in order to remedy the situation. Amendment, Revocation and Suspension of Adequacy Decisions Per Article 45(5): “The Commission shall, where available information reveals, in particular following the review referred to in paragraph 3 of this Article, that a third country, a territory or one or more specified sectors within a third country, or an international organisation no longer ensures an adequate level of protection within the meaning of paragraph 2 of this Article, to the extent necessary, repeal, amend or suspend the decision referred to in paragraph 3 of this Article by means of implementing acts without retro-active effect. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 93(2).”

Note: GDPR Article 93(2) refers directly to Article 5 of REGULATION EU 182/2011

GDPR – Article 45 – Transfers on the basis of an adequacy decision

5. The Commission shall, where available information reveals, in particular following the review referred to in paragraph 3 of this Article, that a third country, a territory or one or more specified sectors within a third country, or an international organisation no longer ensures an adequate level of protection within the meaning of paragraph 2 of this Article, to the extent necessary, repeal, amend or suspend the decision referred to in paragraph 3 of this Article by means of implementing acts without retro-active effect. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 93(2).

On duly justified imperative grounds of urgency, the Commission shall adopt immediately applicable implementing acts in accordance with the procedure referred to in Article 93(3).

REGULATION (EU) No 182/2011 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 16-Feb-11

– laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers

Article 5 – Examination procedure

Recital 108 In the absence of an adequacy decision, the controller or processor should take measures to compensate for the lack of data protection in a third country by way of appropriate safeguards for the data subject. Such appropriate safeguards may consist of making use of binding corporate rules, standard data protection clauses adopted by the Commission, standard data protection clauses adopted by a supervisory authority or contractual clauses authorised by a supervisory authority. Those safeguards should ensure compliance with data protection requirements and the rights of the data subjects appropriate to processing within the Union, including the availability of enforceable data subject rights and of effective legal remedies, including to obtain effective administrative or judicial redress and to claim compensation, in the Union or in a third country. They should relate in particular to compliance with the general principles relating to personal data processing, the principles of data protection by design and by default. Transfers may also be carried out by public authorities or bodies with public authorities or bodies in third countries or with international organisations with corresponding duties or functions, including on the basis of provisions to be inserted into administrative arrangements, such as a memorandum of understanding, providing for enforceable and effective rights for data subjects. Authorisation by the competent supervisory authority should be obtained when the safeguards are provided for in administrative arrangements that are not legally binding. Safeguards to Ensure Adequacy In the absence of an adequacy decision, the controller or processor can use the following safeguards to compensate for the lack of data protection in a third country:

● Binding corporate rules (Article 47);
● Standard data protection clauses adopted by the Commission;
● Standard data protection clauses adopted by a supervisory authority; and/or
● Contractual clauses authorised by a supervisory authority (Article 57(1)(j))

These safeguards must include:

● the availability of enforceable data subject rights and of effective legal remedies;
● effective administrative or judicial redress;
● claim compensation (Article 82); and
● compliance with the DPbD2 principles (Article 25)

Transfers can also be carried out between Union and non-Union public bodies through a memorandum of understanding as long as they are legally binding. If they are not legally binding, authorisation by the competent supervisory authority should be obtained.

GDPR – Article 25 – Data protection by design and default
GDPR – Article 47 – Binding corporate rules
GDPR – Article 57 – Tasks

1. Without prejudice to other tasks set out under this Regulation, each supervisory authority shall on its territory:

(j) adopt standard contractual clauses referred to in Article 28(8) and in point (d) of Article 46(2);

GDPR – Article 82 – Right to compensation and liability
Recital 109 The possibility for the controller or processor to use standard data-protection clauses adopted by the Commission or by a supervisory authority should prevent controllers or processors neither from including the standard data-protection clauses in a wider contract, such as a contract between the processor and another processor, nor from adding other clauses or additional safeguards provided that they do not contradict, directly or indirectly, the standard contractual clauses adopted by the Commission or by a supervisory authority or prejudice the fundamental rights or freedoms of the data subjects. Controllers and processors should be encouraged to provide additional safeguards via contractual commitments that supplement standard protection clauses. Safeguards Above and Beyond Standard Protection Clauses Standard data-protection clauses adopted by the Commission or by a supervisory authority can be used for ‘blanket’ contracts and should not prevent the introduction of additional safeguards (which is recommended) as long as neither of these things contradicts on original standard data-protection clause. In other words, the standard contractual clauses can be incorporated into a wider agreement provided the standard clauses are not contradicted by the wider agreement.
Recital 110 A group of undertakings, or a group of enterprises engaged in a joint economic activity, should be able to make use of approved binding corporate rules for its international transfers from the Union to organisations within the same group of undertakings, or group of enterprises engaged in a joint economic activity, provided that such corporate rules include all essential principles and enforceable rights to ensure appropriate safeguards for transfers or categories of transfers of personal data. Binding Corporate Rules in Groups of Undertakings Companies within the same enterprise group (or undertaking) can use binding corporate rules to transfer personal data between themselves internationally as long as all appropriate safeguards are in place.

Same applies to a group of enterprises engaged in a joint economic activity.

GDPR – Article 47 – Binding corporate rules
Recital 111 Provisions should be made for the possibility for transfers in certain circumstances where the data subject has given his or her explicit consent, where the transfer is occasional and necessary in relation to a contract or a legal claim, regardless of whether in a judicial procedure or whether in an administrative or any out-of-court procedure, including procedures before regulatory bodies. Provision should also be made for the possibility for transfers where important grounds of public interest laid down by Union or Member State law so require or where the transfer is made from a register established by law and intended for consultation by the public or persons having a legitimate interest. In the latter case, such a transfer should not involve the entirety of the personal data or entire categories of the data contained in the register and, when the register is intended for consultation by persons having a legitimate interest, the transfer should be made only at the request of those persons or, if they are to be the recipients, taking into full account the interests and fundamental rights of the data subject. Provision for Transfer Regardless of Judicial Procedure Where data subjects have given consent, or when a transfer is “occasional and necessary in relation to a contract or legal claim”, provision should be made to allow this regardless of whether it’s part of a judicial procedure, an administarrtive of out-of-court procedure (including procedures before regulatory bodies).

Provision should also be made when transfer is in the public interest, or is made from a register established by law (e.g. no-fly list) and intended for consultation by the public (or persons having a legitimate interest).

If the transfer is to a person with legitimate interest, they should only receive what they need to fulfill that interest, and only when requested.

Full account must be taken to the rights of the data subject(s).

Recital 112 Those derogations should in particular apply to data transfers required and necessary for important reasons of public interest, for example in cases of international data exchange between competition authorities, tax or customs administrations, between financial supervisory authorities, between services competent for social security matters, or for public health, for example in the case of contact tracing for contagious diseases or in order to reduce and/or eliminate doping in sport. A transfer of personal data should also be regarded as lawful where it is necessary to protect an interest which is essential for the data subject’s or another person’s vital interests, including physical integrity or life, if the data subject is incapable of giving consent. In the absence of an adequacy decision, Union or Member State law may, for important reasons of public interest, expressly set limits to the transfer of specific categories of data to a third country or an international organisation. Member States should notify such provisions to the Commission. Any transfer to an international humanitarian organisation of personal data of a data subject who is physically or legally incapable of giving consent, with a view to accomplishing a task incumbent under the Geneva Conventions or to complying with international humanitarian law applicable in armed conflicts, could be considered to be necessary for an important reason of public interest or because it is in the vital interest of the data subject. Provision of Transfer for Reasons of Public Interest or Vital Interest to the Data Subject The derogation listed in Recital 111 should particularly apply to the following reasons of public interest:

● international data exchange between competition authorities, tax or customs administration;
● between financial supervisory authorities;
● between services competent for social security matters, or public health

Transfer of data is also lawful if it in the vital interest of a data subject who is unable to provide consent.

In the absense of a adequacy decison, Union or Member States can, for the sake of public interest, set limits on the transfer of data to third countries or international organisations. They must provide these details to the Commission.

Transfer of personal data to a humanitarian organisation without the data subject’s consent is permissible if it’s in their vital interest and in connection to a task related to the Geneva Convention or other law applicable in armed conflicts.

THE GENEVA CONVENTIONS OF 12 AUGUST 1949
Recital 113 Transfers which can be qualified as not repetitive and that only concern a limited number of data subjects, could also be possible for the purposes of the compelling legitimate interests pursued by the controller, when those interests are not overridden by the interests or rights and freedoms of the data subject and when the controller has assessed all the circumstances surrounding the data transfer. The controller should give particular consideration to the nature of the personal data, the purpose and duration of the proposed processing operation or operations, as well as the situation in the country of origin, the third country and the country of final destination, and should provide suitable safeguards to protect fundamental rights and freedoms of natural persons with regard to the processing of their personal data. Such transfers should be possible only in residual cases where none of the other grounds for transfer are applicable. For scientific or historical research purposes or statistical purposes, the legitimate expectations of society for an increase of knowledge should be taken into consideration. The controller should inform the supervisory authority and the data subject about the transfer. Provision of Transfer when no Other Grounds for Transfer Apply Transfers that do not match any other legal criteria as defined above may still be permissible as long as they:

● are not repetitive;
● only concern a limited number of data subjects;
● do not override the interests or rights and freedoms of the data subject;
● when the controller has assessed all the circumstances surrounding the data transfer. particularly the;
□ nature of the personal data;
□ purpose and duration of the proposed processing operation or operations; and
□ situation in the country of origin, the third country and the country of final destination
● inform the supervisory authority and the data subject about the transfer

GDPR – Article 49 – Derogations for specific situations

Where a transfer could not be based on a provision in Article 45 or 46, including the provisions on binding corporate rules, and none of the derogations for a specific situation referred to in the first subparagraph of this paragraph is applicable, a transfer to a third country or an international organisation may take place only if the transfer is not repetitive, concerns only a limited number of data subjects, is necessary for the purposes of compelling legitimate interests pursued by the controller which are not overridden by the interests or rights and freedoms of the data subject, and the controller has assessed all the circumstances surrounding the data transfer and has on the basis of that assessment provided suitable safeguards with regard to the protection of personal data. The controller shall inform the supervisory authority of the transfer. The controller shall, in addition to providing the information referred to in Articles 13 and 14, inform the data subject of the transfer and on the compelling legitimate interests pursued.

Recital 114 In any case, where the Commission has taken no decision on the adequate level of data protection in a third country, the controller or processor should make use of solutions that provide data subjects with enforceable and effective rights as regards the processing of their data in the Union once those data have been transferred so that that they will continue to benefit from fundamental rights and safeguards. Safeguards for Transfers to Third Countries Without an Adequacy Determination Regulatory solutions as defined in Recital 108. GDPR – Article 46 – Transfers subject to appropriate safeguards

1. In the absence of a decision pursuant to Article 45(3), a controller or processor may transfer personal data to a third country or an international organisation only if the controller or processor has provided appropriate safeguards, and on condition that enforceable data subject rights and effective legal remedies for data subjects are available.

Recital 115 Some third countries adopt laws, regulations and other legal acts which purport to directly regulate the processing activities of natural and legal persons under the jurisdiction of the Member States. This may include judgments of courts or tribunals or decisions of administrative authorities in third countries requiring a controller or processor to transfer or disclose personal data, and which are not based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third country and the Union or a Member State. The extraterritorial application of those laws, regulations and other legal acts may be in breach of international law and may impede the attainment of the protection of natural persons ensured in the Union by this Regulation. Transfers should only be allowed where the conditions of this Regulation for a transfer to third countries are met. This may be the case, inter alia, where disclosure is necessary for an important ground of public interest recognised in Union or Member State law to which the controller is subject. Potential Indequacy of the Extraterritorial Application of Third Country Laws Some third country laws claim to have extraterritorial effect that would require disclosure to those countries, but are not based on legitimate international treaties. Transfers should only be allowed to those countries where the conditions of this Regulation can be guaranteed. GDPR – Article 48 – Transfers or disclosures not authorised by Union law

Any judgment of a court or tribunal and any decision of an administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may only be recognised or enforceable in any manner if based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third country and the Union or a Member State, without prejudice to other grounds for transfer pursuant to this Chapter.

Recital 116 When personal data moves across borders outside the Union it may put at increased risk the ability of natural persons to exercise data protection rights in particular to protect themselves from the unlawful use or disclosure of that information. At the same time, supervisory authorities may find that they are unable to pursue complaints or conduct investigations relating to the activities outside their borders. Their efforts to work together in the cross-border context may also be hampered by insufficient preventative or remedial powers, inconsistent legal regimes, and practical obstacles like resource constraints. Therefore, there is a need to promote closer cooperation among data protection supervisory authorities to help them exchange information and carry out investigations with their international counterparts. For the purposes of developing international cooperation mechanisms to facilitate and provide international mutual assistance for the enforcement of legislation for the protection of personal data, the Commission and the supervisory authorities should exchange information and cooperate in activities related to the exercise of their powers with competent authorities in third countries, based on reciprocity and in accordance with this Regulation. Member Cooperation to Facilitate International Mutual Assistance The cross-border movement of personal data outside the Union can prevent natural persons from exercising their rights, and supervisory authorities from pursuing complaints or conducting investigations.

Therefore supervisory authorities should promote closer cooperation with their international counterparts, with a focus on exchange of information, cooperation in activities, and reciprocity.

GDPR- Article 50 – International cooperation for the protection of personal data
Recital 117 The establishment of supervisory authorities in Member States, empowered to perform their tasks and exercise their powers with complete independence, is an essential component of the protection of natural persons with regard to the processing of their personal data. Member States should be able to establish more than one supervisory authority, to reflect their constitutional, organisational and administrative structure. Establishment of Supervisory Authorities in Member States Self explanatory. GDPR – Article 51 – Supervisory authority

1. Each Member State shall provide for one or more independent public authorities to be responsible for monitoring the application of this Regulation, in order to protect the fundamental rights and freedoms of natural persons in relation to processing and to facilitate the free flow of personal data within the Union (‘supervisory authority’).

Recital 118 The independence of supervisory authorities should not mean that the supervisory authorities cannot be subject to control or monitoring mechanisms regarding their financial expenditure or to judicial review. Review of Supervisory Authorities Regardless of Independence Self explanatory. GDPR – Article 51 – Supervisory authority

6. Each Member State shall ensure that each supervisory authority is subject to financial control which does not affect its independence and that it has separate, public annual budgets, which may be part of the overall state or national budget.

Recital 119 Where a Member State establishes several supervisory authorities, it should establish by law mechanisms for ensuring the effective participation of those supervisory authorities in the consistency mechanism. That Member State should in particular designate the supervisory authority which functions as a single contact point for the effective participation of those authorities in the mechanism, to ensure swift and smooth cooperation with other supervisory authorities, the Board and the Commission. Consistency Mechanism for Multiple Supervisory Authorities Requirement for a Member State with multiple supervisory authorities (e.g. Germany) to put the ‘consistency mechanism’ (Article 63) into effect. GDPR – Article 56 – Competence of the lead supervisory authority

1. Without prejudice to Article 55, the supervisory authority of the main establishment or of the single establishment of the controller or processor shall be competent to act as lead supervisory authority for the cross-border processing carried out by that controller or processor in accordance with the procedure provided in Article 60.

GDPR – Article 57 – Tasks

1. Without prejudice to other tasks set out under this Regulation, each supervisory authority shall on its territory:

(g) cooperate with, including sharing information and provide mutual assistance to, other supervisory authorities with a view to ensuring the consistency of application and enforcement of this Regulation;

GDPR – Article 63 – Consistency mechanism

In order to contribute to the consistent application of this Regulation throughout the Union, the supervisory authorities shall cooperate with each other and, where relevant, with the Commission, through the consistency mechanism as set out in this Section.

Recital 120 Each supervisory authority should be provided with the financial and human resources, premises and infrastructure necessary for the effective performance of their tasks, including those related to mutual assistance and cooperation with other supervisory authorities throughout the Union. Each supervisory authority should have a separate, public annual budget, which may be part of the overall state or national budget. Provision of Resources and Infrastructure for Supervisory Authorities Self explanatory. GDPR – Article 52 – Independence

4. Each Member State shall ensure that each supervisory authority is provided with the human, technical and financial resources, premises and infrastructure necessary for the effective performance of its tasks and exercise of its powers, including those to be carried out in the context of mutual assistance, cooperation and participation in the Board.

6. Each Member State shall ensure that each supervisory authority is subject to financial control which does not affect its independence and that it has separate, public annual budgets, which may be part of the overall state or national budget.

Recital 121 The general conditions for the member or members of the supervisory authority should be laid down by law in each Member State and should in particular provide that those members are to be appointed, by means of a transparent procedure, either by the parliament, government or the head of State of the Member State on the basis of a proposal from the government, a member of the government, the parliament or a chamber of the parliament, or by an independent body entrusted under Member State law. In order to ensure the independence of the supervisory authority, the member or members should act with integrity, refrain from any action that is incompatible with their duties and should not, during their term of office, engage in any incompatible occupation, whether gainful or not. The supervisory authority should have its own staff, chosen by the supervisory authority or an independent body established by Member State law, which should be subject to the exclusive direction of the member or members of the supervisory authority. General Conditions of the Supervisory Authority Laid Down by Law Self explanatory. GDPR – Article 53 – General conditions for the members of the supervisory authority
Recital 122 Each supervisory authority should be competent on the territory of its own Member State to exercise the powers and to perform the tasks conferred on it in accordance with this Regulation. This should cover in particular the processing in the context of the activities of an establishment of the controller or processor on the territory of its own Member State, the processing of personal data carried out by public authorities or private bodies acting in the public interest, processing affecting data subjects on its territory or processing carried out by a controller or processor not established in the Union when targeting data subjects residing on its territory. This should include handling complaints lodged by a data subject, conducting investigations on the application of this Regulation and promoting public awareness of the risks, rules, safeguards and rights in relation to the processing of personal data. Territorial Competence of the Supervisory Authorities The supervisory authority(ies) must be competent to perform these tasks at a minimum in the territory it covers:

● the processing activities of the controllers and processors;
● the processing activities of the public bodies, or other bodies acting in the public interest;
● processing affecting data subjects within its territory;
● processing performed by non-Union entities that affect data subjects residing in its territory;
● handling complaints lodged by a data subject;
● conducting investigations on the application of this Regulation; and
● promoting public awareness of the risks, rules, safeguards and rights in relation to the processing of personal data.

GDPR – Article 55 – Competence

1. Each supervisory authority shall be competent for the performance of the tasks assigned to and the exercise of the powers conferred on it in accordance with this Regulation on the territory of its own Member State.

GDPR – Article 57 – Tasks
Recital 123 The supervisory authorities should monitor the application of the provisions pursuant to this Regulation and contribute to its consistent application throughout the Union, in order to protect natural persons in relation to the processing of their personal data and to facilitate the free flow of personal data within the internal market. For that purpose, the supervisory authorities should cooperate with each other and with the Commission, without the need for any agreement between Member States on the provision of mutual assistance or on such cooperation. Cooperation of Competent Authorities to Ensure Consistent Application of the Regulation Self explanatory. GDPR – Article 51 – Supervisory authority

1. Each Member State shall provide for one or more independent public authorities to be responsible for monitoring the application of this Regulation, in order to protect the fundamental rights and freedoms of natural persons in relation to processing and to facilitate the free flow of personal data within the Union (‘supervisory authority’).

2. Each supervisory authority shall contribute to the consistent application of this Regulation throughout the Union. For that purpose, the supervisory authorities shall cooperate with each other and the Commission in accordance with Chapter VII.

GDPR – Article 57 – Tasks

1. Without prejudice to other tasks set out under this Regulation, each supervisory authority shall on its territory:

(a) monitor and enforce the application of this Regulation;”

(g) cooperate with, including sharing information and provide mutual assistance to, other supervisory authorities with a view to ensuring the consistency of application and enforcement of this Regulation;

Recital 124 Where the processing of personal data takes place in the context of the activities of an establishment of a controller or a processor in the Union and the controller or processor is established in more than one Member State, or where processing taking place in the context of the activities of a single establishment of a controller or processor in the Union substantially affects or is likely to substantially affect data subjects in more than one Member State, the supervisory authority for the main establishment of the controller or processor or for the single establishment of the controller or processor should act as lead authority. It should cooperate with the other authorities concerned, because the controller or processor has an establishment on the territory of their Member State, because data subjects residing on their territory are substantially affected, or because a complaint has been lodged with them. Also where a data subject not residing in that Member State has lodged a complaint, the supervisory authority with which such complaint has been lodged should also be a supervisory authority concerned. Within its tasks to issue guidelines on any question covering the application of this Regulation, the Board should be able to issue guidelines in particular on the criteria to be taken into account in order to ascertain whether the processing in question substantially affects data subjects in more than one Member State and on what constitutes a relevant and reasoned objection. Requirement for a Lead Supervisory Authority (LSA) in Multi-Member State Scenarios In the following scenarios:

● the controller or processor is established in more than one Member State; or
● a single establishment of a controller or processor in the Union substantially affects (or is likely to substantially affect) data subjects in more than one Member State

…the supervisory authority for the main establishment of the controller or processor should act as lead authority.

The lead authority should cooperate with all other authorities concerned because:

● the controller or processor has an establishment on the territory of their Member State;
● data subjects residing on their territory are substantially affected; or
● a complaint has been lodged with them

The Board can provide guidance and dispute resolution where necessary.

GDPR – Article 56 – Competence of the lead supervisory authority

1. Without prejudice to Article 55, the supervisory authority of the main establishment or of the single establishment of the controller or processor shall be competent to act as lead supervisory authority for the cross-border processing carried out by that controller or processor in accordance with the procedure provided in Article 60.

GDPR – Article 60 – Cooperation between the lead supervisory authority and the other supervisory authorities concerned

1. The lead supervisory authority shall cooperate with the other supervisory authorities concerned in accordance with this Article in an endeavour to reach consensus. The lead supervisory authority and the supervisory authorities concerned shall exchange all relevant information with each other.

GDPR – Article 65 – Dispute resolution by the Board
GDPR – Article 70 – Tasks of the Board
Recital 125 The lead authority should be competent to adopt binding decisions regarding measures applying the powers conferred on it in accordance with this Regulation. In its capacity as lead authority, the supervisory authority should closely involve and coordinate the supervisory authorities concerned in the decision-making process. Where the decision is to reject the complaint by the data subject in whole or in part, that decision should be adopted by the supervisory authority with which the complaint has been lodged. Adoption of Binding Decisions by LSA Self explanatory. GDPR – Article 60 – Cooperation between the lead supervisory authority and the other supervisory authorities concerned

6. Where none of the other supervisory authorities concerned has objected to the draft decision submitted by the lead supervisory authority within the period referred to in paragraphs 4 and 5, the lead supervisory authority and the supervisory authorities concerned shall be deemed to be in agreement with that draft decision and shall be bound by it.

8. By derogation from paragraph 7, where a complaint is dismissed or rejected, the supervisory authority with which the complaint was lodged shall adopt the decision and notify it to the complainant and shall inform the controller thereof.

Recital 126 The decision should be agreed jointly by the lead supervisory authority and the supervisory authorities concerned and should be directed towards the main or single establishment of the controller or processor and be binding on the controller and processor. The controller or processor should take the necessary measures to ensure compliance with this Regulation and the implementation of the decision notified by the lead supervisory authority to the main establishment of the controller or processor as regards the processing activities in the Union. Joint Decisions of Supervisory Authorities Binding on Controller or Processor Self explanatory. GDPR – Article 60 – Cooperation between the lead supervisory authority and the other supervisory authorities concerned

6. Where none of the other supervisory authorities concerned has objected to the draft decision submitted by the lead supervisory authority within the period referred to in paragraphs 4 and 5, the lead supervisory authority and the supervisory authorities concerned shall be deemed to be in agreement with that draft decision and shall be bound by it.

8. By derogation from paragraph 7, where a complaint is dismissed or rejected, the supervisory authority with which the complaint was lodged shall adopt the decision and notify it to the complainant and shall inform the controller thereof.

Recital 127 Each supervisory authority not acting as the lead supervisory authority should be competent to handle local cases where the controller or processor is established in more than one Member State, but the subject matter of the specific processing concerns only processing carried out in a single Member State and involves only data subjects in that single Member State, for example, where the subject matter concerns the processing of employees’ personal data in the specific employment context of a Member State.

In such cases, the supervisory authority should inform the lead supervisory authority without delay about the matter. After being informed, the lead supervisory authority should decide, whether it will handle the case pursuant to the provision on cooperation between the lead supervisory authority and other supervisory authorities concerned (‘one-stop-shop mechanism’), or whether the supervisory authority which informed it should handle the case at local level.

When deciding whether it will handle the case, the lead supervisory authority should take into account whether there is an establishment of the controller or processor in the Member State of the supervisory authority which informed it in order to ensure effective enforcement of a decision vis-à-vis the controller or processor.

Where the lead supervisory authority decides to handle the case, the supervisory authority which informed it should have the possibility to submit a draft for a decision, of which the lead supervisory authority should take utmost account when preparing its draft decision in that one-stop-shop mechanism.

Delegation of Decisioning from LSA to ‘Local’ Supervisory Authority (a.k.a. One-Stop-Shop Mechanism) Even if the supervisory authority is not the lead authority, they should be competent enough to handle cases that involve multiple Member States, but where the processing is carried out in a their territory and involves only data subjects in that territory.

Once notified by the local supervisory authority, the lead authority can handle any cases is sees fit, but can delegate the case to the ‘local level’ authority.

The lead authority should understand if the controller or processor is established in the territory of the local authority before deciding to take the case itself.

If the lead authority takes the case, the local authority should still be able to draft a decision that it believes to be appropriate. The lead authority should take this into account.

GDPR – Article 56 – Competence of the lead supervisory authority

3. In the cases referred to in paragraph 2 of this Article, the supervisory authority shall inform the lead supervisory authority without delay on that matter. Within a period of three weeks after being informed the lead supervisory authority shall decide whether or not it will handle the case in accordance with the procedure provided in Article 60, taking into account whether or not there is an establishment of the controller or processor in the Member State of which the supervisory authority informed it.

4. Where the lead supervisory authority decides to handle the case, the procedure provided in Article 60 shall apply. The supervisory authority which informed the lead supervisory authority may submit to the lead supervisory authority a draft for a decision. The lead supervisory authority shall take utmost account of that draft when preparing the draft decision referred to in Article 60(3).

5. Where the lead supervisory authority decides not to handle the case, the supervisory authority which informed the lead supervisory authority shall handle it according to Articles 61 and 62.

Recital 128 The rules on the lead supervisory authority and the one-stop-shop mechanism should not apply where the processing is carried out by public authorities or private bodies in the public interest. In such cases the only supervisory authority competent to exercise the powers conferred to it in accordance with this Regulation should be the supervisory authority of the Member State where the public authority or private body is established. One-Stop-Shop Mechanism in Cases of Public Interest The lead authority / local authority mechanism does not apply public bodies or private bodies processing data in the public interest. Only the supervisory authority of the Member State can manage those cases.
Recital 129 In order to ensure consistent monitoring and enforcement of this Regulation throughout the Union, the supervisory authorities should have in each Member State the same tasks and effective powers, including powers of investigation, corrective powers and sanctions, and authorisation and advisory powers, in particular in cases of complaints from natural persons, and without prejudice to the powers of prosecutorial authorities under Member State law, to bring infringements of this Regulation to the attention of the judicial authorities and engage in legal proceedings.

Such powers should also include the power to impose a temporary or definitive limitation, including a ban, on processing.

Member States may specify other tasks related to the protection of personal data under this Regulation.

The powers of supervisory authorities should be exercised in accordance with appropriate procedural safeguards set out in Union and Member State law, impartially, fairly and within a reasonable time.

In particular each measure should be appropriate, necessary and proportionate in view of ensuring compliance with this Regulation, taking into account the circumstances of each individual case, respect the right of every person to be heard before any individual measure which would affect him or her adversely is taken and avoid superfluous costs and excessive inconveniences for the persons concerned.

Investigatory powers as regards access to premises should be exercised in accordance with specific requirements in Member State procedural law, such as the requirement to obtain a prior judicial authorisation.

Each legally binding measure of the supervisory authority should be in writing, be clear and unambiguous, indicate the supervisory authority which has issued the measure, the date of issue of the measure, bear the signature of the head, or a member of the supervisory authority authorised by him or her, give the reasons for the measure, and refer to the right of an effective remedy.

This should not preclude additional requirements pursuant to Member State procedural law.

The adoption of a legally binding decision implies that it may give rise to judicial review in the Member State of the supervisory authority that adopted the decision.

Standardisation of Member State Tasks and Effective Powers Across the Union The supervisory authorities should:

● have the same tasks and powers across the Union (as defined in Articles 57 and 58);
● address complaints from natural persons in the same way (per Article 57(1)(f));
● be able to engage in legal proceedings under Member State law for infringements against this Regulation (per Article 58(5));
● have the power to impose a limitation and/or ban on processing (per Article 58(2)(f));

Member States can specify other tasks related to data protection but it can be assumed these should be ‘above and beyond’ and without prejudice to this Regulation (per Article 58(6)).

The powers of the supervisory authorities should be appropriate, necessary and proportionate, and set out in Member State laws (e.g. the DPA in the UK). These powers should be exercised impartially, fairly, and in a reasonable time (per Article 58(4)), and only imposed after the potential adverse effects on all parties have been examined.

Any access to controller or processor premises as part of an investigation should be in accordance woth Member State procedural law (per Article 58(1)(f)).

Each legally binding measure of the supervisory authority should:

● be in writing;
● be clear and unambiguous;
● indicate the supervisory authority which has issued the measure;
● indicate the date of issue of the measure;
● bear the signature of the head (or member) of the supervisory authority;
● give the reasons for the measure, and
● refer to the right of an effective remedy
● not preclude an additional requirements stipulated in Member State law

GDPR – Article 57 – Tasks
GDPR – Article 58 – Powers
Recital 130 Where the supervisory authority with which the complaint has been lodged is not the lead supervisory authority, the lead supervisory authority should closely cooperate with the supervisory authority with which the complaint has been lodged in accordance with the provisions on cooperation and consistency laid down in this Regulation. In such cases, the lead supervisory authority should, when taking measures intended to produce legal effects, including the imposition of administrative fines, take utmost account of the view of the supervisory authority with which the complaint has been lodged and which should remain competent to carry out any investigation on the territory of its own Member State in liaison with the competent supervisory authority. Cooperation Between Lead SA and Local SA Where a complaint has been lodged with a ‘local’ authority, the lead authority will closely cooperate (per Articles 57(1)(g), 60(1), and 63).

See Recital 127.

GDPR – Article 57 – Tasks
GDPR – Article 60 – Cooperation between the lead supervisory authority and the other supervisory authorities concerned

1. The lead supervisory authority shall cooperate with the other supervisory authorities concerned in accordance with this Article in an endeavour to reach consensus. The lead supervisory authority and the supervisory authorities concerned shall exchange all relevant information with each other.

GDPR – Article 63 – Consistency mechanism
Recital 131 Where another supervisory authority should act as a lead supervisory authority for the processing activities of the controller or processor but the concrete subject matter of a complaint or the possible infringement concerns only processing activities of the controller or processor in the Member State where the complaint has been lodged or the possible infringement detected and the matter does not substantially affect or is not likely to substantially affect data subjects in other Member States, the supervisory authority receiving a complaint or detecting or being informed otherwise of situations that entail possible infringements of this Regulation should seek an amicable settlement with the controller and, if this proves unsuccessful, exercise its full range of powers.

This should include: specific processing carried out in the territory of the Member State of the supervisory authority or with regard to data subjects on the territory of that Member State; processing that is carried out in the context of an offer of goods or services specifically aimed at data subjects in the territory of the Member State of the supervisory authority; or processing that has to be assessed taking into account relevant legal obligations under Member State law.

Local SA Settlement with Controller or Processor Regardless of who should be the lead authority, in a scenario where:

● the complaint or the possible infringement concerns only processing activities of the controller or processor in the Member State where the complaint has been lodged; or
● the possible infringement detected does not substantially affect or is not likely to substantially affect data subjects in other Member States;

..the supervisory authority receiving a complaint (or other notification of infringement), should seek an amicable settlement with the controller and, if this proves unsuccessful, exercise its full range of powers (per Article 58).

This should include:

● specific processing carried out in the territory of the Member State of the supervisory authority, or with regard to data subjects on the territory of that Member State;
● processing that is carried out in the context of an offer of goods or services specifically aimed at data subjects in the territory of the Member State of the supervisory authority;
● or processing that has to be assessed taking into account relevant legal obligations under Member State law.

GDPR – Article 58 – Powers
Recital 132 Awareness-raising activities by supervisory authorities addressed to the public should include specific measures directed at controllers and processors, including micro, small and medium-sized enterprises, as well as natural persons in particular in the educational context. Public Awareness Training by Supervisory Authorities Self explanatory (per Article 57(1)(b) and (d))

Size of business not specifically addressed in the Articles in the context of awareness.

GDPR – Article 57 – Tasks

1. Without prejudice to other tasks set out under this Regulation, each supervisory authority shall on its territory:

(b) promote public awareness and understanding of the risks, rules, safeguards and rights in relation to processing. Activities addressed specifically to children shall receive specific attention;

(d) promote the awareness of controllers and processors of their obligations under this Regulation;

Recital 133 The supervisory authorities should assist each other in performing their tasks and provide mutual assistance, so as to ensure the consistent application and enforcement of this Regulation in the internal market. A supervisory authority requesting mutual assistance may adopt a provisional measure if it receives no response to a request for mutual assistance within one month of the receipt of that request by the other supervisory authority. Requests for Mutual Assistance Self explanatory. GDPR – Article 61 – Mutual assistance

1. Supervisory authorities shall provide each other with relevant information and mutual assistance in order to implement and apply this Regulation in a consistent manner, and shall put in place measures for effective cooperation with one another. Mutual assistance shall cover, in particular, information requests and supervisory measures, such as requests to carry out prior authorisations and consultations, inspections and investigations.

2. Each supervisory authority shall take all appropriate measures required to reply to a request of another supervisory authority without undue delay and no later than one month after receiving the request. Such measures may include, in particular, the transmission of relevant information on the conduct of an investigation.

Recital 134 Each supervisory authority should, where appropriate, participate in joint operations with other supervisory authorities. The requested supervisory authority should be obliged to respond to the request within a specified time period. Supervisory Authority Joint Operations Self explanatory.

It can be assumed from Article 62(7) that the “specified time period” is one month.

GDPR – Article 62 – Joint operations of supervisory authorities

1. The supervisory authorities shall, where appropriate, conduct joint operations including joint investigations and joint enforcement measures in which members or staff of the supervisory authorities of other Member States are involved.

Recital 135 In order to ensure the consistent application of this Regulation throughout the Union, a consistency mechanism for cooperation between the supervisory authorities should be established. That mechanism should in particular apply where a supervisory authority intends to adopt a measure intended to produce legal effects as regards processing operations which substantially affect a significant number of data subjects in several Member States. It should also apply where any supervisory authority concerned or the Commission requests that such matter should be handled in the consistency mechanism. That mechanism should be without prejudice to any measures that the Commission may take in the exercise of its powers under the Treaties. Consistent Mechanism for Cooperation Between the Supervisory Authorities If a supervisory authority wants to adopt a measure that has legal ramifications that “substantially affect a significant number of data subjects in several Member States”, the consistency mechanism as defined in Chapter VII – Cooperation and Consistency should apply. Most specifically Articles 51 and 62.

Consistency must also be applied when requested by another supervisory authority involved in the case, or by the Commission itself.

If the Commission requests that consistency be applied, this does not affect / negate anything else it may do under the EU Treaties currently in force.

GDPR – Article 51 – Supervisory authority

2. Each supervisory authority shall contribute to the consistent application of this Regulation throughout the Union. For that purpose, the supervisory authorities shall cooperate with each other and the Commission in accordance with Chapter VII.

GDPR – Article 62 – Joint operations of supervisory authorities

2. Where the controller or processor has establishments in several Member States or where a significant number of data subjects in more than one Member State are likely to be substantially affected by processing operations, a supervisory authority of each of those Member States shall have the right to participate in joint operations. The supervisory authority which is competent pursuant to Article 56(1) or (4) shall invite the supervisory authority of each of those Member States to take part in the joint operations and shall respond without delay to the request of a supervisory authority to participate

GDPR – Article 63 – Consistency mechanism

In order to contribute to the consistent application of this Regulation throughout the Union, the supervisory authorities shall cooperate with each other and, where relevant, with the Commission, through the consistency mechanism as set out in this Section.

EU Treaties Currently in Force
Recital 136 In applying the consistency mechanism, the Board should, within a determined period of time, issue an opinion, if a majority of its members so decides or if so requested by any supervisory authority concerned or the Commission. The Board should also be empowered to adopt legally binding decisions where there are disputes between supervisory authorities. For that purpose, it should issue, in principle by a two-thirds majority of its members, legally binding decisions in clearly specified cases where there are conflicting views among supervisory authorities, in particular in the cooperation mechanism between the lead supervisory authority and supervisory authorities concerned on the merits of the case, in particular whether there is an infringement of this Regulation. Opinion of Board in Cases of Majority Decisions or Dispute Self explanatory in light of Articles 64 (specifically 64(3)) and 65 (specifically 65(2)). GDPR – Article 64 – Opinion of the Board

3. In the cases referred to in paragraphs 1 and 2, the Board shall issue an opinion on the matter submitted to it provided that it has not already issued an opinion on the same matter. That opinion shall be adopted within eight weeks by simple majority of the members of the Board. That period may be extended by a further six weeks, taking into account the complexity of the subject matter. Regarding the draft decision referred to in paragraph 1 circulated to the members of the Board in accordance with paragraph 5, a member which has not objected within a reasonable period indicated by the Chair, shall be deemed to be in agreement with the draft decision.

GDPR – Article 65 – Dispute resolution by the Board

2. The decision referred to in paragraph 1 shall be adopted within one month from the referral of the subject-matter by a two-thirds majority of the members of the Board. That period may be extended by a further month on account of the complexity of the subject-matter. The decision referred to in paragraph 1 shall be reasoned and addressed to the lead supervisory authority and all the supervisory authorities concerned and binding on them.

Recital 137 There may be an urgent need to act in order to protect the rights and freedoms of data subjects, in particular when the danger exists that the enforcement of a right of a data subject could be considerably impeded. A supervisory authority should therefore be able to adopt duly justified provisional measures on its territory with a specified period of validity which should not exceed three months. Three Month Validity of SA Provisional Decisions Self explanatory. GDPR – Article 66 – Urgency procedure

1. In exceptional circumstances, where a supervisory authority concerned considers that there is an urgent need to act in order to protect the rights and freedoms of data subjects, it may, by way of derogation from the consistency mechanism referred to in Articles 63, 64 and 65 or the procedure referred to in Article 60, immediately adopt provisional measures intended to produce legal effects on its own territory with a specified period of validity which shall not exceed three months. The supervisory authority shall, without delay, communicate those measures and the reasons for adopting them to the other supervisory authorities concerned, to the Board and to the Commission.

Recital 138 The application of such mechanism should be a condition for the lawfulness of a measure intended to produce legal effects by a supervisory authority in those cases where its application is mandatory. In other cases of cross-border relevance, the cooperation mechanism between the lead supervisory authority and supervisory authorities concerned should be applied and mutual assistance and joint operations might be carried out between the supervisory authorities concerned on a bilateral or multilateral basis without triggering the consistency mechanism. Urgency Procedure – Condition for Lawfulness If a supervisory authority wants to adopt a measure that has legal ramifications, and a consistency mechanism is mandatory, the supervisory authority must actually apply the consistency mechanism in order for their measure to be lawful.

In other cases where supervisory authorities in different countries have to work together (because one is a lead authority and the others are “authorities concerned”) the cooperation mechanism should be applied and they should assist one another so that the consistency mechanism is not needed.

Recital 139 In order to promote the consistent application of this Regulation, the Board should be set up as an independent body of the Union. To fulfil its objectives, the Board should have legal personality. The Board should be represented by its Chair. It should replace the Working Party on the Protection of Individuals with Regard to the Processing of Personal Data established by Directive 95/46/EC. It should consist of the head of a supervisory authority of each Member State and the European Data Protection Supervisor or their respective representatives. The Commission should participate in the Board’s activities without voting rights and the European Data Protection Supervisor should have specific voting rights. The Board should contribute to the consistent application of this Regulation throughout the Union, including by advising the Commission, in particular on the level of protection in third countries or international organisations, and promoting cooperation of the supervisory authorities throughout the Union. The Board should act independently when performing its tasks. Independence of Board from the Union Self explanatory.

Note: the “Working Party on the Protection of Individuals with Regard to the Processing of Personal Data established by Directive 95/46/EC” refers to the Article 29 Working Party.

DIRECTIVE 95/46/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 24-Oct-95

– on the protection of individuals with regard to the processing of personal data and on the free movement of such data

GDPR – Article 69 – Independence

1. The Board shall act independently when performing its tasks or exercising its powers pursuant to Articles 70 and 71.

GDPR – Article 73 – Chair

1. The Board shall elect a chair and two deputy chairs from amongst its members by simple majority.

Recital 140 The Board should be assisted by a secretariat provided by the European Data Protection Supervisor. The staff of the European Data Protection Supervisor involved in carrying out the tasks conferred on the Board by this Regulation should perform its tasks exclusively under the instructions of, and report to, the Chair of the Board. Assistance of the European Data Protection Supervisor Self explanatory. GDPR – Article 69 – Independence

1. The Board shall have a secretariat, which shall be provided by the European Data Protection Supervisor.

2. The secretariat shall perform its tasks exclusively under the instructions of the Chair of the Board.

Recital 141 Every data subject should have the right to lodge a complaint with a single supervisory authority, in particular in the Member State of his or her habitual residence, and the right to an effective judicial remedy in accordance with Article 47 of the Charter if the data subject considers that his or her rights under this Regulation are infringed or where the supervisory authority does not act on a complaint, partially or wholly rejects or dismisses a complaint or does not act where such action is necessary to protect the rights of the data subject. The investigation following a complaint should be carried out, subject to judicial review, to the extent that is appropriate in the specific case. The supervisory authority should inform the data subject of the progress and the outcome of the complaint within a reasonable period. If the case requires further investigation or coordination with another supervisory authority, intermediate information should be given to the data subject. In order to facilitate the submission of complaints, each supervisory authority should take measures such as providing a complaint submission form which can also be completed electronically, without excluding other means of communication. Data Subject Right to Complain Self explanatory in light of Articles 77 (specifically 57(1)(f)) and (2)) and 77 (specifically 77(1) and (2)). GDPR – Article 47 – Binding corporate rules
GDPR – Article 57 – Tasks

1. Without prejudice to other tasks set out under this Regulation, each supervisory authority shall on its territory:

(f) handle complaints lodged by a data subject, or by a body, organisation or association in accordance with Article 80, and investigate, to the extent appropriate, the subject matter of the complaint and inform the complainant of the progress and the outcome of the investigation within a reasonable period, in particular if further investigation or coordination with another supervisory authority is necessary;

2. Each supervisory authority shall facilitate the submission of complaints referred to in point (f) of paragraph 1 by measures such as a complaint submission form which can also be completed electronically, without excluding other means of communication.

GDPR – Article 77 – 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 particular in the Member State of his or her habitual residence, place of work or place of the alleged infringement if the data subject considers that the processing of personal data relating to him or her infringes this Regulation.

2. The supervisory authority with which the complaint has been lodged shall inform the complainant on the progress and the outcome of the complaint including the possibility of a judicial remedy pursuant to Article 78.

GDPR – Article 78 – Right to an effective judicial remedy against a supervisory authority
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION

Article 47

Right to an effective remedy and to a fair trial

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

Recital 142 Where a data subject considers that his or her rights under this Regulation are infringed, he or she should have the right to mandate a not-for-profit body, organisation or association which is constituted in accordance with the law of a Member State, has statutory objectives which are in the public interest and is active in the field of the protection of personal data to lodge a complaint on his or her behalf with a supervisory authority, exercise the right to a judicial remedy on behalf of data subjects or, if provided for in Member State law, exercise the right to receive compensation on behalf of data subjects. A Member State may provide for such a body, organisation or association to have the right to lodge a complaint in that Member State, independently of a data subject’s mandate, and the right to an effective judicial remedy where it has reasons to consider that the rights of a data subject have been infringed as a result of the processing of personal data which infringes this Regulation. That body, organisation or association may not be allowed to claim compensation on a data subject’s behalf independently of the data subject’s mandate. Data Subject’s Right to Obtain 3rd party Representation Self explanatory. GDPR – Article 77 – Right to lodge a complaint with a supervisory authority
GDPR – Article 78 – Right to an effective judicial remedy against a supervisory authority
GDPR – Article 79 – Right to an effective judicial remedy against a controller or processor
GDPR – Article 80 – Representation of data subjects

1. The data subject shall have the right to mandate a not-for-profit body, organisation or association which has been properly constituted in accordance with the law of a Member State, has statutory objectives which are in the public interest, and is active in the field of the protection of data subjects’ rights and freedoms with regard to the protection of their personal data to lodge the complaint on his or her behalf, to exercise the rights referred to in Articles 77, 78 and 79 on his or her behalf, and to exercise the right to receive compensation referred to in Article 82 on his or her behalf where provided for by Member State law.

GDPR – Article 82 – Right to compensation and liability
Recital 143 Any natural or legal person has the right to bring an action for annulment of decisions of the Board before the Court of Justice under the conditions provided for in Article 263 TFEU. As addressees of such decisions, the supervisory authorities concerned which wish to challenge them have to bring action within two months of being notified of them, in accordance with Article 263 TFEU. Where decisions of the Board are of direct and individual concern to a controller, processor or complainant, the latter may bring an action for annulment against those decisions within two months of their publication on the website of the Board, in accordance with Article 263 TFEU. Without prejudice to this right under Article 263 TFEU, each natural or legal person should have an effective judicial remedy before the competent national court against a decision of a supervisory authority which produces legal effects concerning that person. Such a decision concerns in particular the exercise of investigative, corrective and authorisation powers by the supervisory authority or the dismissal or rejection of complaints. However, the right to an effective judicial remedy does not encompass measures taken by supervisory authorities which are not legally binding, such as opinions issued by or advice provided by the supervisory authority. Proceedings against a supervisory authority should be brought before the courts of the Member State where the supervisory authority is established and should be conducted in accordance with that Member State’s procedural law. Those courts should exercise full jurisdiction, which should include jurisdiction to examine all questions of fact and law relevant to the dispute before them.

Where a complaint has been rejected or dismissed by a supervisory authority, the complainant may bring proceedings before the courts in the same Member State. In the context of judicial remedies relating to the application of this Regulation, national courts which consider a decision on the question necessary to enable them to give judgment, may, or in the case provided for in Article 267 TFEU, must, request the Court of Justice to give a preliminary ruling on the interpretation of Union law, including this Regulation. Furthermore, where a decision of a supervisory authority implementing a decision of the Board is challenged before a national court and the validity of the decision of the Board is at issue, that national court does not have the power to declare the Board’s decision invalid but must refer the question of validity to the Court of Justice in accordance with Article 267 TFEU as interpreted by the Court of Justice, where it considers the decision invalid. However, a national court may not refer a question on the validity of the decision of the Board at the request of a natural or legal person which had the opportunity to bring an action for annulment of that decision, in particular if it was directly and individually concerned by that decision, but had not done so within the period laid down in Article 263 TFEU.

Application for Annulment of Board Decisions to the Court of Justice of the European Union Self explanatory. TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

Article 263

The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.

It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.

The Court shall have jurisdiction under the same conditions in actions brought by the Court of Auditors, by the European Central Bank and by the Committee of the Regions for the purpose of protecting their prerogatives.

Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

Acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them.

The proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

Article 267

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.

Recital 144 Where a court seized of proceedings against a decision by a supervisory authority has reason to believe that proceedings concerning the same processing, such as the same subject matter as regards processing by the same controller or processor, or the same cause of action, are brought before a competent court in another Member State, it should contact that court in order to confirm the existence of such related proceedings. If related proceedings are pending before a court in another Member State, any court other than the court first seized may stay its proceedings or may, on request of one of the parties, decline jurisdiction in favour of the court first seized if that court has jurisdiction over the proceedings in question and its law permits the consolidation of such related proceedings. Proceedings are deemed to be related where they are so closely connected that it is expedient to hear and determine them together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings. Actions in the Case of Multiple Related Proceedings Self explanatory. GDPR – Article 81 – Suspension of proceedings

1. Where a competent court of a Member State has information on proceedings, concerning the same subject matter as regards processing by the same controller or processor, that are pending in a court in another Member State, it shall contact that court in the other Member State to confirm the existence of such proceedings.

2. Where proceedings concerning the same subject matter as regards processing of the same controller or processor are pending in a court in another Member State, any competent court other than the court first seized may suspend its proceedings.

3. Where those proceedings are pending at first instance, any court other than the court first seized may also, on the application of one of the parties, decline jurisdiction if the court first seized has jurisdiction over the actions in question and its law permits the consolidation thereof.

Recital 145 For proceedings against a controller or processor, the plaintiff should have the choice to bring the action before the courts of the Member States where the controller or processor has an establishment or where the data subject resides, unless the controller is a public authority of a Member State acting in the exercise of its public powers. Plaintiff’s Choice of Location for Action Self explanatory.
Recital 146 The controller or processor should compensate any damage which a person may suffer as a result of processing that infringes this Regulation. The controller or processor should be exempt from liability if it proves that it is not in any way responsible for the damage. The concept of damage should be broadly interpreted in the light of the case-law of the Court of Justice in a manner which fully reflects the objectives of this Regulation. This is without prejudice to any claims for damage deriving from the violation of other rules in Union or Member State law. Processing that infringes this Regulation also includes processing that infringes delegated and implementing acts adopted in accordance with this Regulation and Member State law specifying rules of this Regulation. Data subjects should receive full and effective compensation for the damage they have suffered. Where controllers or processors are involved in the same processing, each controller or processor should be held liable for the entire damage. However, where they are joined to the same judicial proceedings, in accordance with Member State law, compensation may be apportioned according to the responsibility of each controller or processor for the damage caused by the processing, provided that full and effective compensation of the data subject who suffered the damage is ensured. Any controller or processor which has paid full compensation may subsequently institute recourse proceedings against other controllers or processors involved in the same processing. Compensation to Data Subjects for Damages Self explanatory. GDPR – Article 82 – Right to compensation and liability
Recital 147 Where specific rules on jurisdiction are contained in this Regulation, in particular as regards proceedings seeking a judicial remedy including compensation, against a controller or processor, general jurisdiction rules such as those of Regulation (EU) No 1215/2012 of the European Parliament and of the Council should not prejudice the application of such specific rules. Specific vs. General Jusidiction Rules Specific rules on judicial remedy such as Regulation (EU) No 1215/2012 should not prevent the rules in this Regulation from being enforced. REGULATION (EU) No 1215/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

– on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

Recital 148 In order to strengthen the enforcement of the rules of this Regulation, penalties including administrative fines should be imposed for any infringement of this Regulation, in addition to, or instead of appropriate measures imposed by the supervisory authority pursuant to this Regulation. In a case of a minor infringement or if the fine likely to be imposed would constitute a disproportionate burden to a natural person, a reprimand may be issued instead of a fine. Due regard should however be given to the nature, gravity and duration of the infringement, the intentional character of the infringement, actions taken to mitigate the damage suffered, degree of responsibility or any relevant previous infringements, the manner in which the infringement became known to the supervisory authority, compliance with measures ordered against the controller or processor, adherence to a code of conduct and any other aggravating or mitigating factor. The imposition of penalties including administrative fines should be subject to appropriate procedural safeguards in accordance with the general principles of Union law and the Charter, including effective judicial protection and due process. Imposition of Penalties for Regulatory Infringements Financial penalties should be imposed for breaching the rules of the Regulation, which can be addition to the imposition of processing restrictions per Article 58(2) (non-fine penalties can range from a reprimand, to total prohibition from data processing).

Aggravating and mitigating factors should be taken into account including:
● nature, gravity and duration of the infringement,
● the intentional character of the infringement,
● actions taken to mitigate the damage suffered,
● degree of responsibility or
● any relevant previous infringements,
● the manner in which the infringement became known to the supervisory authority,
● compliance with measures ordered against the controller or processor,
● adherence to a code of conduct

Penalties must be effective, proportionate and dissuasive and be in-line with other Union laws and the Charter of Fundamental Right of the European Union.

GDPR – Article 58(2)(a) – (j) – Powers
GDPR – Article 83 – General conditions for imposing administrative fines
GDPR – Article 84 – Penalties
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION
Recital 149 Member States should be able to lay down the rules on criminal penalties for infringements of this Regulation, including for infringements of national rules adopted pursuant to and within the limits of this Regulation. Those criminal penalties may also allow for the deprivation of the profits obtained through infringements of this Regulation. However, the imposition of criminal penalties for infringements of such national rules and of administrative penalties should not lead to a breach of the principle of ne bis in idem, as interpreted by the Court of Justice. Application of Criminal Penalties for Regulatory Infringements Member States can impose criminal penalties in-line with this Regulation as well as in-line with national law (including confiscation of profits from the infringing processing).

However, the principle of ne bis in idem (i.e. the right not to be prosecuted or punished twice for the same criminal conduct) must be respected.

Recital 150 In order to strengthen and harmonise administrative penalties for infringements of this Regulation, each supervisory authority should have the power to impose administrative fines. This Regulation should indicate infringements and the upper limit and criteria for setting the related administrative fines, which should be determined by the competent supervisory authority in each individual case, taking into account all relevant circumstances of the specific situation, with due regard in particular to the nature, gravity and duration of the infringement and of its consequences and the measures taken to ensure compliance with the obligations under this Regulation and to prevent or mitigate the consequences of the infringement. Where administrative fines are imposed on an undertaking, an undertaking should be understood to be an undertaking in accordance with Articles 101 and 102 TFEU for those purposes. Where administrative fines are imposed on persons that are not an undertaking, the supervisory authority should take account of the general level of income in the Member State as well as the economic situation of the person in considering the appropriate amount of the fine. The consistency mechanism may also be used to promote a consistent application of administrative fines. It should be for the Member States to determine whether and to which extent public authorities should be subject to administrative fines. Imposing an administrative fine or giving a warning does not affect the application of other powers of the supervisory authorities or of other penalties under this Regulation. Application of Administrative Fines for Regulatory Infringements Self explanatory. TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

– Article 101
– Article 102

Recital 151 The legal systems of Denmark and Estonia do not allow for administrative fines as set out in this Regulation. The rules on administrative fines may be applied in such a manner that in Denmark the fine is imposed by competent national courts as a criminal penalty and in Estonia the fine is imposed by the supervisory authority in the framework of a misdemeanour procedure, provided that such an application of the rules in those Member States has an equivalent effect to administrative fines imposed by supervisory authorities. Therefore the competent national courts should take into account the recommendation by the supervisory authority initiating the fine. In any event, the fines imposed should be effective, proportionate and dissuasive. Legal Systems of Estonia and Denmark Self explanatory.
Recital 152 Where this Regulation does not harmonise administrative penalties or where necessary in other cases, for example in cases of serious infringements of this Regulation, Member States should implement a system which provides for effective, proportionate and dissuasive penalties. The nature of such penalties, criminal or administrative, should be determined by Member State law. Member States to Determine Penalties in Special Cases Self explanatory, and means that the penalties detailed in Article 83 may not be the highest in certain circumstances.
Recital 153 Member States law should reconcile the rules governing freedom of expression and information, including journalistic, academic, artistic and or literary expression with the right to the protection of personal data pursuant to this Regulation. The processing of personal data solely for journalistic purposes, or for the purposes of academic, artistic or literary expression should be subject to derogations or exemptions from certain provisions of this Regulation if necessary to reconcile the right to the protection of personal data with the right to freedom of expression and information, as enshrined in Article 11 of the Charter. This should apply in particular to the processing of personal data in the audiovisual field and in news archives and press libraries. Therefore, Member States should adopt legislative measures which lay down the exemptions and derogations necessary for the purpose of balancing those fundamental rights. Member States should adopt such exemptions and derogations on general principles, the rights of the data subject, the controller and the processor, the transfer of personal data to third countries or international organisations, the independent supervisory authorities, cooperation and consistency, and specific data-processing situations. Where such exemptions or derogations differ from one Member State to another, the law of the Member State to which the controller is subject should apply. In order to take account of the importance of the right to freedom of expression in every democratic society, it is necessary to interpret notions relating to that freedom, such as journalism, broadly. Reconciliation to the Freedom of Expression Member States must reconcile the right to the protection of personal data with the freedom of expression and define the appropriate derogations or exemptions from certain provisions of this Regulation if necessary. The Regulation should not be used to unnecessarily stifle creative or journalistic freedom.

The law of Member State to which the  data controller is subject is the law that applies if there is conflict.

Freedom of expression is to be given a broad interpretation.

GDPR – Article 85 – Processing and freedom of expression and information

“1. Member States shall by law reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information, including processing for journalistic purposes and the purposes of academic, artistic or literary expression.”

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION

Article 11

Freedom of expression and information

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

2. The freedom and pluralism of the media shall be respected.

Recital 154 This Regulation allows the principle of public access to official documents to be taken into account when applying this Regulation. Public access to official documents may be considered to be in the public interest. Personal data in documents held by a public authority or a public body should be able to be publicly disclosed by that authority or body if the disclosure is provided for by Union or Member State law to which the public authority or public body is subject. Such laws should reconcile public access to official documents and the reuse of public sector information with the right to the protection of personal data and may therefore provide for the necessary reconciliation with the right to the protection of personal data pursuant to this Regulation. The reference to public authorities and bodies should in that context include all authorities or other bodies covered by Member State law on public access to documents. Directive 2003/98/EC of the European Parliament and of the Council leaves intact and in no way affects the level of protection of natural persons with regard to the obligations and rights set out in this Regulation. In particular, that Directive should not apply to documents to which access is excluded or restricted by virtue of the access regimes on the grounds of protection of personal data, and parts of documents accessible by virtue of those regimes which contain personal data the re-use of which has been provided for by law as being incompatible with the law concerning the protection of natural persons with regard to the processing of personal data. Public Access to Official Documents Self explanatory. Article – Article 86 – Processing and public access to official documents

“Personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to this Regulation.”

DIRECTIVE 2003/98/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 17-Nov-03

– on the re-use of public sector information

Recital 155 Member State law or collective agreements, including ‘works agreements’, may provide for specific rules on the processing of employees’ personal data in the employment context, in particular for the conditions under which personal data in the employment context may be processed on the basis of the consent of the employee, the purposes of the recruitment, the performance of the contract of employment, including discharge of obligations laid down by law or by collective agreements, management, planning and organisation of work, equality and diversity in the workplace, health and safety at work, and for the purposes of the exercise and enjoyment, on an individual or collective basis, of rights and benefits related to employment, and for the purpose of the termination of the employment relationship. Processing of Employees’ Personal Data in the Employment Context Self explanatory. GDPR – Article 88 – Processing in the context of employment
Recital 156 The processing of personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes should be subject to appropriate safeguards for the rights and freedoms of the data subject pursuant to this Regulation. Those safeguards should ensure that technical and organisational measures are in place in order to ensure, in particular, the principle of data minimisation. The further processing of personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes is to be carried out when the controller has assessed the feasibility to fulfil those purposes by processing data which do not permit or no longer permit the identification of data subjects, provided that appropriate safeguards exist (such as, for instance, pseudonymisation of the data). Member States should provide for appropriate safeguards for the processing of personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes. Member States should be authorised to provide, under specific conditions and subject to appropriate safeguards for data subjects, specifications and derogations with regard to the information requirements and rights to rectification, to erasure, to be forgotten, to restriction of processing, to data portability, and to object when processing personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes. The conditions and safeguards in question may entail specific procedures for data subjects to exercise those rights if this is appropriate in the light of the purposes sought by the specific processing along with technical and organisational measures aimed at minimising the processing of personal data in pursuance of the proportionality and necessity principles. The processing of personal data for scientific purposes should also comply with other relevant legislation such as on clinical trials. Processing of Personal Data for Special Reasons When the processing of personal data for archiving purposes is:

● in the public interest
● for scientific or historical research purposes; or
● statistical purposes

…and:

● assuming all “appropriate safeguards for the rights and freedoms of the data subject pursuant to this Regulation” are in place and defined by the Member State in question (especially data minimisation); and
● the controller has assessed the feasibility performing those actions by processing data which no longer requires the identification of data subjects (e.g. by pseudonymisation)

Then:

Member States should be authorised to provide specifications and derogations with regard to the rights to:

● rectification (GDPR – Article 16);
● erasure, a.k.a. be forgotten (GDPR – Article 17);
● restriction of processing (GDPR – Article 18);
● data portability (GDPR – Article 20); and
● object (GDPR – Article 21)

However, it may be necessary to provide specific procedures for data subjects to exercise those rights if it is appropriate in light of the purposes of the processing, and in pursuance of the proportionality and necessity principles.

The processing of personal data for scientific purposes should also comply with other relevant legislation such as on clinical trials.

GDPR – Article 16 – Right to rectification
GDPR – Article 17 – Right to erasure (‘right to be forgotten’)
GDPR – Article 18 – Right to restriction of processing
GDPR – Article 20 – Right to data portability
GDPR – Article 21 – Right to object
Recital 157 By coupling information from registries, researchers can obtain new knowledge of great value with regard to widespread medical conditions such as cardiovascular disease, cancer and depression. On the basis of registries, research results can be enhanced, as they draw on a larger population. Within social science, research on the basis of registries enables researchers to obtain essential knowledge about the long-term correlation of a number of social conditions such as unemployment and education with other life conditions. Research results obtained through registries provide solid, high-quality knowledge which can provide the basis for the formulation and implementation of knowledge-based policy, improve the quality of life for a number of people and improve the efficiency of social services. In order to facilitate scientific research, personal data can be processed for scientific research purposes, subject to appropriate conditions and safeguards set out in Union or Member State law. Registries and Data Source Coupling Self explanatory, but any further guidance would have to be sought from SMEs within the ‘registries’ field.
Recital 158 Where personal data are processed for archiving purposes, this Regulation should also apply to that processing, bearing in mind that this Regulation should not apply to deceased persons. Public authorities or public or private bodies that hold records of public interest should be services which, pursuant to Union or Member State law, have a legal obligation to acquire, preserve, appraise, arrange, describe, communicate, promote, disseminate and provide access to records of enduring value for general public interest. Member States should also be authorised to provide for the further processing of personal data for archiving purposes, for example with a view to providing specific information related to the political behaviour under former totalitarian state regimes, genocide, crimes against humanity, in particular the Holocaust, or war crimes. Personal Data Processed for Archiving Purposes in the Public Interest Self explanatory, but any further guidance would have to be sought from SMEs within the archiving for public interest field.
Recital 159 Where personal data are processed for scientific research purposes, this Regulation should also apply to that processing. For the purposes of this Regulation, the processing of personal data for scientific research purposes should be interpreted in a broad manner including for example technological development and demonstration, fundamental research, applied research and privately funded research. In addition, it should take into account the Union’s objective under Article 179(1) TFEU of achieving a European Research Area. Scientific research purposes should also include studies conducted in the public interest in the area of public health. To meet the specificities of processing personal data for scientific research purposes, specific conditions should apply in particular as regards the publication or otherwise disclosure of personal data in the context of scientific research purposes. If the result of scientific research in particular in the health context gives reason for further measures in the interest of the data subject, the general rules of this Regulation should apply in view of those measures. Personal Data Processed for Scientific Research Purposes Self explanatory, but any further guidance would have to be sought from SMEs within the scientific research field. TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

Article 179(1)

“The Union shall have the objective of strengthening its scientific and technological bases by achieving a European research area in which researchers, scientific knowledge and technology circulate freely, and encouraging it to become more competitive, including in its industry, while promoting all the research activities deemed necessary by virtue of other Chapters of the Treaties.”

Recital 160 Where personal data are processed for historical research purposes, this Regulation should also apply to that processing. This should also include historical research and research for genealogical purposes, bearing in mind that this Regulation should not apply to deceased persons. Personal Data Processed for Historical Research Purposes Self explanatory. Does not apply to deceased persons (see Recital 27).
Recital 161 For the purpose of consenting to the participation in scientific research activities in clinical trials, the relevant provisions of Regulation (EU) No 536/2014 of the European Parliament and of the Council should apply. Consent in Clinical Trials Self explanatory, refer to Regulation (EU) No 536/2014. REGULATION (EU) No 536/2014 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 16-Apr-14

– on clinical trials on medicinal products for human use

Recital 162 Where personal data are processed for statistical purposes, this Regulation should apply to that processing. Union or Member State law should, within the limits of this Regulation, determine statistical content, control of access, specifications for the processing of personal data for statistical purposes and appropriate measures to safeguard the rights and freedoms of the data subject and for ensuring statistical confidentiality. Statistical purposes mean any operation of collection and the processing of personal data necessary for statistical surveys or for the production of statistical results. Those statistical results may further be used for different purposes, including a scientific research purpose. The statistical purpose implies that the result of processing for statistical purposes is not personal data, but aggregate data, and that this result or the personal data are not used in support of measures or decisions regarding any particular natural person. Personal Data Processed for Statistical Purposes Self explanatory, but any further guidance would have to be sought from SMEs within the statistics field. GDPR – Article 89 – Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes
Recital 163 The confidential information which the Union and national statistical authorities collect for the production of official European and official national statistics should be protected. European statistics should be developed, produced and disseminated in accordance with the statistical principles as set out in Article 338(2) TFEU, while national statistics should also comply with Member State law. Regulation (EC) No 223/2009 of the European Parliament and of the Council provides further specifications on statistical confidentiality for European statistics. Collection of Data for Official European and Official National Statistics Self explanatory, see references. TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

Article 338(2)

2. The production of Union statistics shall conform to impartiality, reliability, objectivity, scientific independence, cost-effectiveness and statistical confidentiality; it shall not entail excessive burdens on economic operators.

REGULATION (EC) No 223/2009 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 11-Mar-09

– on European statistics and repealing Regulation (EC, Euratom) No 1101/2008 of the European Parliament and of the Council on the transmission of data subject to statistical confidentiality to the Statistical Office of the European Communities, Council Regulation (EC) No 322/97 on Community Statistics, and Council Decision 89/382/EEC, Euratom establishing a Committee on the Statistical Programmes of the European Communities

Recital 164 As regards the powers of the supervisory authorities to obtain from the controller or processor access to personal data and access to their premises, Member States may adopt by law, within the limits of this Regulation, specific rules in order to safeguard the professional or other equivalent secrecy obligations, in so far as necessary to reconcile the right to the protection of personal data with an obligation of professional secrecy. This is without prejudice to existing Member State obligations to adopt rules on professional secrecy where required by Union law. Protection of Personal Data with an Obligation of Professional Secrecy Self explanatory, see references. GDPR – Article 58 – Powers

1. Each supervisory authority shall have all of the following investigative powers:

“(e) to obtain, from the controller and the processor, access to all personal data and to all information necessary for the performance of its tasks;”

“(f) to obtain access to any premises of the controller and the processor, including to any data processing equipment and means, in accordance with Union or Member State procedural law.”

GDPR – Article 90 – Obligations of secrecy

“1. Member States may adopt specific rules to set out the powers of the supervisory authorities laid down in points (e) and (f) of Article 58(1) in relation to controllers or processors that are subject, under Union or Member State law or rules established by national competent bodies, to an obligation of professional secrecy or other equivalent obligations of secrecy where this is necessary and proportionate to reconcile the right of the protection of personal data with the obligation of secrecy. Those rules shall apply only with regard to personal data which the controller or processor has received as a result of or has obtained in an activity covered by that obligation of secrecy.”

Recital 165 This Regulation respects and does not prejudice the status under existing constitutional law of churches and religious associations or communities in the Member States, as recognised in Article 17 TFEU. Constitutional Law of Churches and Religious Associations Self explanatory, see reference. TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

Article 17

1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.

2. The Union equally respects the status under national law of philosophical and non-confessional organisations.

3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.

Recital 166 In order to fulfil the objectives of this Regulation, namely to protect the fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data and to ensure the free movement of personal data within the Union, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission. In particular, delegated acts should be adopted in respect of criteria and requirements for certification mechanisms, information to be presented by standardised icons and procedures for providing such icons. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing-up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council. Delegation of Power to Adopt Acts to the Commission Self explanatory, see references. GDPR – Article 92 – Exercise of the delegation

“1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.”

“2. The delegation of power referred to in Article 12(8) and Article 43(8) shall be conferred on the Commission for an indeterminate period of time from 24 May 2016.”

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

– Article 290

Recital 167 In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission when provided for by this Regulation. Those powers should be exercised in accordance with Regulation (EU) No 182/2011. In that context, the Commission should consider specific measures for micro, small and medium-sized enterprises. Conferrence of Implementation Powers to the Commission Once an EU law is passed, it can be necessary to update it to reflect developments in a particular sector or to ensure that it is implemented properly. Parliament and Council can authorise the Commission to adopt delegated or implementing acts, respectively, in order to do this. REGULATION (EU) No 182/2011 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 16-Feb-11

– laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers

Recital 168 The examination procedure should be used for the adoption of implementing acts on standard contractual clauses between controllers and processors and between processors; codes of conduct; technical standards and mechanisms for certification; the adequate level of protection afforded by a third country, a territory or a specified sector within that third country, or an international organisation; standard protection clauses; formats and procedures for the exchange of information by electronic means between controllers, processors and supervisory authorities for binding corporate rules; mutual assistance; and arrangements for the exchange of information by electronic means between supervisory authorities, and between supervisory authorities and the Board. The Examination Procedure The ‘examination procedure’ actually refers to Article 5 of Regulation (EU) 182/2011, which is concerned with how the Commission exercises its implementation powers.

For example, GDPR – Article 28(7) states; “The Commission may lay down standard contractual clauses for the matters referred to in paragraph 3 and 4 of this Article and in accordance with the examination procedure referred to in Article 93(2).”, meaning that for the Commission to approve contractual clauses, it must follow the examination procedure and timelines as detailed in Article 5 of Regulation (EU) 182/2011.

GDPR – Article 93 – Committee procedure

“2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.”

REGULATION (EU) No 182/2011 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 16-Feb-11

– laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers

Article 5 – Examination Procedure

Recital 169 The Commission should adopt immediately applicable implementing acts where available evidence reveals that a third country, a territory or a specified sector within that third country, or an international organisation does not ensure an adequate level of protection, and imperative grounds of urgency so require. Adoption of Applicable Implementing Acts in Urgent Situations Refers to Article 45(5) and  Article 93, which in turn points to REGULATION (EU) No 182/2011. GDPR – Article 45 – Transfers on the basis of an adequacy decision

“5. The Commission shall, where available information reveals, in particular following the review referred to in paragraph 3 of this Article, that a third country, a territory or one or more specified sectors within a third country, or an international organisation no longer ensures an adequate level of protection within the meaning of paragraph 2 of this Article, to the extent necessary, repeal, amend or suspend the decision referred to in paragraph 3 of this Article by means of implementing acts without retro-active effect. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 93(2).

On duly justified imperative grounds of urgency, the Commission shall adopt immediately applicable implementing acts in accordance with the procedure referred to in Article 93(3).”

GDPR – Article 93 – Committee procedure

“3. Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 5 thereof, shall apply.”

REGULATION (EU) No 182/2011 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 16-Feb-11

– laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers

Article 5 – Examination Procedure
Article 8 – Immediately Applicable Implementing Acts

Recital 170 Since the objective of this Regulation, namely to ensure an equivalent level of protection of natural persons and the free flow of personal data throughout the Union, cannot be sufficiently achieved by the Member States and can rather, by reason of the scale or effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. Principle of Subsidiarity By its nature, The Union is best placed to ensure uniformity and can act to achieve that, however it must respect the principles of subsidiarity (the Union may only act where Member States are unable to do so) and proportionality (the Union can only act as far as necessary to achieve a specific aim). CONSOLIDATED VERSION OF THE TREATY ON EUROPEAN UNION

Article 5(3) – ‘Principle of Subsidiarity’

Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.

Article 5(4) – ‘Principle of Proportionality’

Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.

The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality

Recital 171 Directive 95/46/EC should be repealed by this Regulation. Processing already under way on the date of application of this Regulation should be brought into conformity with this Regulation within the period of two years after which this Regulation enters into force. Where processing is based on consent pursuant to Directive 95/46/EC, it is not necessary for the data subject to give his or her consent again if the manner in which the consent has been given is in line with the conditions of this Regulation, so as to allow the controller to continue such processing after the date of application of this Regulation. Commission decisions adopted and authorisations by supervisory authorities based on Directive 95/46/EC remain in force until amended, replaced or repealed. Repeal of Directive 95/46/EC and Transitional Provisions Self explanatory. DIRECTIVE 95/46/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 24-Oct-95

– on the protection of individuals with regard to the processing of personal data and on the free movement of such data

Recital 172 The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and delivered an opinion on 7 March 2012. Consultation with European Data Protection Supervisor Self explanatory. REGULATION (EC) No 45/2001 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 18-Dec-00

– on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data

Recital 173 This Regulation should apply to all matters concerning the protection of fundamental rights and freedoms vis-à- vis the processing of personal data which are not subject to specific obligations with the same objective set out in Directive 2002/58/EC of the European Parliament and of the Council, including the obligations on the controller and the rights of natural persons. In order to clarify the relationship between this Regulation and Directive 2002/58/EC, that Directive should be amended accordingly. Once this Regulation is adopted, Directive 2002/58/EC should be reviewed in particular in order to ensure consistency with this Regulation. Reconciliation with Directive 2002/58/EC Self explanatory. DIRECTIVE 2002/58/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 12-Jul-02

– concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications)