GDPR – Individual’s rights [part two]

As seen in the previous post, individual’s rights under GDPR are:

1. The right to be informed
2. The right of access
3. The right to rectification
4. The right to erasure
5. The right to restrict processing
6. The right to data portability
7. The right to object
8. Rights in relation to automated decision making and profiling.

For this post, we will look at the last four listed above (you can check the first ones in the aforementioned post).

The right to restrict processing

Erasure is not always the right (no pun intended) thing to do. As when the original reason for process ends, there may be a legal obligation to hold that personal data (see picture below).

It’s also useful for controllers whenever data is inaccurate or when the legitimate basis for processing cannot be immediately proven.

GDPR for SAP: How to restrict personal data processing? by Michael Rakutko

You will be required to restrict the processing of personal data if:

• An individual contests the accuracy of his personal data, you should restrict the processing until you have verified the accuracy of the personal data.
• When processing is unlawful and the individual opposes erasure and requests restriction instead.
• If you no longer need the personal data but the individual requires the data to establish, exercise or defend a legal claim.
• Where an individual has objected to the processing (where it was necessary for the performance of a public interest task or purpose of legitimate interests), and you are considering whether your organisation’s legitimate grounds override those of the individual.

Examples of methods to restrict processing are given in Recital 67.  For instance, you can mark the personal data that has restrict processing over it.

Two communication obligations for controllers are:

• impacted individuals must be informed by the controller before restricted processing is lifted.
• If you have disclosed the personal data in question to third parties, you must inform them about the restriction on the processing of the personal data (except if it is impossible or involves disproportionate effort to do so).

Exceptions

Processing may be restricted but still possible when:

• The individual explicitly consents
• For establishment, exercise or defence of legal claims
• For the protection of the rights of another natural or legal person
• For reasons of important public interest of the Union or of a Member State.

The right to data portability

The data subject has the right to receive personal data he/she has provided to a controller.

The personal data must be in a structured, commonly used and machine-readable format (ICO gives as an example the ubiquitous CVS format) and have the right to transmit those data to another controller without hindrance from the controller to which the personal data have been provided.

This right applies when these two conditions are met:

1. The processing is carried out by automated means
2. The processing is based on consent given by an individual or it is necessary for the performance of a contract

The individual may request that the controller sends the personal data directly to another organization (if technically feasible). Note that the controller does not have to adopt or maintain processing systems that are technically compatible with other organizations.

Data portability is a new right under GDPR.

Exceptions

Data portability does 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 right to object

The data subject has the right to object when processing relates to:

• Legitimate interests or the performance of a task in the public interest/exercise of official authority (including profiling)
  • 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 defense of legal claims.
• Direct marketing (including profiling)
  • In this case, the right to object should be explicitly brought to the attention of the data subject and presented clearly and separately from any other information.
• Scientific/historical research and statistics
  • unless the processing is necessary for the performance of the task carried out for reasons of public interest.

If this processing is carried out online, then the controller must offer a way for individuals to object online.

Rights in relation to automated decision making and profiling

GDPR includes safeguarding individuals against the risk that a potentially damaging decision is taken without human intervention.

“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.” – GDPR, Art.22 (1)

Here we have new rights for the individuals regarding profiling.

Individual safeguards for the individual

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.

Fair and transparent processing

In order to ensure fair and transparent processing in respect of the data subject (including preventing discriminatory effects on a natural person), the controller should:

• use appropriate mathematical or statistical procedures for the profiling, implement technical and organizational measures appropriate to ensure, in particular, that factors which result in inaccuracies in personal data are corrected and the risk of errors is minimised

Exceptions

The automated processing is allowed if one of these is true:

• is necessary for entering into, or performance of, a contract between the data subject and a data controller
• is authorized by Union or local Member State law to which the controller is subject (which also lays down suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests). The referred authorization may include fraud and tax-evasion monitoring and prevention purposes
• the data subject gave his/her explicit consent.

Decisions taken from personal data profiling shall not be based on special categories of personal data (e.g. racial, ethnic, or religious information) unless:

• there’s explicit consent from the data subject (except where prohibited by Union law or National Law)
• or processing is necessary for substantial public interest.

Next topic will address minors rights.

GDPR – Individuals’ rights [first part of two]

The intention of GDPR is to strengthen and unify data protection for all individuals within the United Europe.

“Schuyler against Curtis and the Right to Privacy”, Judge Noble Hand (1897)

 

The following individual’s rights are covered under GDPR:

1. The right to be informed
2. The right of access
3. The right to rectification
4. The right to erasure
5. The right to restrict processing
6. The right to data portability
7. The right to object
8. Rights in relation to automated decision making and profiling.

I’ll cover these rights in two posts. Now, let’s go for the first four.

The right to be informed

This right ensures transparency, by communicating what individual’s personal data is being used. Check here on how to create privacy note for this. What and when to inform will depend on how the personal data was obtained.

The information you supply about the processing of personal data must crystal clear and free of charge.

The right of access

Individuals have the right to check lawfulness on how their personal data is being used, so they need to easily access it (and at reasonable intervals – where possible the controller should provide remote access to a secure system which would provide the data subject with direct access to his or her personal data).

Recital 63 provides further detail on this right. Notice that excessive requests can be charged. You have to provide the information without delay and under one month. For complex requests, you can extend the period of compliance up to two additional months, by informing within one month of request receipt (and explaining the reason for extension).

A convenient checklist for handling subject access requests is available from ICO.

The right to rectification

The data subject has 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.

This right is covered in Article 16 – Right to rectification and further detailed with Recital 65 – Right of rectification and erasure.

The right to erasure

This right has been expanded from previous provisions regarding erasure in the soon to be replaced Directive 95/46/EC.

The controllers must erase personal data if one of these cases applies:

• Where the personal data is no longer necessary in relation to the purpose for which it was originally collected/processed
• When the individual withdraws consent
• When the individual objects to the processing and there is no overriding legitimate interest for continuing the processing
• The personal data was unlawfully processed (ie otherwise in breach of the GDPR)
• The personal data has to be erased in order to comply with a legal obligation
• The personal data is processed in relation to the offer of information society services to a child.

Eraser by Alex Morfin

As a controller, you can refuse to comply with a request for erasure where the personal data is processed for the following reasons:

• to exercise the right of freedom of expression and information
• to comply with a legal obligation or for the performance of a public interest task or exercise of official authority
• for public health purposes in the public interest
• archiving purposes in the public interest, scientific research historical research or statistical purposes
• the exercise or defence of legal claims.

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 (from Recital 65). The data subject can exercise this right when he/she is no longer a child. Note there are quite a few cases where the controller can still keep the information.

The second part of this post will describe the other four individuals’ rights, which include two new rights (Art. 18 – Right to restriction of processing and Art. 20 – Right to data portability).

GDPR – By reading this you are consenting…

 

Ensuring explicit consent by the individual is one of the key areas to take into account in the GDPR (your organization may face fines up to 20000000€ or 4% of the total worldwide annual turnover of the preceding financial year, whichever is higher).

From a customer perspective, proper application of consent gives individuals autonomy and control over their data, resulting in more trust and reputation of the service provider.

Alas, with GDPR obtaining and maintaining consent is now significantly more difficult to achieve so we’ll look at what challenges it poses, the alternatives, when to use it and how to go about it.

Cats don’t like change without their consent. Roger Caras

Consent challenges

On one hand, consent must be given like in “of free will, specific, informed and unambiguous.” In some cases, the entity’s power position makes it unfeasible to use consent (as in the employee/employer relationship that conditions the free will).

On the other hand, the individual can trigger the right to be forgotten (which will have to be fulfilled unless there is a legal basis justifying the need for processing) or may even request deletion of their data because they are no longer needed.

Note that the initiative to request consent may constitute a violation of the right to privacy, as in the case of Honda in the United Kingdom (consent to request consent by email without having records of previous… consent).

Mechanisms for legal processing

For the above reasons, organizations should first determine the legality, under the RGPD, of the use of personal data. And then assess what the best mechanism to sustain legal processing. Of the six possible mechanisms, consent may not be the easiest to apply or the most correct.

There are five other alternatives to consent, which may be more appropriate for your organization:

• Processing is required:
  i) In relation to a contract that the individual has accepted; or
  ii) because the individual has asked that something is done so that he can accept a contract.
• Processing is required due to applicable legal obligation (except an obligation imposed by a contract).
• Processing is necessary to protect the “vital interests” of the individual. This condition applies only to life and death cases, such as when an individual’s medical history is made available to an emergency department at a hospital for treatment after a major road accident.
• Processing is necessary to administer justice or to perform statutory, governmental or other public functions.
• Processing is done according to the “legitimate interests” condition.

Of these alternatives, processing due to legal obligation is a practical approach, identifying existing legal basis that supports the processing needs of the organization is a good starting point. A concrete example, in the area of human resources, derives from the obligation to maintain information about the employee for social security. Just keep in mind that personal data should be limited to the minimum necessary for the processing for which it is intended.

Another alternative is the use “legitimate interests” to justify the processing of personal data, such as keeping the employee’s bank account to use for payment of wages.

When to use the consent mechanism?

Consent is appropriate when:

• There is use of special categories of data (such as sensitive health data)
• Processing restriction (there is reason not to process and only store personal data – for example when the individual disputes the accuracy of their data)
• Automatic decision making (criterion should be transparent)
• Bank transfers (be careful when existing safeguards are insufficient)

Consent best practices

The GDPR requirements for consent are: being specific, granular, clear, prominent, optin, documented and easily withdrawn.

From ICO (Information Commissioner’s Office) we’ve got the following guidance in the application of the consent mechanism:

• Separation: Consent requests must be separate from other terms and conditions. Consent cannot be a precondition for subscribing to a service unless it is required for the same service.
• Explicit subscription: Clear and positive action is required; Pre-filled boxes are not allowed.
• Granular: Each different form of processing must have its own means of registration.
• Assignment: It should be specific to all organizations, including other processors that will process the data.
• Easy to cancel: Provide clear means of canceling consent at any time.
• Relationship Balance: Obvious imbalances as employers/employees will result in forced consent, which is not acceptable.
• Documentation: Auditable consent records must be maintained.

For a simple list of support for the use of consent consult the document Consultation: GDPR consent guidance from ICO.

In the next post, we will go through data protection by design, a way of addressing data protection risk at the right time.

Resources

• An Article on when to use consent
• The Recitals from EU give insight on consent