As a follow-up to last month's update in this June edition of the GDPR Update, we again discuss certain data subjects' rights. This time we will go into the right to access, rectification and data portability.
When processing personal data, organisations are obliged to inform data subjects on their rights. As set out in our previous GDPR Update, the introduction of the GDPR substantially affects the existing information obligation of data controllers. This may - and will likely - lead to a necessary amendment of existent (privacy) policies, notices, (employee) handbooks, etcetera. The GDPR requires controllers to respond to data subject's requests without undue delay, and ultimately within one month of receiving a request. If the organisation fails to meet this deadline, the data subject may seek a judicial remedy and may complain to the Dutch Supervisory Authority (Autoriteit Persoonsgegevens) which, in turn, may consider subsequent steps. Where an organisation receives large numbers of requests, or particularly complex requests, the time limit to respond may be extended by a maximum of two further months.
Right to access
As under the DPA, the data subject has the right to obtain confirmation as to whether or not personal data concerning him or her is being processed and, where that is the case, to have access to the personal data and receive certain information. The information to be provided by controllers is expanded under the GDPR. Controllers must provide data subject where requested with information on:
- the purposes of the processing;
- the categories of personal data concerned;
- the recipients or categories of recipient to whom the personal data have been or will be disclosed, in particular recipients in third countries or international organisations;
- where possible, the envisaged period for which the personal data will be stored, or, if not possible, the criteria used to determine that period;
- the existence of the right to request from the controller rectification or erasure of personal data or restriction of processing of personal data concerning the data subject or to object to such processing;
- the right to lodge a complaint with a supervisory authority;
- where the personal data are not collected from the data subject, any available information as to their source; and
- the existence of automated decision-making, including profiling, and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject.
Points d, e, f and h are newly introduced information obligations. Also new is controller's obligation to inform a data subject on, where applicable, the appropriate safeguards related to a transfer of his or her personal data to a country or international organisation outside the European Economic Area. In view of all this, it is likely that information requests will create a greater administrative burden on organisations than is the case under the DPA.
Unlike under the DPA, controllers are obliged to provide the data subject with a free copy of his or her personal data. Only if the data subject requests more than one copy of his or her personal data, the controller may charge reasonable fees (based on internal administrative costs). Where the controller processes a large quantity of information concerning the data subject, it may require the data subject to specify the information or processing activities to which the request relates.
The controller must 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. However, the controller may not process personal data solely for the purpose of being able to respond to potential requests.
The data subject must be able to exercise his or her right to access easily and at reasonable intervals, in order to be aware of, and verify, the lawfulness of the processing concerning his or her data. Requests made for non-data protection purposes may be rejected. Where the data subject makes the request by electronic means, and unless otherwise requested by the data subject, the information must be provided in a commonly used electronic form. Furthermore, where possible, controllers are encouraged to provide remote access to a secure system granting the data subject direct access to his or her personal data. Such right to access may not adversely affect the rights and freedoms of others, including trade secrets and intellectual property, and in particular the copyright protecting the software (of the system used to grant access). However, this may not lead to a refusal to provide all information to the data subject (meaning that the controller should in such cases look for alternative).
Right to rectification
Under the GDPR the right to rectification means that the data subject has the right to request rectification of inaccurate personal data concerning him or her. The data subject also has the right to have incomplete personal data completed, including by means of providing a supplementary statement.
As opposed to the other two rights discussed in this GDPR Update, the right of rectification should not cause organisations to face many additional requirements.
Right to data portability
Newly introduced in the GDPR is the right to data portability. To further strengthen the control over his or her own data, a data subject has the right to receive back from the controller the personal data which he or she has provided to the controller where:
- the processing is based on consent (also in case of special categories of personal data) or on a contract; and
- the processing is carried out by automated means.
The data should be provided in a structured, commonly used and machine-readable format. The purpose of this right is for the data subject to be able to transmit the data to another controller without hindrance from the first controller.
The right to portability does not apply where the processing is based on any other legal ground than consent or contract, such as a processing necessary for the purposes of the legitimate interests of the controller or where the processing is necessary for the performance or of a task carried out in the public interest.
Where technically feasible, the data subject may also request the controller to transfer the personal data directly to another controller.
This new right to transfer personal data between controllers may very well create an additional administrative and technical burden, requiring substantial investment in new (technical) systems and (internal) processes. The GDPR expresses the wish that controllers are stimulated to develop interoperable formats that enable data portability.
The right to receive the personal data is without prejudice to the rights and freedoms of other data subjects. Furthermore, the data portability right may not prejudice the right of data subjects to obtain the erasure of their personal data and the limitations of that right as set out in the GDPR.
The right to data portability does in particular not imply a right for the data subject to request the erasure of personal data which he or she has provided for the performance of a contract, to the extent that and for as long as such personal data is necessary for the performance of that contract.
Practical recommendations and conclusion
This GDPR Update addressed the data subjects' rights to access, rectification and data portability. Organisations are obliged to inform data subjects on, amongst other things, these rights and exercise their obligations under these rights without undue delay. The expansion of data subjects' right to access and the introduction of data subjects' right to data portability may lead to modification of internal (technical) systems and processes, and may create an additional administrative burden for organisations processing much personal data.
It is important for data controllers (especially those that process personal data of a large number of data subjects) to begin updating their internal processes and IT systems to be able to comply with these new requirements. Efficiency is key, as controllers may not charge data subjects for their exercise of these rights. Online portals where data subjects (customers, but also employees) can amend (and download) their personal data could be a good solution for this, although this should be carefully weighed against potential downsides such systems may bring.
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