One of the EU’s key objectives in adopting the General Data Protection Regulation (“GDPR”) is to contribute to the well-being of individuals by reinforcing their rights with respect to their own personal data.
As from 25 May 2018, persons and companies acting as data controllers should comply with the reinforced data subjects’ rights under the GDPR. Further, they should also implement adequate systems and processes to “facilitate the exercise” of such individual rights.
Infringements of the data subjects’ rights will be subject to significant fines of up to 20 000 000 EUR, or in the case of undertaking legal entity, up to 4 % of its total worldwide annual turnover of the preceding financial year, whichever is higher.
You will find below a brief review of some of the most important rights of data subjects that every data controller must consider before the entry into effect of the GDPR.
- Right to be informed and to access to information
The GDPR requires that controllers process personal data in a transparent manner. This means that every controller should provide to the data subjects certain information regarding the collection and processing of their personal data (e.g. the identity and the contact details of the controller and, where applicable, of the controller’s representative and/or the data protection officer, the purposes of the processing as well as the legal basis for the processing, the recipients or the categories of recipients of the personal data etc.). The GDPR expands the scope of information to be provided to data subjects by adding the requirement to inform the data subject about:
- the existence of his or her rights to erasure, to rectification, to restriction of processing, to object to processing and to file a complaint with the competent national Data Protection Authority;
- the source of the information where such information was not collected from the data subject;
- the period for which the data would be stored, or if that is not possible, the criteria used to determine that period.
The GDPR distinguishes between personal data collected from the data subject, in which case the abovementioned information should be provided at the time when such personal data is obtained, and personal data obtained from other sources, in which case the controller shall be under the obligation to provide the information ”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”. In any case, if the personal data shall be used for the purpose of communicating with the data subject or if any disclosure of such data to third parties is envisaged, the information must be provided to the data subject prior to the first contact with him/her, respectively prior to the disclosure.
Generally, data controllers ensure compliance with the above obligations by serving privacy notices to data subjects. A privacy notice may take various forms, e.g. an appendix to a customer contract, a message appearing next to an online application/registration form, an e-mail notification or similar. Privacy notices should be communicated to data subjects in the most appropriate moment depending on the circumstances – for example, the cookies notifications appearing at the loading of webpages, links/pop-ups with privacy policies when filing online forms etc.
Further, it is of high importance to draft the privacy notices strictly in accordance with the provisions of the GDPR. This means that each privacy notice should contain the minimum information set out in the GDPR and it should be prepared “in a concise, transparent, intelligible and easily accessible form, using clear and plain language”. Controllers may consider reviewing existing privacy notices to ensure compliance with the GDPR’s standards.
Data controllers should also implement processes, which allow for a timely response to data subjects’ requests for information. Any data subject shall have the right to request and obtain from the controller confirmation as to if personal data concerning him or her are being processed, and, where that is the case, access to such personal data and certain additional information provided for in the GDPR such as the purposes of the processing, any available information as to the source of the personal data (where such data is not collected from the data subject).
Controllers should be prepared to provide information on action taken on such request to the data subject without undue delay and in any event within one month of receipt of the request. That period may be extended further by two months, where necessary, considering the complexity and number of the requests. Thus, it may be appropriate for data controllers to develop or update and implement internal processes for collection and storage of personal data, which allow for a clear distinction of the various sources of such data and the legal basis for their processing in order to ensure timely reaction.
Any information should be provided to the data subject free of charge. The GDPR sets out an exemption from the above obligations, where requests from a data subject are manifestly unfounded or excessive, in particular, because of their repetitive character. In such cases controllers may charge a reasonable fee reflecting the administrative costs of providing the information or refuse to act on the request.
- Right to rectification
According to the GDPR each data subject shall have the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her. The data subject shall be entitled to have incomplete personal data completed, including by means of providing a supplementary statement, taking into account the purposes of the processing. This right remains largely unchanged under the GDPR. Emphasis is made on the requirement to have such rectification “without undue delay” (same as under it. 1 above).
- Right to erasure (“right to be forgotten”)
The GDPR broadens the right of data subjects to request their personal data be deleted by the data controller. Currently, in compliance with Directive 95/46/EC, the Bulgarian Personal Data Protection Act entitles data subjects to request erasure of their personal data, only where such data is processed in violation of the statutory provisions.
The GDPR further clarifies and develops that right by adding that erasure may be sought where: (i) the data are no longer needed for their original purpose (in the absence of new lawful purpose), (ii) erasure is necessary for compliance with EU law or the national law of the relevant Member State or (iii) where the data subject withdraws his or her consent or exercises his or her right to object (see it. 5 below).
The withdrawal of the data subject’s consent should not necessarily lead to the controller’s obligation to erase all personal data available. Such withdrawal may not serve to impede the data controller‘s performance of a contract to which the data subject is also a party, neither it can be regarded as an equivalent to a contract termination. Therefore, in the absence of the data subject’s consent, other legitimate grounds for processing of certain personal data may apply, particularly in situations where the data subject is a client or in the service of the controller.
Data controllers may also benefit from exemptions of their corresponding obligation to erase, where the personal data is necessary for exercising the right of freedom of expression and information (medias), for the establishment, exercise or defence of legal claims, etc.
Arguably the most burdensome aspect with respect to the right to erasure is that where the controller has made personal data public and is obliged to erase it on any of the above grounds, it must (considering the available technology and the cost of implementation) take reasonable steps to inform other 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 (unless such notification proves impossible or involves disproportionate effort). Implementation of internal processes for identification and notification of third parties would be appropriate.
- Right to restrict processing
Contrary to Directive 95/46/EC, the GDPR explicitly confers to data subjects the right to request the restriction of their personal data processing (with the exception of storage), in which case data controllers may process such data only for purposes to which the data subject has consented or for the establishment, exercise or defence of legal claims or for the protection of the rights of another individual or legal person or for reasons of important public interest of the European Union or of a Member State.
Restriction of data processing may be sought where one of the following applies:
- the accuracy of the personal data is contested by the data subject – only for the period necessary to verify the accuracy of the data;
- the processing is unlawful and the data subject requests the restriction of their use instead of erasure;
- the controller no longer needs the personal data for the purposes of the processing, but they are required by the data subject for the establishment, exercise or defence of legal claims;
- the data subject has objected to processing (see sec. 5 below) – for the period of the verification whether the legitimate grounds of the controller override those of the data subject.
- Right to object to processing
The data subject’s right to object to his or her personal data processing is another right which requires data controllers’ increased attention as it is substantially broadened by the GDPR. According to Directive 95/46/EC, in order for the data subject to benefit from such right, he or she must demonstrate that his or her objection is justified.
Under the GDPR the positions of the data subject and the data controller are reversed. Where personal data is processed on grounds of public interest or legitimate interests of the controller (more information on the legal grounds for personal data processing will be soon available in a separate article), data subjects may object to such processing and the controller must cease processing unless the controller demonstrates compelling legitimate grounds either (i) for the processing, which override the interests, rights and freedoms of the data subject, or (ii) for the establishment, exercise or defence of legal claims. Thus, in the event of court or administrative proceedings initiated by the data subject, because of the data controller’s refusal to cease processing, the burden of proof shall be on the latter to demonstrate the existence of one of the above grounds for continuing the processing.
In addition, the GDPR expressly retains the data subjects’ right to object at any time to their personal data being processed for marketing purposes.
Given the specifics of the rights to erasure, to restrict processing and to object to processing (in comparison to the rights to information and data rectification), companies may consider appointment of dedicated persons with legal expertise (e.g. a data protection officer, where applicable), which shall review and act on such requests made by data subjects.
The GDPR releases controllers from the obligation to comply with certain of the above rights of data subjects, where the controller is able to demonstrate that it is not in a position to identify the data subject. In such case the controller shall inform the data subject accordingly (if possible), without having obligation to require any further information necessary for the identification of the data subject.
Before the entry into effect of the GDPR (i.e. 25 May 2018), companies may want to consider at least the following measures aimed at general compliance:
- review and update (where necessary) any internal policies and procedures related to personal data processing and privacy policies, so as to assess their suitability to meet the broader rights, which data subjects may be entitled to exercise; and
- plan and arrange for periodic adequate trainings of employees (on or off-line, e.g. workshops or webinars) processing personal data.
The information contained in this post is not intended to and does not constitute a legal advice under Bulgarian law or under the laws of any other jurisdiction and is provided for informational purposes only.