Personal data protection
online
Jakub Míšek
2. 4. 2019
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History of data protection
• European Convention on Human Rights (1950)
• OECD Gudelines OECD Guidelines on the Protection of Privacy and
Transborder Flows of Personal Data (1980)
• Council of Europe Convention for the Protection of Individuals with
regard to Automatic Processing of Personal Data (Convention 108)
(1981)
• Recast – Convention 108+
• Directive 95/46/EC
• Legislation started in summer 1990
• Enacted 1995
• General Data Protection Regulation (2016/679)
Constitutional Level
• Art. 8 of the European Convention on Human Rights
• Article 8 – Right to respect for private and family life
• 1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
• 2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others.
Constitutional Level
• Charter of Fundamental Rights of the European Union (2012/C
326/02)
• Article 8 - Protection of personal data
1) Everyone has the right to the protection of personal data concerning him or
her.
2) Such data must be processed fairly for specified purposes and on the basis
of the consent of the person concerned or some other legitimate basis laid
down by law. Everyone has the right of access to data which has been
collected concerning him or her, and the right to have it rectified.
3) Compliance with these rules shall be subject to control by an independent
authority.
Informational self determination
• 1983 – Germany, Census case
• One of basic premises of personal data protection
• Examples:
• Accent on consent
• Right to be forgotten
• Right to object the processing
Legislation
• General Data Protection Regulation (2016/679)
• Police Directive (2016/680)
• National acts
• E.g. Act No. ???/2019 Sb., on personal data processing
Privacy v. Personal Data Protection
• Scope of protection
• DP – No legal persons, no dead persons
• Private v. Public law
• Restitutive v. Preventive
• Court v. DPA
• Personal data
• Disconnected from privacy protection
• Disconnected from a man
Basic concepts
I. Prevention
Basic concepts
I. Prevention
A. Broad application
B. Purpose limitation and Data Minimisation
Basic concepts
General Data Protection Regulation
II. Accountability of the data controller
The cornerstone – Purpose of Processing
Almost everything in the personal data
protection law (legality of processing) is
evaluated in relation to the purpose of
processing.
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Basic concepts – Personal Data
• Art. 4 para. 1
• ‘personal data’ means any information relating to an identified or
identifiable natural person (‘data subject’); an identifiable natural
person is one who can be identified, directly or indirectly, in
particular by reference to an identifier such as a name, an
identification number, location data, an online identifier or to one
or more factors specific to the physical, physiological, genetic,
mental, economic, cultural or social identity of that natural person
Basic concepts – Personal Data
• Recital 26:
• […] 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. […]
Basic concepts – Personal Data
• Art. 4 para. 1
• ‘personal data’ means any information relating to an identified or
identifiable natural person (‘data subject’); an identifiable natural
person is one who can be identified, directly or indirectly, in
particular by reference to an identifier such as a name, an
identification number, location data, an online identifier or to one
or more factors specific to the physical, physiological, genetic,
mental, economic, cultural or social identity of that natural person
• Direct X Indirect Identification
• Objective v. Subjective approach
• Context is everything!
Personal Data
•Example of wrong anonymisation – still personal
data
•AOL search data
•Sex, Date of Birth, ZIP cod
•87% of US citizens
Personal Data
•Breyer Case (CJEU) C-582/14
• Dynamic IP Address is Personal Data
• Para 46:
• It is not personal data “if the identification of the data subject
was prohibited by law or practically impossible on account of
the fact that it requires a disproportionate effort in terms of
time, cost and man-power, so that the risk of identification
appears in reality to be insignificant.”
Anonymisation
• Recital 26:
• […] 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.
• Anonymous data – Ex-personal Data
Pseudonymisation
• Rec 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. […]
• Art. 4 para 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
Special categories of Personal Data
• 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
Personal data processing
• Art 4, para 2
• ‘processing’ means any operation or set of operations which is performed on
personal data or on sets of personal data, whether or not by automated
means, such as collection, recording, organisation, structuring, storage,
adaptation or alteration, retrieval, consultation, use, disclosure by
transmission, dissemination or otherwise making available, alignment or
combination, restriction, erasure or destruction
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Material Scope of the Regulation
• Art. 2 para. 1:
• This Regulation applies to the processing of personal data
wholly or partly by automated means and to the
processing other than by automated means of personal
data which form part of a filing system or are intended to
form part of a filing system.
Material Scope of the Regulation
• Art. 2 para. 2 – exceptions:
• activity which falls outside the scope of Union law
• activities which fall within the scope of Chapter 2 of Title V of the TEU
• Foreign and Security politics of MS
• processing by a natural person in the course of a purely personal or
household activity
• E.g. Ryneš Case (C-212/13); Lindqvist Case (C-101/01)
• Processing 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
Material Scope of the Regulation
• Art. 2 para. 3 – exceptions:
• processing of personal data by the Union institutions, bodies, offices and
agencies, Regulation (EC) No 45/2001 applies
• Art. 2 para. 4:
• This Regulation shall be without prejudice to the application of Directive
2000/31/EC, in particular of the liability rules of intermediary service
providers in Articles 12 to 15 of that Directive
Personal Data Controller
• Controller = natural or legal person, public authority, agency or other
body which, alone or jointly with others, determines the purposes
and means of the processing of personal data; where the purposes
and means of such processing are determined by Union or Member
State law, the controller or the specific criteria for its nomination may
be provided for by Union or Member State law
• Example – Google Search Engine
• Joint controllers
• Processor = natural or legal person, public authority, agency or other
body which processes personal data on behalf of the controller
• A contract on data processing
Territorial scope I
• Art. 3 para 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.
• “Context of the activities”
• Not where the controller is necessarily established, but where the establishment is
involved in the activities related to the data processing
• Location of the data is not important for the scope of application
Establishment
• Recital 22:
• […] 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.
• CJEU Google Spain Case (C-131/12)
• CJEU Weltimmo Case (C-230/14)
• Website, Stable Legal Representative, Bank Account
Main Establishment
• Rec. 36:
• […]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.[…] 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.
Territorial Scope II
• Art. 3, Para. 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.
Territorial Scope II
• Rec. 23
• Offering of the services – is it apparent? Could the controller envisage that?
• Inspiration by the consumer targeting case law of the CJEU (e.g. Pammer & Hotel
Alpenhof Case C-585/08)
• Rec. 24
• Monitoring Behaviour
• Tracking
• Profiling
• Analysing or predicting of personal preferences etc.
• Example – Google Spain case and CNIL (French DPA)
• Problem?
• Enforceability
• Everything or nothing approach
Basics of data processing
Art. 5 - principles to processing of PD
• Principle of lawfulness, fairness and transparency
• processed lawfully, fairly and in a transparent manner in relation to the data subject
• Principle of purpose limitation
• Principle of data minimalization
• Principle of accuracy
• Principle of storage limitation
• Principle of integrity and confidentiality
• Principle of accountability
• The controller shall be responsible for, and be able to demonstrate compliance with
rules
Legal grounds for processing – Art. 6, para. 1
a) Consent of the data subject
b) Processing is necessary for the performance of a contract to which
the data subject is party
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
Legal Obligation and Public Interest
• Art. 6 para. 3:
• Union law or Member State law to which the controller is subject
• Law determines purposes
• Should specify also general conditions 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
• Case C-465/00, C-138/01 and C-139/01 – Österreichischer
Rundfunk
Consent
• Art 4, para 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
• Rec 42
• Controller should be able to demonstrate that the data subject has
given consent to the processing operation
• Data subject can withdraw at any time
Consent
• Freely given
• Real choice is necessary
• no risk of deception, intimidation, coercion or significant negative consequences
• Art. 7 para. 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.
• Specific
• Scope and consequences of data processing are defined
• Not open ended set of processing activities
• Informed
• 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 (Rec.
42)
• 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.(Rec. 58)
• Unambiguous
• Leave no doubt
Legitimate interests pursued by the controller
• Art. 6 para. 1 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
• Rec. 47, Rec. 49
• Balancing test!
• Examples:
• Google Spain, IP Addresses in CySec
• Open Data Applications
Further processing (Art. 6 para. 4)
• Where the processing for a purpose other than that for which the personal
data have been collected is not based on the data subject’s consent or on a
Union or Member State law …, the controller shall, in order to ascertain
whether processing for another purpose is compatible with the purpose for
which the personal data are initially collected, take into account, inter alia:
• any link between the purposes for which the personal data have been collected and
the purposes of the intended further processing
• the context in which the personal data have been collected, in particular regarding
the relationship between data subjects and the controller
• the nature of the personal data
• the possible consequences of the intended further processing for data subjects
• the existence of appropriate safeguards, which may include encryption or
pseudonymisation
Processing of Special Categories (Art. 9)
• Generally forbidden
• Unless one of exceptions
• explicit consent
• necessary for the purposes of carrying out the obligations and exercising specific
rights of the controller or of the data subject in the field of employment and social
security
• necessary to protect the vital interests of the data subject or of another natural
person where the data subject is physically or legally incapable of giving consent
• …
• processing relates to personal data which are manifestly made public by the data
subject
• processing is necessary for the establishment, exercise or defence of legal claims or
whenever courts are acting in their judicial capacity
• …
Art. 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.
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Rights of the data subject
• Right to information about processing
• Art. 13 (when data collected from the subject)
• Art. 14 (when data collected from a third person)
• Right of access by the data subject (Art. 15)
• Right to rectification (Art. 16)
• Right to erasure (‘right to be forgotten’) (Art. 17)
• Right to restriction of processing (Art. 18)
• Right to data portability (Art. 20)
• Right to object (Art. 21)
• When: Legitimate interest OR Public interest OR Direct marketing
• Automated individual decision-making, including profiling (Art. 22)
Right to information about processing
• Basic information about processing:
• Who, how, why (purpose), why (legal ground), how long, where…
• Art. 14 para. 5 – exception. Information duty not apply when:
• the data subject already has the information
• 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 … 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
• …
• where the personal data must remain confidential subject to an obligation of
professional secrecy regulated by Union or Member State law, including a
statutory obligation of secrecy
Right to Access (Art. 15)
• Data subject can actively ask for:
• Basic information about processing:
• Who, how, why (purpose), why (legal ground), how long, where…
• Para 3: The controller shall provide a copy of the personal data undergoing
processing. For any further copies requested by the data subject, the
controller may charge a reasonable fee based on administrative costs. Where
the data subject makes the request by electronic means, and unless
otherwise requested by the data subject, the information shall be provided in
a commonly used electronic form.
Right to erasure (Right to be Forgotten)
• Google Spain Case
• The data subject shall have the right to obtain from the controller the
erasure of personal data concerning him or her without undue delay and
the controller shall have the obligation to erase personal data without
undue delay, when:
• the personal data are no longer necessary in relation to the purposes for which they
were collected or otherwise processed
• the data subject withdraws consent on which the processing is based
• the data subject objects to the processing pursuant to Article 21(1) (legitimate or
public interest) and there are no overriding legitimate grounds for the processing
• the personal data have been unlawfully processed
• the personal data have to be erased for compliance with a legal obligation
• Children consent
Right to erasure (Right to be Forgotten)
• Viral nature of the right (Art. 17 Para. 2)
• If controller made public
• Exceptions (Art. 17 Para. 3) - Processing is necessary for:
• exercising the right of freedom of expression and information
• compliance with a legal obligation or for the performance of a task carried out
in the public interest
• reasons of public interest in the area of public health
• archiving purposes in the public interest, scientific or historical research
purposes or statistical purposes in accordance with Article 89(1)
• the establishment, exercise or defence of legal claims
The huge problem - problem with time
• Forgetting – natural and useful process
• Internet does not forget
• Collective memory
• Past made present
• Streisand effect
• Long past misconducts
• Furthermore!
• The value of Data changes in time
Duties of the controller
• Responsibility of the controller (Art. 24)
• Controller must implement appropriate technical and organisational measures to
ensure and to be able to demonstrate that processing is performed in accordance
with this Regulation
• Data protection by design and by default (Art. 25)
• Records of processing activities (Art. 30)
• Files and documents
• Cooperation with the supervisory authority (Art. 31)
• Security of processing (Art. 32)
• Notification of a personal data breach to the supervisory authority (Art. 33)
• Data protection impact assessment (Arts. 35)
• Data protection officer (Arts. 37 – 39)
Data protection impact assessment (Art. 35)
• Practical realisation of the Responsibility of the controller (Art. 24)
• Main purpose – to be sure that the controller fulfils all the duties arising
from GDPR
• Prevention principle
• Different to standard risk management
• Result of DPIA should be seen in the processing itself
• Para. 1
• Where a type of processing in particular using new technologies, and taking into
account the nature, scope, context and purposes of the processing, is likely to result
in a high risk to the rights and freedoms of natural persons, the controller shall, prior
to the processing, carry out an assessment of the impact of the envisaged processing
operations on the protection of personal data.
• A single assessment may address a set of similar processing operations that present
similar high risks.
Data protection impact assessment (Art. 35)
• Para. 3
• A data protection impact assessment referred to in paragraph 1 shall in
particular be required in the case of
• a systematic and extensive evaluation of personal aspects relating to natural persons
which is based on automated processing, including profiling, and on which decisions are
based that produce legal effects concerning the natural person or similarly significantly
affect the natural person
• processing on a large scale of special categories of data referred to in Article 9(1), or of
personal data relating to criminal convictions and offences referred to in Article 10
• a systematic monitoring of a publicly accessible area on a large scale
• WP 29 Guidelines
• 9 Categories
Data protection impact assessment (Art. 35)
• WP 29 Guidelines
• 9 Categories
1. Evaluation or scoring
2. Automated-decision making with legal or similar significant effect
3. Systematic monitoring
4. Sensitive data or data of a highly personal nature
5. Data processed on a large scale
• Number of subjects/ Volume of data/ Duration/ Geographical extent
6. Matching or combining datasets
7. Data concerning vulnerable data subjects
8. Innovative use or applying new technological or organisational solutions
9. When the processing in itself “prevents data subjects from exercising a right or using a
service or a contract”
Data Protection Officer (Art. 37)
• Para 1 - The controller and the processor shall designate a data
protection officer in any case where:
• the processing is carried out by a public authority or body, except for courts
acting in their judicial capacity
• 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
• 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
Data Protection Officer (Art. 37)
• Rec. 97:
• … 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
Jurisdiction
Jurisdiction : Competent DPA
• Controller + Processor:
• Recital 36:
• The competent lead supervisory authority should remain the supervisory authority of the Member
State where the controller has its main establishment
• The supervisory authority of the processor (supervisory authority concerned) should participate in
the cooperation procedure
• Controller has establishments or activities in more than one MS
OR: processing of personal data which takes place in one MS but it
substantially affects may affect data subjects in more than one EU MS
• Recital 124
• DPA of the Main Establishment = lead supervisory authority
• It should cooperate with other DPAs
Right to lodge a complaint with a supervisory
authority
• Article 77:
• […] 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.
• One-Stop-Shop Principle
• If DPAs cannot Agree, the Board will decide
Right to an effective judicial remedy against a
supervisory authority
• Art. 78:
• […] each natural or legal person shall have the right to an effective judicial
remedy against a legally binding decision of a supervisory authority
concerning them
• Related proceedings
• Rec. 144
• Cooperation of courts in the case of the same processing
• Court may stay its proceedings if there is a related proceedings elsewhere
Right to an effective judicial remedy against a
controller or processor
• Art. 79
• (1) […] each data subject shall have the right to an effective judicial remedy
where he or she considers that his or her rights under this Regulation have
been infringed as a result of the processing of his or her personal data in noncompliance
with this Regulation
• (2) Proceedings against a controller or a processor shall be brought before
the courts of the Member State where the controller or processor has an
establishment. Alternatively, such proceedings may be brought before the
courts of the Member State where the data subject has his or her habitual
residence, unless the controller or processor is a public authority of a
Member State acting in the exercise of its public powers.
Court action against decision of the Board
• 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. […]
• Art. 263 TFEU
• https://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E263:EN:HTML
Thank you for your attention.
Jakub Míšek
@jkb_misek