Following our previous publications regarding the key points introduced by the GDPR, now we will focus on one of the new principles of data protection – transparency.
Transparency is a long-established feature of EU law which is all about engendering trust in the processes which affect citizens by enabling them to understand and, if necessary, to challenge those processes[i]. Transparency is intrinsically linked to fairness and the new principle of accountability under the GDPR. The principles of fair and transparent processing require that the data subject should be informed about the existence of the processing operation and its purposes.
Transparency allows data subjects to keep data controllers and processors accountable and to exercise control over their personal data. Transparency requirements apply regardless of the legal ground for processing and throughout the entire life cycle of processing. Transparency as a principle applies to the following three stages of the cycle of processing:
1) Before the processing – when providing information to data subjects in relation to the collection of their data and how these data will be processed;
2) Throughout the whole processing period – in the manners in which data controllers communicate with data subjects in relation to their rights under the GDPR;
3) In specific cases during the processing – e.g. in case of data breaches or substantial changes to the processing.
What is the meaning of transparency? The principle of transparency in general requires that any information and communication relating to the processing of personal data should be easily accessible and intelligible, and clear and plain language should be used. That principle concerns especially information on the controller’s identity and the purposes of processing that is provided to data subjects, as well as further information ensuring fair and transparent processing in respect of data subjects and their right to obtain confirmation of their personal data processing.
Natural persons should be made aware of the risks, rules, safeguards and rights in relation to the processing of personal data, and how to exercise their rights in relation to such processing.
Article 12 of the GDPR provides the requirements to the information provided to data subject in relation to the processing:
- it must be concise, transparent, intelligible and easily accessible;
- clear and plain language must be used;
- the requirement for clear and plain language is of particular importance when providing information to children – children merit special protection as they may be less aware of the risks and their rights in relation to the processing of personal data, so the information addressed to a child must be in such a clear and plain language that the child could easily understand it;
- It must be provided in writing or by other means, including where appropriate, by electronic means;
- Where requested by the data subject, the information may be provided orally (including by automated means like audio recording) – GDPR specifically requires that information may be provided orally on request provided that the identity of the data subject is proven by other means. This precondition applies only in relation to information provided under Art. 15 – 22 and Art. 34 of the GDPR. General information under Art. 13 and Art. 14 of the GDPR may be provided without the controller requiring the data subject’s identity to be proven[ii];
- It must be provided free of charge – controllers cannot charge data subjects for the provision of information. Exception may exist where requests from a data subject are manifestly unfounded or excessive (for example repetitive) – in these cases the controller can either charge a reasonable fee or refuse to act on the request. The controller shall bear the burden of demonstrating the manifestly unfounded or excessive character of the request.
The categories of information that must be provided are listed in Art. 13 and Art. 14 of the GDPR – these are basically details of the data controller, purposes, legal basis, processing time, information on the rights of the data subject, information on whether the provision of personal data is a legal or contractual requirement, and the consequences of a failure to provide data. A new requirement introduced by the GDPR is to provide information on the legal basis for the processing purposes – controllers should be able to relate each specific processing purpose to a specific legal basis. This actually means that controllers should be aware of the reasons for the processing of personal data and can properly identify the legal basis which is applicable to a particular purpose.
Besides the content, the form and manner in which information under Art. 13 and 14 of the GDPR should be provided are also important. The information in relation to the processing of personal data should be provided to the data subject 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, but not later than 1 month. With a view to these requirements, controllers should develop mechanisms to inform data subjects within the specified time limit whenever they collect and store information that is not received from the data subjects themselves, but is obtained from the Internet, a public register, etc.
Information about the processing should be provided separately from any other information – in practice, separate documents should be prepared (declarations, notices, privacy policies, and etc.). The Art. 29 Working Party, an EU data protection advisory body, advises on using layered privacy statements and push/pull notices[iii]. Information which must be provided to data subjects can also be provided in combination to standardized icons allowing the controller to give a meaningful overview of the intended processing. Where the icons are presented electronically, they should be machine-readable.
In conclusion, we should summarize that the principle of transparency requires providing information to data subjects with regard to every personal data processing, which guarantees their right to be aware of the process and challenge it if needed. Exceptions to this requirement are very limited – where the data subject already has the information or where providing the information proves impossible or would involve a disproportionate effort.
Duly documenting how the principle of transparency is guaranteed becomes even more important in the context of the new principle of accountability according to which controllers carry the burden and must at all times be able to demonstrate compliance with the GDPR requirements. Therefore, it is advisable for all companies to develop mechanisms to ensure the compliance with the transparency requirement – the development of appropriate tools (privacy policies, communications, declarations) as well as procedures for informing the subjects (e.g. in case of breaches of the data security).
TEAM OF DIMITROV, PETROV & CO.
[i] Guidelines on transparency under Regulation 679/2016 of Article 29 Data protection working party (project), p. 5
[ii] Guidelines on transparency under Regulation 679/2016 of Article 29 Data protection working party (project), p. 11
[iii] Guidelines on transparency under Regulation 679/2016 of Article 29 Data protection working party (project), p. 17-18.