GDPR compliance guide for online businesses outside of the European Union (Part 4 of 5)
The GDPR recognizes the protection of personal data as a fundamental human right. Prepare to field data subject requests now to save time and money down the line.
When you process the personal data of individuals, you should be well versed in the rights of those individuals to their data. As other jurisdictions replicate the General Data Protection Regulation (GDPR)’s approach to data protection, it’s not a question of if but when you will receive a data subject request. You should prepare to handle these requests in advance so you don’t incur unnecessary costs or miss the one-month deadline when you receive one.
This article is Part 4 of 5 in our series to provide a comprehensive guide for online businesses outside of the European Union to comply with the GDPR.
The GDPR recognizes the protection of personal data as a fundamental right, tracing its origins back to the right to a private life as agreed in the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations in 1948.
It's important to keep this context in mind when thinking about requests from data subjects and how the regulators approach them. You generally have one month to respond to requests by data subjects, and you must do so free of charge. The requests may ask to exercise any of the following rights, which have limitations in certain situations:
Right to be informed
Right of access
Right to rectification
Right to erasure ("right to be forgotten")
Right to restriction of processing
Right to data portability
Right to object
Right not to be subject to profiling
Data subjects' rights (Articles 12-23)
The GDPR allows the data controller up to a month to respond to a request by a data subject, with the possibility of extending the duration by two additional months, depending on the complexity and volume of requests.
Article 12(3): The controller shall provide information on action taken on a request under Articles 15 to 22 to the data subject without undue delay and in any event within one month of receipt of the request. That period may be extended by two further months where necessary, taking into account the complexity and number of the requests. The controller shall inform the data subject of any such extension within one month of receipt of the request, together with the reasons for the delay. Where the data subject makes the request by electronic form means, the information shall be provided by electronic means where possible, unless otherwise requested by the data subject.
You are required to respond to requests by data subjects free of charge unless you can prove they are unfounded or excessive.
Article 12(5): Information provided under Articles 13 and 14 and any communication and any actions taken under Articles 15 to 22 and 34 shall be provided free of charge. Where requests from a data subject are manifestly unfounded or excessive, in particular because of their repetitive character, the controller may either:
(a) charge a reasonable fee taking into account the administrative costs of providing the information or communication or taking the action requested; or
(b) refuse to act on the request.
The controller shall bear the burden of demonstrating the manifestly unfounded or excessive character of the request.
Below is a description of the eight data subject rights outlined in the GDPR.
Article 12(1): The controller shall take appropriate measures to provide any information referred to in Articles 13 and 14 and any communication under Articles 15 to 22 and 34 relating to processing to the data subject in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child. The information shall be provided in writing, or by other means, including, where appropriate, by electronic means. When requested by the data subject, the information may be provided orally, provided that the identity of the data subject is proven by other means.
Right of access: As part of their right of access, data subjects can request the data you have collected from them. In your response, you must provide them with this data and inform them of their rights to erasure, rectification, and file a complaint with a supervisory authority.
Article 15(1): The data subject shall have the right to obtain from the controller confirmation as to whether or not personal data concerning him or her are being processed, and, where that is the case, access to the personal data and the following information:
(a) the purposes of the processing;
(b) the categories of personal data concerned;
(c) 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;
(d) where possible, the envisaged period for which the personal data will be stored, or, if not possible, the criteria used to determine that period;
(e) 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;
(f) the right to lodge a complaint with a supervisory authority;
(g) where the personal data are not collected from the data subject, any available information as to their source;
(h) the existence of automated decision-making, including profiling, referred to in Article 22(1) and (4) 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.
Right to rectification: You must immediately correct and complete any data about the data subject when requested to do so. If you disclosed the personal data of the subject to other parties, you are also required to inform them of these corrections.
Article 16: The data subject shall have 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.
Right to erasure ("right to be forgotten"): This type of request is potentially the highest risk and most costly from the perspective of an online business, especially if you have shared the personal data in any way with other parties. Not only are you required to erase the data from your records, but you are also required to make reasonable efforts to instruct other controllers that possess the data as a result of your processing.
Article 17(1): 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 where one of the following grounds applies:
(a) the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;
(b) the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing;
(c) the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2);
(d) the personal data have been unlawfully processed;
(e) the personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject;
(f) the personal data have been collected in relation to the offer of information society services referred to in Article 8(1).
If you've made the personal data you process publicly available, it will be your responsibility to show you have taken reasonable steps and implemented technical measures to honor the right of the data subject to be forgotten. It is critical to mitigate the potential fallout from such requests in advance while designing your data processes so you don't end up in a situation where you can be at fault for not having done enough to protect your customers' data.
Article 17(2): Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform 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.
The provisions for the right to be forgotten are also where there is a significant potential for disagreement as some of the information may be protected under freedom of expression, or you may otherwise be required to retain the information for compliance with a legal obligation. If your business operates in a field where these exemptions apply or where you may be required by law to retain the data, you should seek legal counsel to have a plan for data retention and erasure. We work with leading privacy law experts that can help you with this and other requirements.
Article 17(3): Paragraphs 1 and 2 shall not apply to the extent that processing is necessary:
(a) for exercising the right of freedom of expression and information;
(b) for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
(c) for reasons of public interest in the area of public health in accordance with points (h) and (i) of Article 9(2) as well as Article 9(3);
(d) for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) in so far as the right referred to in paragraph 1 is likely to render impossible or seriously impair the achievement of the objectives of that processing; or
(e) for the establishment, exercise or defence of legal claims.
Right to restriction of processing: In certain situations, such as when the data subject believes your data processing to be unlawful, wishes to withdraw his or her consent from processing, or when the data is inaccurate, you may be required to restrict processing activities.
This type of request has the potential to be burdensome if your processing activities are interconnected and make it difficult to restrict certain activities while allowing others.
There is also a requirement for you to inform the data subject when you resume the processing activities, which can be easy to overlook if you don't put a plan in place in advance. If you disclosed the subject's data to other parties, you are also required to notify them of the restrictions to put in place.
Article 18(1): The data subject shall have the right to obtain from the controller restriction of processing where one of the following applies:
(a) the accuracy of the personal data is contested by the data subject, for a period enabling the controller to verify the accuracy of the personal data;
(b) the processing is unlawful and the data subject opposes the erasure of the personal data and requests the restriction of their use instead;
(c) 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;
(d) the data subject has objected to processing pursuant to Article 21(1) pending the verification whether the legitimate grounds of the controller override those of the data subject.
Article 18(2): Where processing has been restricted under paragraph 1, such personal data shall, with the exception of storage, only be processed with the data subject's consent or for the establishment, exercise or defence of legal claims or for the protection of the rights of another natural or legal person or for reasons of important public interest of the Union or of a Member State.
Article 18(3): A data subject who has obtained restriction of processing pursuant to paragraph 1 shall be informed by the controller before the restriction of processing is lifted.
Right to data portability: With this type of a request, the data subject can ask for a copy of all data you have processed about them and also request this data to be transferred to another controller (including your competitors), where technically feasible.
Article 20(1): The data subject shall have the right to receive the personal data concerning him or her, which he or she has provided to a controller, in a structured, commonly used and machine-readable 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, where:
(a) the processing is based on consent pursuant to point (a) of Article 6(1) or point (a) of Article 9(2) or on a contract pursuant to point (b) of Article 6(1); and
(b) the processing is carried out by automated means.
Article 20(2): In exercising his or her right to data portability pursuant to paragraph 1, the data subject shall have the right to have the personal data transmitted directly from one controller to another, where technically feasible.
Article 20(3): The exercise of the right referred to in paragraph 1 of this Article shall be without prejudice to Article 17. That right shall not apply to processing necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.
Article 20(4): The right referred to in paragraph 1 shall not adversely affect the rights and freedoms of others.
Right to object: This requirement is of most relevance to your marketing activities. Whether it's in the form of trackers for online ads or direct e-mail campaigns, you must honor objections by a data subject
Article 21(1): The data subject shall have the right to object, on grounds relating to his or her particular situation, at any time to processing of personal data concerning him or her which is based on point (e) or (f) of Article 6(1), including profiling based on those provisions. The controller shall no longer process the personal data 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 defence of legal claims.
Article 21(2): Where personal data are processed for direct marketing purposes, the data subject shall have the right to object at any time to processing of personal data concerning him or her for such marketing, which includes profiling to the extent that it is related to such direct marketing.
Article 21(3): Where the data subject objects to processing for direct marketing purposes, the personal data shall no longer be processed for such purposes.
Right not to be subject to profiling: Where you are using an automated decision-making process, including profiling, you must ensure that this processing does not produce a legal effect for the data subject.
Article 22(1): 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.
Many businesses underestimate the extent to which their processing involves automated decision-making. The reality is most online businesses are responsible for such activities through their use of online advertising and payment processing technologies.
As the final note on data subject rights, it's worth highlighting the importance of the records of processing activities one more time, which we covered in part three of our guide. As the data controller, it is your responsibility to know how your processors are using your customers' data and preserve their rights. This is not possible to do without records in place, and it's tough to prove you have made reasonable efforts to comply when no documentation of your efforts exists.
It's also important to remember that you're required to provide data subjects in the EU with the contact information of your EU representative. If you don't have an EU representative, we offer an instant solution to appoint your EU representative. You can read more about this requirement in part two of our guide.
While I've written this article to be as helpful as possible, it cannot and does not contain legal advice. The legal information is provided for general informational and educational purposes only and is not a substitute for professional advice. Accordingly, before taking any actions based upon such information, I encourage you to consult with the appropriate professionals. We do not provide any kind of legal advice. The use or reliance of any information contained on this site is solely at your own risk.
If you require legal assistance, I am happy to refer you to an attorney specializing in privacy laws and regulations. You can write to me or schedule time to discuss your specific situation in more detail.