Articles 13 and 14 set out the information that is to be provided when personal data is collected from the data subject or not obtained from the data subject, respectively. The rationale for imperfectly duplicating much of the text from Article 13 into Article 14 is not immediately obvious, and remains unclear even after close examination.
Most of the split is obvious:
- Consequences of non-provision in a statutory/contractual obligation situation are clearly only relevant when collecting from the data subject.
- Origin and categories of data, and provision of information when personal data was not obtained from the data subject, are clearly only relevant when not obtaining from the data subject.
There are, however, some peculiar wrinkles:
- Various words which elaborate or emphasise in ways that would be relevant in both cases but don’t appear to materially alter the meaning are present in only one or the other: “all of”, “the fact”, “recipient in a”, “by which”, “further”, “in respect of the data subject”, “the”.
- The additional information to be provided where the controller intends to further process the personal data for an additional purpose (13(3) and 14(4)) differs in strangely inconsistent ways, particularly given that 13(4) and 14(5) exclude information that the data subject already possesses. In particular, a literal reading suggests that where personal data is to be used for an additional purpose, the controller need not disclose that additional purpose (!), its legal basis, nor the categories of data to be processed, but still needs to disclose the legitimate interest pursued when the legal basis is 6(1)(f) legitimate interests. This seems like a peculiar consequence.
I was inspired to perform this analysis while studying IAPP’s European Data Protection text which comments on the odd separation between paragraphs 1 and 2 in each article, but overlooks the distinction made about paragraph 2 in 13(3) and 14(4). Nonetheless, having performed the analysis I am none the wiser.
Here is the side-by-side comparison. Note that there was an amount of manual tweaking to get the text into this form so errors may have been introduced. You should of course only rely on the original text.
| Article 13 Information to be provided where personal data are collected from the data subject |
Article 14 Information to be provided where personal data have not been obtained from the data subject |
| 1. Where personal data | |
| relating to a data subject are collected | have not been obtained |
| from the data subject, the controller shall | |
| , at the time when personal data are obtained, | |
| provide the data subject with | |
| all of | |
| the following information: (a) the identity and the contact details of the controller and, where applicable, of the controller's representative; (b) the contact details of the data protection officer, where applicable; (c) the purposes of the processing for which the personal data are intended as well as the legal basis for the processing; | |
| (d) where the processing is based on point (f) of Article 6(1), the legitimate interests pursued by the controller or by a third party; | (d) the categories of personal data concerned; |
| (e) the recipients or categories of recipients of the personal data, if any; (f) where applicable, | |
| the fact | |
| that the controller intends to transfer personal data to a | |
| recipient in a | |
| third country or international organisation and the existence or absence of an adequacy decision by the Commission, or in the case of transfers referred to in Article 46 or 47, or the second subparagraph of Article 49(1), reference to the appropriate or suitable safeguards and the means | |
| by which | |
| to obtain a copy of them or where they have been made available. 2. In addition to the information referred to in paragraph 1, the controller shall | |
| , at the time when personal data are obtained, | |
| provide the data subject with the following | |
| further | |
| information necessary to ensure fair and transparent processing | |
| in respect of the data subject | |
| : (a) the period for which the personal data will be stored, or if that is not possible, the criteria used to determine that period; | |
| (b) where the processing is based on point (f) of Article 6(1), the legitimate interests pursued by the controller or by a third party; | |
| (b) | (c) |
| the existence of the right to request from the controller access to and rectification or erasure of personal data or restriction of processing concerning the data subject | |
| or | and |
| to object to processing as well as the right to data portability; | |
| (c) | (d) |
| where | |
| the | |
| processing is based on point (a) of Article 6(1) or point (a) of Article 9(2), the existence of the right to withdraw consent at any time, without affecting the lawfulness of processing based on consent before its withdrawal; | |
| (d) | (e) |
| the right to lodge a complaint with a supervisory authority; | |
| (e) whether the provision of personal data is a statutory or contractual requirement, or a requirement necessary to enter into a contract, as well as whether the data subject is obliged to provide the personal data and of the possible consequences of failure to provide such data; | (f) from which source the personal data originate, and if applicable, whether it came from publicly accessible sources; |
| (f) | (g) |
| 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. | |
| 3. The controller shall provide the information referred to in paragraphs 1 and 2: (a) 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; (b) if the personal data are to be used for communication with the data subject, at the latest at the time of the first communication to that data subject; or (c) if a disclosure to another recipient is envisaged, at the latest when the personal data are first disclosed. | |
| 3. | 4. |
| Where the controller intends to further process the personal data for a purpose other than that for which the personal data were | |
| collected | obtained |
| , the controller shall provide the data subject prior to that further processing with information on that other purpose and with any relevant further information as referred to in paragraph 2. | |
| 4. | 5. |
| Paragraphs | |
| 1, 2 and 3 | 1 to 4 |
| shall not apply where and insofar as | |
| : (a) | |
| the data subject already has the information | |
| . | ; (b) 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, subject to the conditions and safeguards referred to in Article 89(1) or in so far as the obligation referred to in paragraph 1 of this Article is likely to render impossible or seriously impair the achievement of the objectives of that processing. 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; (c) obtaining or disclosure is expressly laid down by Union or Member State law to which the controller is subject and which provides appropriate measures to protect the data subject's legitimate interests; or (d) 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. |
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