The EU General Data Protection Regulation (GDPR)
A Commentary
Lukas Feiler, Nikolaus Forgó, Michaela Weigl
Published: 2018
Pages: 333
eBook: 9781787421387
From May 2018, the General Data Protection Regulation 2016/679 (GDPR) replaces Data Protection Directive 95/46/EC, representing a significant overhaul of data protection law in the European Union. Applicable to all EU Member States, the GDPR’s relevance spans not only organisations operating within the EU, but also those operating outside the EU.
This commentary, published in association with German Law Publishers, provides a detailed look at the individual articles of the GDPR and is an essential resource aimed at helping legal practitioners prepare for compliance.
Content includes:
•full text of the GDPR’s articles and recitals;
•article-by-article commentary explaining the individual provisions and elements of each article;
•a general introduction to data protection law with a focus on issues such as:
• how to adapt a compliance management program
•whether or not to appoint a data protection officer
•‘privacy by design’ and ‘privacy by default’
• the consequences of non-compliance with the GDPR
•data portability
• the need for data protection impact assessments
•a detailed index.
In addition to lawyers and in-house counsel, this book is also suitable for law professors and students, and offers comprehensive coverage of this increasingly important area of data protection legislation.
Table of Contents
| Cover | Cover 1 | |
|---|---|---|
| Title page | 1 | |
| Copyright information | 2 | |
| Table of contents | 3 | |
| List of abbreviations | 9 | |
| List of Recitals of the General Data Protection Regulation | 11 | |
| Introduction to the General Data Protection Regulation | 13 | |
| 1. Introduction | 13 | |
| 2. The most important compliance steps to be implemented | 13 | |
| 3. Basic terms of the GDPR | 14 | |
| 4. The scope of the GDPR | 15 | |
| 4.1 Material scope – what processing activities are covered? | 15 | |
| 4.2 Personal scope – who does the GDPR apply to? | 15 | |
| 4.3 Territorial scope – where does the GDPR apply? | 16 | |
| 5. The relationship with national data protection laws | 16 | |
| 6. The principles relating to the processing of personal data | 18 | |
| 7. Legal basis requirement for any data processing activity | 19 | |
| 7.1 Available legal bases | 19 | |
| 7.2 Requirements for valid consent | 20 | |
| 8. Information obligations and privacy notices | 22 | |
| 9. Rights of the data subject | 24 | |
| 10. Profiling and automated individual decision-making | 25 | |
| 11. Data protection compliance programme | 26 | |
| 11.1 Organisational measures including data protection strategies | 26 | |
| 11.2 Technical measures including privacy by design and by default | 26 | |
| 12. Maintaining a record of processing activities | 27 | |
| 13. Data protection impact assessment and consultation obligation with supervisory authority | 28 | |
| 14. Data protection officer | 29 | |
| 15. Data security | 30 | |
| 15.1 Mandatory data security measures | 30 | |
| 15.2 Obligation to notify personal data breaches | 31 | |
| 16. Mandatory arrangements between joint controllers | 33 | |
| 17. Obligations in case of outsourcing | 33 | |
| 18. International data transfers | 34 | |
| 18.1 Transfers not subject to notification or approval | 35 | |
| 18.2 Transfers subject to notification | 36 | |
| 18.3 Transfers subject to approval | 36 | |
| 19. International jurisdiction of supervisory authorities | 37 | |
| 20. Administrative fines and other sanctions | 38 | |
| 21. Civil liability and private enforcement | 40 | |
| Text of the General Data Protection Regulation and commentary | 41 | |
| provisions | 43 | |
| Article 1 Subject-matter and objectives | 43 | |
| Article 2 Material scope | 47 | |
| Article 3 Territorial scope | 51 | |
| Article 4 Definitions | 56 | |
| Chapter II – Principles | 75 | |
| Article 5 Principles relating to processing of personal data | 75 | |
| Article 6 Lawfulness of processing | 81 | |
| Article 7 Conditions for consent | 90 | |
| Article 8 Conditions applicable to child’s consent in relation to information society services | 93 | |
| Article 9 Processing of special categories of personal data | 96 | |
| offences | 102 | |
| Article 11 Processing which does not require identification | 103 | |
| Chapter III – Rights of the data subject | 105 | |
| Section 1 – Transparency and modalities | 105 | |
| Article 12 Transparent information, communication and modalities for the exercise of the rights of the data subject | 105 | |
| Section 2 – Information and access to personal data | 109 | |
| Article 13 IInformation to be provided where personal data are collected from the data subject | 109 | |
| Article 14 Information to be provided where personal data have not been obtained from the data subject | 115 | |
| Article 15 Right of access by the data subject | 120 | |
| Section 3 – Rectification and erasure | 123 | |
| Article 16 Right to rectification | 123 | |
| Article 17 Right to erasure (‘right to be forgotten’) | 124 | |
| Article 18 Right to restriction of processing | 128 | |
| Article 19 Notification obligation regarding rectification or erasure of personal data or restriction of processing | 130 | |
| Article 20 Right to data portability | 131 | |
| Section 4 – Right to object and automated individual decision-making | 135 | |
| Article 21 Right to data portability | 135 | |
| Article 22 Automated individual decision-making, including profiling | 138 | |
| Section 5 – Restrictions | 142 | |
| Article 23 Restrictions | 142 | |
| and processor | 145 | |
| Section 1 – General obligations | 145 | |
| Article 24 Responsibility of the controller | 145 | |
| Article 25 Data protection by design and by default | 149 | |
| Article 26 Joint controllers | 152 | |
| Article 27 Representatives of controllers or processors not established in the Union | 154 | |
| Article 28 Processor | 157 | |
| Article 29 Processing under the authority of the controller or processor | 162 | |
| Article 30 Records of processing activities | 163 | |
| Article 31 Cooperation with the supervisory authority | 166 | |
| Section 2 – Security of personal data | 167 | |
| Article 32 Security of processing | 167 | |
| Article 33 Notification of a personal data breach to the supervisory authority | 171 | |
| Article 34 Communication of a personal data breach to the data subject | 174 | |
| Section 3 – Data protection impact assessment and prior consultation | 177 | |
| Article 35 Data protection impact assessment | 177 | |
| Article 36 Prior consultation | 185 | |
| Section 4 – Data protection officer | 188 | |
| Article 37 Designation of the data protection officer | 188 | |
| Recital | 188 | |
| Commentary | 189 | |
| Article 38 Position of the data protection officer | 194 | |
| Commentary | 194 | |
| Article 39 Tasks of the data protection officer | 197 | |
| Commentary | 197 | |
| Section 5 – Codes of conduct and certification | 199 | |
| Article 40 Codes of conduct | 199 | |
| Article 41 Monitoring of approved codes of conduct | 202 | |
| Article 42 Certification | 204 | |
| Article 43 Certification bodies | 206 | |
| personal data to third countries or international organisations | 209 | |
| Article 44 General principle for transfers | 209 | |
| Article 45 Transfers on the basis of an adequacy decision | 211 | |
| Article 46 Transfers subject to appropriate safeguards | 216 | |
| Article 47 Binding corporate rules | 221 | |
| Article 48 Transfers or disclosures not authorised by Union law | 224 | |
| Article 49 Derogations for specific situations | 225 | |
| Article 50 International cooperation for the protection of personal data | 230 | |
| Chapter VI – Independent supervisory authorities | 231 | |
| Section 1 – Independent status | 231 | |
| Article 51 Supervisory authority | 231 | |
| Article 52 Independence | 233 | |
| Article 53 General conditions for the members of the supervisory authority | 235 | |
| Article 54 Rules on the establishment of the supervisory authority | 236 | |
| Section 2 – Competence, tasks and powers | 237 | |
| Article 55 Competence | 237 | |
| Article 56 Competence of the lead supervisory authority | 239 | |
| Article 57 Tasks | 246 | |
| Article 58 Powers | 249 | |
| Article 59 Activity reports | 252 | |
| Chapter VII – Cooperation and consistency | 253 | |
| Section 1 – Cooperation | 253 | |
| Article 60 Cooperation between the lead supervisory authority and the other supervisory authorities concerned | 253 | |
| Article 61 Mutual assistance | 257 | |
| Article 62 Joint operations of supervisory authorities | 259 | |
| Section 2 – Consistency | 261 | |
| Article 63 Consistency mechanism | 261 | |
| Article 64 Opinion of the Board | 262 | |
| Article 65 Dispute resolution by the Board | 265 | |
| Article 66 Urgency procedure | 269 | |
| Article 67 Exchange of information | 271 | |
| Section 3 – European Data Protection Board | 272 | |
| Article 68 European Data Protection Board | 272 | |
| Article 69 Independence | 273 | |
| Article 70 Tasks of the Board | 274 | |
| Article 71 Reports | 277 | |
| Article 72 Procedure | 278 | |
| Article 73 Chair | 279 | |
| Article 74 Tasks of the Chair | 280 | |
| Article 75 Secretariat | 281 | |
| Article 76 Confidentiality | 282 | |
| Chapter VIII – Remedies, liability and penalties | 283 | |
| Article 77 Right to lodge a complaint with a supervisory authority | 283 | |
| Article 78 Right to an effective judicial remedy against a supervisory authority | 285 | |
| Article 79 Right to an effective judicial remedy against a controller or processor | 287 | |
| Article 80 Representation of data subjects | 289 | |
| Article 81 Suspension of proceedings | 291 | |
| Article 82 Right to compensation and liability | 293 | |
| Article 83 General conditions for imposing administrative fines | 296 | |
| Article 84 Penalties | 303 | |
| Chapter IX – Provisions relating to specific processing situations | 305 | |
| Article 85 Processing and freedom of expression and information | 305 | |
| Article 86 Processing and public access to official documents | 307 | |
| Article 87 Processing of the national identification number | 309 | |
| Article 88 Processing in the context of employment | 310 | |
| Article 89 Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes | 312 | |
| Article 90 Obligations of secrecy | 317 | |
| Article 91 Existing data protection rules of churches and religious associations | 318 | |
| Chapter X – Delegated acts and implementing acts | 319 | |
| Article 92 Exercise of the delegation | 319 | |
| Article 93 Committee procedure | 324 | |
| Chapter XI – Final provisions | 325 | |
| Article 94 Repeal of Directive 95/46/EC | 325 | |
| Article 95 Relationship with Directive 2002/58/EC | 327 | |
| Article 96 Relationship with previously concluded Agreements | 328 | |
| Article 97 Commission reports | 329 | |
| Article 98 Review of other Union legal acts on data protection | 330 | |
| Article 99 Entry into force and application | 331 | |
| Keyword index | 333 | |
| About the authors | 341 | |
| About Globe Law and Business | 343 |
Dr Lukas Feiler
Attorney, Baker McKenzie
[email protected]
Dr Lukas Feiler is a partner in the IT practice group of Baker McKenzie’s Vienna office and a Fellow of the Stanford- Vienna Transatlantic Technology Law Forum (TTLF). Dr Feiler holds a PhD in law from the University of Vienna, a certification as a Systems Security Certified Practitioner (SSCP), and a certification as a Certified Information Privacy Professional/ Europe (CIPP/ E). He holds a teaching position for ‘European and International Privacy Law’ at the University of Vienna School of Law and is the author of numerous articles on information technology and data protection law.
Prof. Dr Nikolaus Forgó
Professor, University of Vienna
[email protected]
Prof. Dr Nikolaus Forgó has studied law in Vienna and Paris. From 2000 to 2017 he was full professor for legal informatics and IT law at Leibniz Universität Hannover (Germany); between 2013 and 2017 he also served as data protection officer and chief information officer of this university. He was appointed as full professor of law at the University of Vienna in October 2017 and has been head of the department of innovation and digitalisation since then. He teaches and consults in all fields of IT law, legal informatics, civil law and legal theory and has been responsible for more than 50 research projects including more than 20 EU research projects personally.
Dr Michaela Nebel
Attorney, Baker McKenzie
[email protected]
Dr Michaela Nebel is a partner in the IT practice group of Baker McKenzie’s Frankfurt office. She advises German and international companies on all aspects of IT law, with a strong focus on data protection law. Dr Nebel holds a PhD in law from the University of Passau and certifications as a Certified Information Privacy Professional/ Europe (CIPP/ E) and a Certified Information Privacy Professional/ US (CIPP/ US). She is the author of numerous articles on IT law and data protection law.