Marketing Relevant Rules under GDPR [Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016

Published: May 24, 2019 | 7712 words with about 42 minutes reading time | ©2022 by Bob Smith
Category: Technology | Tags: SPAM FTC

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)

CHAPTER I General Provisions

Article 4 Definitions

For the purposes of this Regulation:

personal data a. information relating to identified or identifiable natural person (data subject) b. identifiable natural person is identified, directly or indirectly by reference to an identifier: name, number, location, online identifier, physical, physiological, genetic, mental, economic, cultural or social identity
processing operation(s) performed personal data including: 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
restriction of processing marking personal data to limiting future processing
profiling any form of automated processing to evaluate, analyse or predict work performance, economic situation, health, preferences, interests, reliability, behavior, location or movements
pseudonymisation processing personal data to no longer be attributed to a specific data subject
filing system personal data accessible according to specific criteria, centralised, decentralised or dispersed on a functional or geographical basis
controller person, public authority, agency determining personal data processing purposes (C/P controller and processor)
processor person, public authority, agency processing personal data on controller behalf
recipient person, public authority, agency where personal data is disclosed.
third party person, public authority, agency other than the data subject, controller or processor
consent freely given, specific, informed and unambiguous indication of data subject agreement to processing of personal data
personal data breach accidental or unlawful destruction, loss, alteration, unauthorised disclosure of personal data
genetic data inherited or acquired genetic characteristics personal data giving physiology or health
biometric data physical, physiological or behavioral characteristic personal data
data concerning health physical or mental health personal data
main establishment controller or processor with establishments in more than one Member State, the place of its central administration in the Union
representative person established in the Union who, designated by controller or processor pursuant to Article 27, represents controller or processor and obligations under this Regulation;
enterprise person engaged in economic activity
group of undertakings controlling undertaking and its controlled undertakings
binding corporate rules personal data protection policies
supervisory authority independent public authority established by a Member State pursuant to Article 51
supervisory authority concerned supervisory authority concerned by personal data processing
cross-border processing processing of personal data taking place across multiple Member States
relevant and reasoned objection draft decision objection as infringement compliance of this Regulation
information society service as defined in Article 1
international organisation organisation and subordinate bodies governed by public international law

CHAPTER II Principles

Article 5 Personal Data Processing

Personal data (a) processed lawfully, fairly, transparently data in relation to data subject (b) purpose limitation collected for specified, explicit and legitimate purposes (c) data minimisation adequate, relevant and limited as necessary in relation to processing purposes (d) accuracy accurate, updated, data and inaccuracies erased or rectified without delay (e) storage limitation data stored no longer than necessary for the lawful purpose (f) integrity and confidentiality processed ensuring personal data security including protection against unauthorised unlawful processing, accidental loss, destruction or damage
Accountability Controller shall be responsible for and demonstrate compliance

Article 6 Processing

Processing shall be lawful only if one of the following applies: a. data subject has given consent to personal data processing for one or more specific purposes b. contract performance c. legal obligation d. protect data subject vital interests e. task performance in the public interest or exercise of official authority f. legitimate controller interests

Controller demonstrates data subject has consented to personal data processing
If consent in an agreement including matters must be clearly distinguishable from the other matters
Data subject shall have the right to withdraw consent at any time
Consent can’t be conditional for the performance of that contract.

When Article 6.1.a applies, consentor must be at least 16 years old

Article 9 Special Personal Data Categories

Processing of racial, ethnic origin, political opinions, religious, philosophical beliefs, union membership, genetic data, biometric, health, sex life or sexual orientation data to identify a person shall be prohibited.

Article 10 Criminal Convictions and Offences

Processing of criminal convictions, offences, related security measures will only be carried out by the official authority authorised by Union or Member State law

Article 11 Processing Not Requiring Identification

When controller processes no longer require data subject identification shall not be obliged to maintain, acquire or process additional information
Where controller demonstrates it is not in a position to identify data subject, controller shall inform the data subject accordingly, if possible.

CHAPTER III Data Subject Rights - Section 1 Transparency and Modalities

Article 12 Data Subject Transparent Information, Communication and Modalities

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.
Controller shall facilitate the exercise of data subject rights under Articles 15 to 22. In the cases referred to in Article 11(2), the controller shall not refuse to act on the request of the data subject for exercising his or her rights under Articles 15 to 22, unless the controller demonstrates that it is not in a position to identify the data subject.
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.
If the controller does not take action on the request of the data subject, the controller shall inform the data subject without delay and at the latest within one month of receipt of the request of the reasons for not taking action and on the possibility of lodging a complaint with a supervisory authority and seeking a judicial remedy.
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 b. refuse to act on the request The controller shall bear the burden of demonstrating the manifestly unfounded or excessive character of the request.
Without prejudice to Article 11, where the controller has reasonable doubts concerning the identity of the natural person making the request referred to in Articles 15 to 21, the controller may request the provision of additional information necessary to confirm the identity of the data subject.
Information to be provided to data subjects pursuant to Articles 13 and 14 may be provided in combination with standardised icons in order to give in an easily visible, intelligible and clearly legible manner a meaningful overview of the intended processing. Where the icons are presented electronically they shall be machine-readable.
Commission shall be empowered to adopt delegated acts in accordance with Article 92 for the purpose of determining the information to be presented by the icons and the procedures for providing standardised icons.

Section 2 Information and access to personal data

Article 13 Information to be provided where personal data are collected from the data subject

Where personal data relating to a data subject are collected 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; 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 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.
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: 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. 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 to object to processing as well as the right to data portability; c. 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. 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. 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.
Where the controller intends to further process the personal data for a purpose other than that for which the personal data were collected, 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.
Paragraphs 1, 2 and 3 shall not apply where and insofar as the data subject already has the information.

Article 14 Information to be provided where personal data have not been obtained from the data subject

Where personal data have not been obtained from the data subject, the controller shall provide the data subject with 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. the categories of personal data concerned; e. the recipients or categories of recipients of the personal data, if any; f. where applicable, 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 to obtain a copy of them or where they have been made available.
In addition to the information referred to in paragraph 1, the controller shall provide the data subject with the following 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; 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 and to object to processing as well as the right to data portability; d. where 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; e. the right to lodge a complaint with a supervisory authority; f. from which source the personal data originate, and if applicable, whether it came from publicly accessible sources; 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.
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.
Where the controller intends to further process the personal data for a purpose other than that for which the personal data were 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.
Paragraphs 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.

Article 15 Data Subject Right of Success

Data subject shall have right to obtain from controller confirmation if personal data is being processed and access and following information a. processing purposes b. categories c. transferred recipients d. storage period e. certification of rectification or erasure of personal data f. right to lodge a complaint with a supervisory authority g. sources h. automated decision-making and profiling and consequences
Third country or international organisation transfer right to be informed
Controller provides personal data
Right to obtain paragraph 3 copy shall not adversely affect others rights and freedoms

Article 16 Rectification Right

Data subject shall have the right to inaccurate personal data rectified and supplemented

Article 17 Right to be Forgotten

Data subject shall have the right of personal data erasure without undue delay where (a) possession is no longer necessary (b) consent withdrawn or no legal grounds exist (c) objection pursuant to Article 21 no legitimate grounds pursuant to Article 21 (d) data was unlawfully collected (e) erased for legal obligation compliance (f) information society services referred to in Article 8
Where has been made public
Paragraphs 1 and 2 shall not apply to the extent that processing is necessary: a. exercising right of freedom of expression and information b. legal obligation under Union or Member State law c. public health interest d. public interest, scientific or historical research purposes or statistical purposes e. establishment, exercise or defence of legal claims

Article 18 Restriction of Processing

Data subject shall have right to obtain 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.
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.
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.

Article 19 Notification Obligation Regarding Rectification, Erasure or Restriction

The controller shall communicate any rectification or erasure of personal data or restriction of processing carried out in accordance with Article 16, Article 17(1) and Article 18 to each recipient to whom the personal data have been disclosed, unless this proves impossible or involves disproportionate effort. The controller shall inform the data subject about those recipients if the data subject requests it.

Article 20 Data Portability

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.
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.
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.
The right referred to in paragraph 1 shall not adversely affect the rights and freedoms of others.

Article 21 Right to Object

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.
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.
Where the data subject objects to processing for direct marketing purposes, the personal data shall no longer be processed for such purposes.
At the latest at the time of the first communication with the data subject, the right referred to in paragraphs 1 and 2 shall be explicitly brought to the attention of the data subject and shall be presented clearly and separately from any other information.
In the context of the use of information society services, and notwithstanding Directive 2002/58/EC, the data subject may exercise his or her right to object by automated means using technical specifications.
Where personal data are processed for scientific or historical research purposes or statistical purposes pursuant to Article 89(1), the data subject, on grounds relating to his or her particular situation, shall have the right to object to processing of personal data concerning him or her, unless the processing is necessary for the performance of a task carried out for reasons of public interest.

Article 22 Automated individual decision-making, including profiling

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.
Paragraph 1 shall not apply if the decision: a. is necessary for entering into, or performance of, a contract between the data subject and a data controller; b. is authorised by Union or Member State law to which the controller is subject and which also lays down suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests; or c. is based on the data subject’s explicit consent.
In the cases referred to in points (a) and (c) of paragraph 2, the data controller shall implement suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests, at least the right to obtain human intervention on the part of the controller, to express his or her point of view and to contest the decision.
Decisions referred to in paragraph 2 shall not be based on special categories of personal data referred to in Article 9(1), unless point (a) or (g) of Article 9(2) applies and suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests are in place.

CHAPTER IV Controller and Processor (C/P)

Article 24 Controller Responsibility

Taking into account the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons, the controller shall implement appropriate technical and organisational measures to ensure and to be able to demonstrate that processing is performed in accordance with this Regulation. Those measures shall be reviewed and updated where necessary.
Where proportionate in relation to processing activities, the measures referred to in paragraph 1 shall include the implementation of appropriate data protection policies by the controller.
Adherence to approved codes of conduct as referred to in Article 40 or approved certification mechanisms as referred to in Article 42 may be used as an element by which to demonstrate compliance with the obligations of the controller.

Article 25 Data Protection

Taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for rights and freedoms of natural persons posed by the processing, the controller shall, both at the time of the determination of the means for processing and at the time of the processing itself, implement appropriate technical and organisational measures, such as pseudonymisation, which are designed to implement data-protection principles, such as data minimisation, in an effective manner and to integrate the necessary safeguards into the processing in order to meet the requirements of this Regulation and protect the rights of data subjects.
The controller shall implement appropriate technical and organisational measures for ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed. That obligation applies to the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility. In particular, such measures shall ensure that by default personal data are not made accessible without the individual’s intervention to an indefinite number of natural persons.
An approved certification mechanism pursuant to Article 42 may be used as an element to demonstrate compliance with the requirements set out in paragraphs 1 and 2 of this Article.

Article 26 Joint Controllers

Two or more controllers shall be joint controllers transparently determine compliance responsibilities data subject rights
joint controllers arrangement details shall be made available to the data subject.
Data subject may exercise rights under this Regulation in respect of and against each controller

Article 27 Controller or Processor (C/P) Representatives Outside of the Union

Where Article 3 applies, C/P shall designate a Union representative in writing
Shall not apply to occasional processing not including large scale, Article 9 special categories, Article 10 criminal public authority or body.
Representative shall be established in one of the Member States where the data subjects, whose personal data are processed in relation to the offering of goods or services to them, or whose behaviour is monitored, are.
The representative shall be mandated by the controller or processor to be addressed in addition to or instead of the controller or the processor by, in particular, supervisory authorities and data subjects, on all issues related to processing, for the purposes of ensuring compliance with this Regulation.
The designation of a representative by the controller or processor shall be without prejudice to legal actions which could be initiated against the controller or the processor themselves.

Article 28 Processor

Where processing is to be carried out on behalf of a controller, the controller shall use only processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject.
The processor shall not engage another processor without prior specific or general written authorisation of the controller. In the case of general written authorisation, the processor shall inform the controller of any intended changes concerning the addition or replacement of other processors, thereby giving the controller the opportunity to object to such changes.
Processing by a processor shall be governed by a contract or other legal act under Union or Member State law, that is binding on the processor with regard to the controller and that sets out the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects and the obligations and rights of the controller. That contract or other legal act shall stipulate, in particular, that the processor: a. processes the personal data only on documented instructions from the controller, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by Union or Member State law to which the processor is subject; in such a case, the processor shall inform the controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest; b. ensures that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; c. takes all measures required pursuant to Article 32; d. respects the conditions referred to in paragraphs 2 and 4 for engaging another processor; e. taking into account the nature of the processing, assists the controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfillment of the controller’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III; f. assists the controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 taking into account the nature of processing and the information available to the processor; g. at the choice of the controller, deletes or returns all the personal data to the controller after the end of the provision of services relating to processing, and deletes existing copies unless Union or Member State law requires storage of the personal data; h. makes available to the controller all information necessary to demonstrate compliance with the obligations laid down in this Article and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller. With regard to point (h) of the first subparagraph, the processor shall immediately inform the controller if, in its opinion, an instruction infringes this Regulation or other Union or Member State data protection provisions.
Where a processor engages another processor for carrying out specific processing activities on behalf of the controller, the same data protection obligations as set out in the contract or other legal act between the controller and the processor as referred to in paragraph 3 shall be imposed on that other processor by way of a contract or other legal act under Union or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of this Regulation. Where that other processor fails to fulfil its data protection obligations, the initial processor shall remain fully liable to the controller for the performance of that other processor’s obligations.
Adherence of a processor to an approved code of conduct as referred to in Article 40 or an approved certification mechanism as referred to in Article 42 may be used as an element by which to demonstrate sufficient guarantees as referred to in paragraphs 1 and 4 of this Article.
Without prejudice to an individual contract between the controller and the processor, the contract or the other legal act referred to in paragraphs 3 and 4 of this Article may be based, in whole or in part, on standard contractual clauses referred to in paragraphs 7 and 8 of this Article, including when they are part of a certification granted to the controller or processor pursuant to Articles 42 and 43.
The Commission may lay down standard contractual clauses for the matters referred to in paragraph 3 and 4 of this Article and in accordance with the examination procedure referred to in Article 93(2).
A supervisory authority may adopt standard contractual clauses for the matters referred to in paragraph 3 and 4 of this Article and in accordance with the consistency mechanism referred to in Article 63.
The contract or the other legal act referred to in paragraphs 3 and 4 shall be in writing, including in electronic form.
Without prejudice to Articles 82, 83 and 84, if a processor infringes this Regulation by determining the purposes and means of processing, the processor shall be considered to be a controller in respect of that processing.

Article 29 Controller or Processor (C/P) Processing

Processor and any person acting under the Controller authority shall not process data except on instructions from the controller unless required to do so by Union or Member State law.

Article 30 Processing Activities Records

Each controller and, where applicable, the controller’s representative, shall maintain a record of processing activities under its responsibility. That record shall contain all of the following information: a. the name and contact details of the controller and, where applicable, the joint controller, the controller’s representative and the data protection officer; b. the purposes of the processing; c. a description of the categories of data subjects and of the categories of personal data; d. the categories of recipients to whom the personal data have been or will be disclosed including recipients in third countries or international organisations; e. where applicable, transfers of personal data to a third country or an international organisation, including the identification of that third country or international organisation and, in the case of transfers referred to in the second subparagraph of Article 49(1), the documentation of suitable safeguards; f. where possible, the envisaged time limits for erasure of the different categories of data; g. where possible, a general description of the technical and organisational security measures referred to in Article 32(1).
Each processor and, where applicable, the processor’s representative shall maintain a record of all categories of processing activities carried out on behalf of a controller, containing: a. the name and contact details of the processor or processors and of each controller on behalf of which the processor is acting, and, where applicable, of the controller’s or the processor’s representative, and the data protection officer; b. the categories of processing carried out on behalf of each controller; c. where applicable, transfers of personal data to a third country or an international organisation, including the identification of that third country or international organisation and, in the case of transfers referred to in the second subparagraph of Article 49(1), the documentation of suitable safeguards; d. where possible, a general description of the technical and organisational security measures referred to in Article 32(1).
The records referred to in paragraphs 1 and 2 shall be in writing, including in electronic form.
The controller or the processor and, where applicable, the controller’s or the processor’s representative, shall make the record available to the supervisory authority on request.
The obligations referred to in paragraphs 1 and 2 shall not apply to an enterprise or an organisation employing fewer than 250 persons unless the processing it carries out is likely to result in a risk to the rights and freedoms of data subjects, the processing is not occasional, or the processing includes special categories of data as referred to in Article 9(1) or personal data relating to criminal convictions and offences referred to in Article 10.

Article 31 Supervisory Authority Cooperation

Controller and processor shall cooperate with supervisory authority

Article 32 Processing Security

Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the controller and the processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk a. the pseudonymisation and encryption of personal data; b. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; c. the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; d. a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
In assessing the appropriate level of security account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed.
Adherence to an approved code of conduct as referred to in Article 40 or an approved certification mechanism as referred to in Article 42 may be used as an element by which to demonstrate compliance with the requirements set out in paragraph 1 of this Article.
The controller and processor shall take steps to ensure that any natural person acting under the authority of the controller or the processor who has access to personal data does not process them except on instructions from the controller, unless he or she is required to do so by Union or Member State law.

Article 33 Notification of a personal data breach to the supervisory authority

In the case of a personal data breach, the controller shall without undue delay and, where feasible, not later than 72 hours after having become aware of it, notify the personal data breach to the supervisory authority competent in accordance with Article 55, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons. Where the notification to the supervisory authority is not made within 72 hours, it shall be accompanied by reasons for the delay.
The processor shall notify the controller without undue delay after becoming aware of a personal data breach.
The notification referred to in paragraph 1 shall at least: a. describe the nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned; b. communicate the name and contact details of the data protection officer or other contact point where more information can be obtained; c. describe the likely consequences of the personal data breach; d. describe the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.
Where, and in so far as, it is not possible to provide the information at the same time, the information may be provided in phases without undue further delay.
The controller shall document any personal data breaches, comprising the facts relating to the personal data breach, its effects and the remedial action taken. That documentation shall enable the supervisory authority to verify compliance with this Article.

Article 34 Communication of a personal data breach to the data subject

When the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons, the controller shall communicate the personal data breach to the data subject without undue delay.
The communication to the data subject referred to in paragraph 1 of this Article shall describe in clear and plain language the nature of the personal data breach and contain at least the information and measures referred to in points (b), (c) and (d) of Article 33(3).
The communication to the data subject referred to in paragraph 1 shall not be required if any of the following conditions are met: a. the controller has implemented appropriate technical and organisational protection measures, and those measures were applied to the personal data affected by the personal data breach, in particular those that render the personal data unintelligible to any person who is not authorised to access it, such as encryption; b. the controller has taken subsequent measures which ensure that the high risk to the rights and freedoms of data subjects referred to in paragraph 1 is no longer likely to materialise; c. it would involve disproportionate effort. In such a case, there shall instead be a public communication or similar measure whereby the data subjects are informed in an equally effective manner.
If the controller has not already communicated the personal data breach to the data subject, the supervisory authority, having considered the likelihood of the personal data breach resulting in a high risk, may require it to do so or may decide that any of the conditions referred to in paragraph 3 are met.

Article 35 Data protection impact assessment

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.
Controller shall seek DPO advice when carrying out a data protection impact assessment
A data protection impact assessment referred to in paragraph 1 shall in particular be required in the case of: a. 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; b. 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; or c. a systematic monitoring of a publicly accessible area on a large scale.
The supervisory authority shall establish and make public a list of the kind of processing operations which are subject to the requirement for a data protection impact assessment pursuant to paragraph 1. The supervisory authority shall communicate those lists to the Board referred to in Article 68.
The supervisory authority may also establish and make public a list of the kind of processing operations for which no data protection impact assessment is required. The supervisory authority shall communicate those lists to the Board.
Prior to the adoption of the lists referred to in paragraphs 4 and 5, the competent supervisory authority shall apply the consistency mechanism referred to in Article 63 where such lists involve processing activities which are related to the offering of goods or services to data subjects or to the monitoring of their behaviour in several Member States, or may substantially affect the free movement of personal data within the Union.
The assessment shall contain at least: a. a systematic description of the envisaged processing operations and the purposes of the processing, including, where applicable, the legitimate interest pursued by the controller; b. an assessment of the necessity and proportionality of the processing operations in relation to the purposes; c. an assessment of the risks to the rights and freedoms of data subjects referred to in paragraph 1; and d. the measures envisaged to address the risks, including safeguards, security measures and mechanisms to ensure the protection of personal data and to demonstrate compliance with this Regulation taking into account the rights and legitimate interests of data subjects and other persons concerned.
Compliance with approved codes of conduct referred to in Article 40 by the relevant controllers or processors shall be taken into due account in assessing the impact of the processing operations performed by such controllers or processors, in particular for the purposes of a data protection impact assessment.
Where appropriate, the controller shall seek the views of data subjects or their representatives on the intended processing, without prejudice to the protection of commercial or public interests or the security of processing operations.
Where processing pursuant to point (c) or (e) of Article 6(1) has a legal basis in Union law or in the law of the Member State to which the controller is subject, that law regulates the specific processing operation or set of operations in question, and a data protection impact assessment has already been carried out as part of a general impact assessment in the context of the adoption of that legal basis, paragraphs 1 to 7 shall not apply unless Member States deem it to be necessary to carry out such an assessment prior to processing activities.
Where necessary, the controller shall carry out a review to assess if processing is performed in accordance with the data protection impact assessment at least when there is a change of the risk represented by processing operations.

Section 4 Data protection officer (DPO)

Article 37 Designation of the data protection officer (DPO)

Controller or Procecessor (C/P) shall designate a DPO in any case where: a. processing carried out by public authority or body b. C/P core activities … require large scale monitoring of data subjects c. C/P core activities operate large scale Article 9 special categories and Article 10 criminal data
One DPO may preside over a group of private or public authoritiers, controllers, or processors
DPOs shall be expert in data protection law and practices able to fulfil tasks in Article 39
DPOs may be controller or processor staff or fulfil duties as service contractor
Controller or processor shall publish DPO contact details

Article 38 Position of the data protection officer

Controller and Processor (C&P):

ensures DPO involvement in personal data protection
support and provide necessary resources to DPO performing Article 39 tasks
Protect DPO from receive any instructions, dismissed, or penalised in the performance of tasks
Reports the DPO directly to the highest management level
Allow Data subjects direct access to DPO
DPOs shall be bound by secrecy or confidentiality task performance
DPOs may perform other non-conflicting tasks and duties

CHAPTER V Transfers of personal data to third countries or international organisations

Article 44 General principle for transfers

Personal data transfer to a another country or international organisation must comply with all Article 44 provisions.

Article 45 Transfers on the basis of an adequacy decision

Personal data third country or international organisation transfers to Commission approved destinations ensuring adequate protection levels shall not require any specific authorisation.

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