EXECUTIVE SUMMARY

WP260 rev.01 – Adopted on 29 November 2017 – As last Revised and Adopted on 11 April 2018

Introduction

1. These guidelines provide practical guidance and interpretative assistance from the Article 29 Working Party (WP29) on the new obligation of transparency concerning the processing of personal data under the General Data Protection Regulation (the “GDPR”). Transparency is an overarching obligation under the GDPR applying to three central areas: (1) the provision of information to data subjects related to fair processing; (2) how data controllers communicate with data subjects in relation to their rights under the GDPR; and (3) how data controllers facilitate the exercise by data subjects of their rights. Insofar as compliance with transparency is required in relation to data processing under Directive (EU) 2016/680, these guidelines also apply to the interpretation of that principle. These guidelines are, like all WP29 guidelines, intended to be generally applicable and relevant to controllers irrespective of the sectoral, industry or regulatory specifications particular to any given data controller. As such, these guidelines cannot address the nuances and many variables which may arise in the context of the transparency obligations of a specific sector, industry or regulated area. However, these guidelines are intended to enable controllers to understand, at a high level, WP29’s interpretation of what the transparency obligations entail in practice and to indicate the approach which WP29 considers controllers should take to being transparent while embedding fairness and accountability into their transparency measures.
2. Transparency is a long established feature of the law of the EU. It is about engendering trust in the processes which affect the citizen by enabling them to understand, and if necessary, challenge those processes. It is also an expression of the principle of fairness in relation to the processing of personal data expressed in Article 8 of the Charter of Fundamental Rights of the European Union. Under the GDPR (Article 5(1)(a)), in addition to the requirements that data must be processed lawfully and fairly, transparency is now included as a fundamental aspect of these principles. Transparency is intrinsically linked to fairness and the new principle of accountability under the GDPR. It also follows from Article 5.2 that the controller must always be able to demonstrate that personal data are processed in a transparent manner in relation to the data subject. Connected to this, the accountability principle requires transparency of processing operations in order that data controllers are able to demonstrate compliance with their obligations under the GDPR.
3. In accordance with Recital 171 of the GDPR, where processing is already under way prior to 25 May 2018, a data controller should ensure that it is compliant with its transparency obligations as of 25 May 2018 (along with all other obligations under the GDPR). This means that prior to 25 May 2018, data controllers should revisit all information provided to data subjects on processing of their personal data (for example in privacy statements/ notices etc.) to ensure that they adhere to the requirements in relation to transparency which are discussed in these guidelines. Where changes or additions are made to such information, controllers should make it clear to data subjects that these changes have been effected in order to comply with the GDPR. WP29 recommends that such changes or additions be actively brought to the attention of data subjects but at a minimum controllers should make this information publicly available (e.g. on their website). However, if the changes or additions are material or substantive, then in line with paragraphs 29 to 32 below, such changes should be actively brought to the attention of the data subject.
4. Transparency, when adhered to by data controllers, empowers data subjects to hold data controllers and processors accountable and to exercise control over their personal data by, for example, providing or withdrawing informed consent and actioning their data subject rights. The concept of transparency in the GDPR is user-centric rather than legalistic and is realised by way of specific practical requirements on data controllers and processors in a number of articles. The practical (information) requirements are outlined in Articles 12-14 of the GDPR. However, the quality, accessibility and comprehensibility of the information is as important as the actual content of the transparency information, which must be provided to data subjects.
5. The transparency requirements in the GDPR apply irrespective of the legal basis for processing and throughout the life cycle of processing. This is clear from Article 12 which provides that transparency applies at the following stages of the data processing cycle:

• before or at the start of the data processing cycle, i.e. when the personal data is being collected either from the data subject or otherwise obtained;
• throughout the whole processing period, i.e. when communicating with data subjects about their rights; and
• at specific points while processing is ongoing, for example when data breaches occur or in the case of material changes to the processing.

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Adopted on 13 December 2016 – As last Revised and adopted on 5 April 2017

Executive summary

Article 20 of the GDPR creates a new right to data portability, which is closely related to the right of access but differs from it in many ways. It allows for data subjects to receive the personal data that they have provided to a controller, in a structured, commonly used and machine-readable format, and to transmit those data to another data controller. The purpose of this new right is to empower the data subject and give him/her more control over the personal data concerning him or her.

Since it allows the direct transmission of personal data from one data controller to another, the right to data portability is also an important tool that will support the free flow of personal data in the EU and foster competition between controllers. It will facilitate switching between different service providers, and will therefore foster the development of new services in the context of the digital single market strategy.

This opinion provides guidance on the way to interpret and implement the right to data portability as introduced by the GDPR. It aims at discussing the right to data portability and its scope. It clarifies the conditions under which this new right applies taking into account the legal basis of the data processing (either the data subject’s consent or the necessity to perform a contract) and the fact that this right is limited to personal data provided by the data subject. The opinion also provides concrete examples and criteria to explain the circumstances in which this right applies. In this regard, WP29 considers that the right to data portability covers data provided knowingly and actively by the data subject as well as the personal data generated by his or her activity. This new right cannot be undermined and limited to the personal information directly communicated by the data subject, for example, on an online form.

As a good practice, data controllers should start developing the means that will contribute to answer data portability requests, such as download tools and Application Programming Interfaces. They should guarantee that personal data are transmitted in a structured, commonly used and machine-readable format, and they should be encouraged to ensure the interoperability of the data format provided in the exercise of a data portability request.

The opinion also helps data controllers to clearly understand their respective obligations and recommends best practices and tools that support compliance with the right to data portability. Finally, the opinion recommends that industry stakeholders and trade associations work together on a common set of interoperable standards and formats to deliver the requirements of the right to data portability.

Go to the full Guidelines.