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5419/16

AV/NT/sr

DGD 2

(66)

To strengthen the right to be forgotten in the online environment, the right to erasure

should also be extended in such a way that a controller who has made the personal data

public should be obliged to inform the controllers which are processing such personal data

to erase any links to, or copies or replications of those personal data. In doing so, that

controller should take reasonable steps, taking into account available technology and the

means available to the controller, including technical measures, to inform the controllers

which are processing the personal data of the data subject's request.

(67)

Methods by which to restrict the processing of personal data could include, inter alia,

temporarily moving the selected data to another processing system, making the selected

personal data unavailable to users, or temporarily removing published data from a website.

In automated filing systems, the restriction of processing should in principle be ensured by

technical means in such a manner that the personal data are not subject to further

processing operations and cannot be changed. The fact that the processing of personal data

is restricted should be clearly indicated in the system.

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5419/16

AV/NT/sr

DGD 2

(68)

To further strengthen the control over his or her own data, where the processing of

personal data is carried out by automated means, the data subject should also be allowed to

receive personal data concerning him or her which he or she has provided to a controller in

a structured, commonly used, machine-readable and interoperable format, and to transmit it

to another controller. Data controllers should be encouraged to develop interoperable

formats that enable data portability. That right should apply where the data subject

provided the personal data on the basis of his or her consent or the processing is necessary

for the performance of a contract. It should not apply where processing is based on a legal

ground other than consent or contract. By its very nature, that right should not be exercised

against controllers processing personal data in the exercise of their public duties. It should

therefore not apply where the processing of the personal data is necessary for compliance

with a legal obligation to which the controller is subject or for the performance of a task

carried out in the public interest or in the exercise of an official authority vested in the

controller. The data subject's right to transmit or receive personal data concerning him or

her should not create an obligation for the controllers to adopt or maintain processing

systems which are technically compatible. Where, in a certain set of personal data, more

than one data subject is concerned, the right to receive the personal data should be without

prejudice to the rights and freedoms of other data subjects in accordance with this

Regulation. Furthermore, that right should not prejudice the right of the data subject to

obtain the erasure of personal data and the limitations of that right as set out in this

Regulation and should, in particular, not imply the erasure of personal data concerning the

data subject which have been provided by him or her for the performance of a contract to

the extent that and for as long as the personal data are necessary for the performance of

that contract. Where technically feasible, the data subject should have the right to have the

personal data transmitted directly from one controller to another.

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5419/16

AV/NT/sr

DGD 2

(69)

Where personal data might lawfully be processed because processing is necessary for the

performance of a task carried out in the public interest or in the exercise of official

authority vested in the controller, or on grounds of the legitimate interests of a controller or

a third party, a data subject should, nevertheless, be entitled to object to the processing of

any personal data relating to his or her particular situation. It should be for the controller to

demonstrate that its compelling legitimate interest overrides the interests or the

fundamental rights and freedoms of the data subject.

(70)

Where personal data are processed for the purposes of direct marketing, the data subject

should have the right to object to such processing, including profiling to the extent that it is

related to such direct marketing, whether with regard to initial or further processing, at any

time and free of charge. That right should be explicitly brought to the attention of the data

subject and presented clearly and separately from any other information.

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5419/16

AV/NT/sr

DGD 2

(71)

The data subject should have the right not to be subject to a decision, which may include a

measure, evaluating personal aspects relating to him or her which is based solely on

automated processing and which produces legal effects concerning him or her or similarly

significantly affects him or her, such as automatic refusal of an online credit application or

e-recruiting practices without any human intervention. Such processing includes 'profiling'

that consists of any form of automated processing of personal data evaluating the personal

aspects relating to a natural person, in particular to analyse or predict aspects concerning

the data subject's performance at work, economic situation, health, personal preferences or

interests, reliability or behaviour, location or movements, where it produces legal effects

concerning him or her or similarly significantly affects him or her. However,

decision-making based on such processing, including profiling, should be allowed where

expressly authorised by Union or Member State law to which the controller is subject,

including for fraud and tax-evasion monitoring and prevention purposes conducted in

accordance with the regulations, standards and recommendations of Union institutions or

national oversight bodies and to ensure the security and reliability of a service provided by

the controller, or necessary for the entering or performance of a contract between the data

subject and a controller, or when the data subject has given his or her explicit consent. In

any case, such processing should be subject to suitable safeguards, which should include

specific information to the data subject and the right to obtain human intervention, to

express his or her point of view, to obtain an explanation of the decision reached after such

assessment and to challenge the decision. Such measure should not concern a child.

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5419/16

AV/NT/sr

DGD 2

In order to ensure fair and transparent processing in respect of the data subject, taking into

account the specific circumstances and context in which the personal data are processed,

the controller should use appropriate mathematical or statistical procedures for the

profiling, implement technical and organisational measures appropriate to ensure, in

particular, that factors which result in inaccuracies in personal data are corrected and the

risk of errors is minimised, secure personal data in a manner that takes account of the

potential risks involved for the interests and rights of the data subject and that prevents,

inter alia, discriminatory effects on natural persons on the basis of racial or ethnic origin,

political opinion, religion or beliefs, trade union membership, genetic or health status or

sexual orientation, or that result in measures having such an effect. Automated

decision-making and profiling based on special categories of personal data should be

allowed only under specific conditions.

(72)

Profiling is subject to the rules of this Regulation governing the processing of personal

data, such as the legal grounds for processing or data protection principles. The European

Data Protection Board established by this Regulation (the 'Board') should be able to issue

guidance in that context.

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5419/16

AV/NT/sr

DGD 2

(73)

Restrictions concerning specific principles and concerning the rights of information, access

to and rectification or erasure of personal data and on the right to data portability, the right

to object, decisions based on profiling, as well as on the communication of a personal data

breach to a data subject and on certain related obligations of the controllers may be

imposed by Union or Member State law, as far as necessary and proportionate in a

democratic society to safeguard public security, including the protection of human life

especially in response to natural or man made disasters, the prevention, investigation and

prosecution of criminal offences or the execution of criminal penalties, including the

safeguarding against and the prevention of threats to public security, or of breaches of

ethics for regulated professions, other important objectives of general public interest of the

Union or of a Member State, in particular an important economic or financial interest of

the Union or of a Member State, the keeping of public registers kept for reasons of general

public interest, further processing of archived personal data to provide specific information

related to the political behaviour under former totalitarian state regimes or the protection of

the data subject or the rights and freedoms of others, including social protection, public

health and humanitarian purposes. Those restrictions should be in accordance with the

requirements set out in the Charter and in the European Convention for the Protection of

Human Rights and Fundamental Freedoms.

5419/16

AV/NT/sr

DGD 2

(74)

The responsibility and liability of the controller for any processing of personal data carried

out by the controller or on the controller's behalf should be established. In particular, the

controller should be obliged to implement appropriate and effective measures and be able

to demonstrate the compliance of processing activities with this Regulation, including the

effectiveness of the measures. Those measures should take into account the nature, scope,

context and purposes of the processing and the risk to the rights and freedoms of natural

persons.

(75)

The risk to the rights and freedoms of natural persons , of varying likelihood and severity,

may result from personal data processing which could lead to physical, material or

non-material damage, in particular: where the processing may give rise to discrimination,

identity theft or fraud, financial loss, damage to the reputation, loss of confidentiality of

personal data protected by professional secrecy, unauthorised reversal of

pseudonymisation, or any other significant economic or social disadvantage; where data

subjects might be deprived of their rights and freedoms or prevented from exercising

control over their personal data; where personal data are processed which reveal racial or

ethnic origin, political opinions, religion or philosophical beliefs, trade-union membership,

and the processing of genetic data, data concerning health or data concerning sex life or

criminal convictions and offences or related security measures; where personal aspects are

evaluated, in particular analysing or predicting aspects concerning performance at work,

economic situation, health, personal preferences or interests, reliability or behaviour,

location or movements, in order to create or use personal profiles; where personal data of

vulnerable natural persons, in particular of children, are processed; or where processing

involves a large amount of personal data and affects a large number of data subjects.

5419/16

AV/NT/sr

DGD 2

(76)

The likelihood and severity of the risk to the rights and freedoms of the data subject should

be determined by reference to the nature, scope, context and purposes of the processing.

Risk should be evaluated on the basis of an objective assessment, by which it is established

whether data processing operations involve a risk or a high risk.

(77)

Guidance on the implementation of appropriate measures and on the demonstration of

compliance by the controller or the processor, especially as regards the identification of the

risk related to the processing, their assessment in terms of origin, nature, likelihood and

severity, and the identification of best practices to mitigate the risk, could be provided in

particular by means of approved codes of conduct, approved certifications, guidelines

provided by the Board or indications provided by a data protection officer. The Board may

also issue guidelines on processing operations that are considered to be unlikely to result in

a high risk to the rights and freedoms of natural persons and indicate what measures may

be sufficient in such cases to address such risk.

5419/16

AV/NT/sr

DGD 2

(78)

The protection of the rights and freedoms of natural persons with regard to the processing

of personal data require that appropriate technical and organisational measures be taken to

ensure that the requirements of this Regulation are met. In order to be able to demonstrate

compliance with this Regulation, the controller should adopt internal policies and

implement measures which meet in particular the principles of data protection by design

and data protection by default. Such measures could consist, inter alia, of minimising the

processing of personal data, pseudonymising personal data as soon as possible,

transparency with regard to the functions and processing of personal data, enabling the data

subject to monitor the data processing, enabling the controller to create and improve

security features. When developing, designing, selecting and using applications, services

and products that are based on the processing of personal data or process personal data to

fulfil their task, producers of the products, services and applications should be encouraged

to take into account the right to data protection when developing and designing such

products, services and applications and, with due regard to the state of the art, to make sure

that controllers and processors are able to fulfil their data protection obligations.The

principles of data protection by design and by default should also be taken into

consideration in the context of public tenders.

(79)

The protection of the rights and freedoms of data subjects as well as the responsibility and

liability of controllers and processors, also in relation to the monitoring by and measures of

supervisory authorities, requires a clear allocation of the responsibilities under this

Regulation, including where a controller determines the purposes and means of the

processing jointly with other controllers or where a processing operation is carried out on

behalf of a controller.

5419/16

AV/NT/sr

DGD 2

(80)

Where a controller or a processor not established in the Union is processing personal data

of data subjects who are in the Union whose processing activities are related to the offering

of goods or services, irrespective of whether a payment of the data subject is required, to

such data subjects in the Union, or to the monitoring of their behaviour as far as their

behaviour takes place within the Union, the controller or the processor should designate a

representative, unless the processing is occasional, does not include processing, on a large

scale, of special categories of personal data or the processing of personal data relating to

criminal convictions and offences, and is unlikely to result in a risk to the rights and

freedoms of natural persons, taking into account the nature, context, scope and purposes of

the processing or if the controller is a public authority or body. The representative should

act on behalf of the controller or the processor and may be addressed by any supervisory

authority. The representative should be explicitly designated by a written mandate of the

controller or the processor to act on its behalf with regard to their obligations under this

Regulation. The designation of such representative does not affect the responsibility and

liability of the controller or the processor under this Regulation. Such representative should

perform its tasks according to the mandate received from the controller or processor,

including to cooperate with the competent supervisory authorities on any action taken in

ensuring compliance with this Regulation. The designated representative should be subject

to enforcement proceedings in the event of non-compliance by the controller or processor.

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