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Brussels, 20 January - The European Data Protection Board (EDPB) has adopted a report on the implementation of the right of access by controllers. The report summarises the outcome of a series of coordinated national actions carried out in 2024 under the Coordinated Enforcement Framework (CEF). It lists the issues that were observed for some controllers, along with a series of recommendations to help them implement the right of access. A central element is controllers’ awareness of the EDPB Guidelines 01/2022 on data subjects rights – Right of access and whether these guidelines were followed in practice.

EDPB Deputy Chair Zdravko Vukíc said: “The CEF is a valuable initiative that helps strengthen the cooperation among Data Protection Authorities (DPAs): by tackling selected topics in a coordinated fashion, they achieve greater efficiency and more consistency. How controllers implement the right of access lies at the heart of data protection and it is one of the most frequently exercised data subject rights.”

Throughout 2024, 30 DPAs across Europe launched coordinated investigations into the compliance of controllers with the right of access, by opening formal investigations, assessing whether a formal investigation was warranted and/or carrying out fact-finding exercises.  A total of 1,185 controllers, consisting of small and medium-sized enterprises (SMEs) and big companies active in different industries and fields, as well as various types of public entities, responded to the action.

Areas of improvement and main challenges

The results suggest that more awareness raising about Guidelines 01/2022 is necessary, both at national and EU level, as the guidelines help controllers implement the right of access, explain how exercising this right can be made easier, and list the exceptions and limitations of the right to access.

As a result of the 2024 CEF action, seven challenges were identified. One of them is the lack of documented internal procedures to handle access requests. In addition, inconsistent and excessive interpretations of the limits to the right of access were also observed, such as overly relying on certain exceptions to automatically refuse access requests. Another example is the barriers that individuals could encounter when exercising their right of access, such as  formal requirements or being requested to provide excessive identification documents. For each challenge identified, the report provides a list of non-binding recommendations to be taken into account by controllers and DPAs.

Positive findings

Despite the existing challenges, two thirds of participating DPAs evaluated the level of compliance of responding controllers with respect to the right of access from ‘average’ to ‘high’. One important factor identified as having an impact on the level of compliance was the volume of access requests received by controllers, as well as the size of the organisation. More specifically, large-sized controllers or controllers receiving more requests were more likely to reach a higher level of compliance than small organisations with less resources.

Positive findings were observed across Europe. These include the implementation of best practices by controllers, such as user-friendly online forms enabling individuals to submit an access request easily as well as self-service systems to allow individuals to autonomously download their personal data in a few clicks and at any time.

Background and next steps

The CEF is a key action of the EDPB under its 2024-2027 Strategy, aimed at streamlining enforcement and cooperation among DPAs. 
In the past three years, two previous CEF actions were carried out.

The results of these national actions are aggregated and analysed together to generate deeper insight into the topic and allowing for targeted follow-up on both national and EU level.

In 2023, the EDPB published the report on its first coordinated action on the use of cloud-based services by the public sector.
In 2024, the EDPB also published the report on the outcome of the second coordinated action on the designation and position of Data Protection Officers.

The CEF 2025 action will be on the implementation of the right to erasure.
 

For further information:

• AT DPA: Schwerpunktprüfung 2024: Datenschutzbehörde zieht positive Bilanz für den Telekomsektor
• CS DPA: EDPB přijal závěrečnou zprávu ke společné kontrolní akci CEF 2024
• DA DPA:DPB vedtager rapport om dataansvarliges overholdelse af indsigtsretten
• EDPS: Coordinated Enforcement Action: EDPS findings highlight challenges on right of access to personal data
• ES DPA: Resultados de la acción europea que ha analizado la atención del ejercicio del derecho de acceso por parte de los responsables 
• FI DPA: Raportti omien henkilötietojen tarkastusoikeutta koskevasta selvityksestä on julkaistu – täydensimme ohjeistusta verkkosivuillamme 

Brussels, 17 January - During its January 2025 plenary meeting, the European Data Protection Board (EDPB) has adopted guidelines on pseudonymisation, as well as a statement on the interplay of competition law and data protection.

EDPB clarifies the use of pseudonymisation for GDPR compliance

The GDPR introduces the term ‘pseudonymisation’* and refers to it as a safeguard that may be appropriate and effective to meet data protection obligations. In its guidelines, the EDPB clarifies the definition and applicability of pseudonymisation and pseudonymised data, and the advantages of pseudonymisation.

The guidelines provide two important legal clarifications:

1. Pseudonymised data, which could be attributed to an individual by the use of additional information, remains information related to an identifiable natural person and is therefore still personal data. Indeed, if the data can be linked back to an individual by the data controller or someone else, it remains personal data.
    
2. Pseudonymisation can reduce risks and make it easier to use legitimate interests as a legal basis (Art. 6(1)(f)  GDPR), as long as all other GDPR requirements are met. Likewise, pseudonymisation can aid in securing compatibility with the original purpose (Art. 6(4) GDPR).

The guidelines also explain how pseudonymisation can help organisations meet their obligations relating to the implementation of data protection principles (Art. 5 GDPR), data protection by design and default (Art. 25 GDPR) and security (Art. 32 GDPR).

Finally, the guidelines analyse technical measures and safeguards, when using pseudonymisation, to ensure confidentiality and prevent unauthorised identification of individuals.

The guidelines will be subject to public consultation until 28 February 2025, providing stakeholders with the opportunity to comment and allowing for the incorporation of future developments in case law.

Interplay between data protection law and competition law: the EDPB’s take on how to improve cooperation between regulators

During the plenary meeting, the EDPB also adopted a position paper on the interplay between data protection law and competition law.

The CJEU Meta vs. Bundeskartellamt ruling of 4 July 2023 clearly indicated that data protection and competition authorities are required to work together, in some cases, to achieve effective and coordinated enforcement of data protection and competition law. While these are separate areas of law pursuing different goals in different frameworks, they may in some cases apply to the same entities. It is therefore important to assess situations where the laws may intersect.

In this position paper, the EDPB explains how data protection and competition law interact. It suggests steps for incorporating market and competition factors into data protection practices and for data protection rules to be considered in competition assessments. It also provides recommendations for improving cooperation between regulators. For example: authorities should consider creating a single point of contact to manage coordination with other regulators.

EDPB Deputy Chair Zdravko Vukíc said: “As business models evolve, the need to protect personal data is becoming increasingly central. The EDPB promotes coherence among separate but interacting areas of regulation, to ensure the best possible protection of individuals. To this end, we will continue to work together with Competition Authorities to strengthen the ability of Data Protection Authorities (DPAs) to take into account the economic context, and the ability of Competition Authorities to incorporate data protection considerations in their assessments and decisions.”

Note to editors:

*’ Pseudonymisation’ is defined in Art. 4 (5) GDPR as “the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person.”

The EDPS issues its concept note towards a Digital Clearinghouse 2.0 for a consistent, cooperative and coherent approach to enforcing EU laws regulating digital markets.

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Hearing of candidates Bruno Gencarelli, François Pellegrini, Anna Pouliou and Wojciech Wiewiórowski before the Committee on Civil Liberties, Justice and Home Affairs for the appointment of the European Data Protection Supervisor.

The European Data Protection Supervisor is appointed by a joint decision of the European Parliament and the European Council for a five year term. 

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In October 2022, the EDPS carried out an audit on Frontex’s activities when assisting Member States at the EU external borders in joint operations.  In particular, the EDPS focused on debriefing interviews by Frontex of individuals intercepted while crossing external borders and the Agency’s further use of the information collected in this context. 

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We thank you all for your support over the previous year. It has been a true pleasure sharing this journey with you. In 2024, we enjoyed significant achievements. Europrivacy suitability for European accreditation was approved by the European Co-operation for Accreditation (EA), several certification bodies completed their successful Europrivacy accreditation, and the first Europrivacy certifications […]

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To mark the Data Protection Day, the EDPS, Council of Europe, and CPDP Conferences are joining forces to host a one-day event: “CPDP – Data Protection Day: A New Mandate for Data Protection.”
•    When: 28 January 2025
•    Where: European Commission’s Charlemagne, Brussels
•    Format: In-person and online

This year’s conference comes at a crucial time as new EU political mandates begin shaping the policy landscape. Discussion will focus on the evolving mandate of data protection, particularly its essential role as safeguard of our democratic society against excessive intrusions in the citizens’ privacy by public or private actors.

• Event page
• Programme
• Register here

Brussels, 18 December - The European Data Protection Board (EDPB) has adopted an opinion* on the use of personal data for the development and deployment of AI models. This opinion looks at 1) when and how AI models can be considered anonymous, 2) whether and how legitimate interest can be used as a legal basis for developing or using AI models, and 3) what happens if an AI model is developed using personal data that was processed unlawfully. It also considers the use of first and third party data.

The opinion was requested by the Irish Data Protection Authority (DPA) with a view to seeking Europe-wide regulatory harmonisation. To gather input for this opinion, which deals with fast-moving technologies that have an important impact on society, the EDPB organised a stakeholders’ event and had an exchange with the EU AI Office.

EDPB Chair Talus said: “AI technologies may bring many opportunities and benefits to different industries and areas of life. We need to ensure these innovations are done ethically, safely, and in a way that benefits everyone. The EDPB wants to support responsible AI innovation by ensuring personal data are protected and in full respect of the General Data Protection Regulation (GDPR).”

Regarding anonymity, the opinion says that whether an AI model is anonymous should be assessed  on a case by case basis by the DPAs. For a model to be anonymous, it should be very unlikely (1) to directly or indirectly identify individuals whose data was used to create the model, and (2) to extract such personal data from the model through queries. The opinion provides a non-prescriptive and non-exhaustive list of methods to demonstrate anonymity.

With respect to legitimate interest, the opinion provides general considerations that DPAs should take into account when they assess if legitimate interest is an appropriate legal basis for processing personal data for the development and the deployment of AI models.

A three-step test helps assess the use of legitimate interest as a legal basis. The EDPB gives the examples of a conversational agent to assist users, and the use of AI to improve cybersecurity. These services can be beneficial for individuals and can rely on legitimate interest as a legal basis, but only if the processing is shown to be strictly necessary and the balancing of rights is respected.

The opinion also includes a number of criteria to help DPAs assess if individuals may reasonably expect certain uses of their personal data. These criteria include: whether or not the personal data was publicly available, the nature of the relationship between the individual and the controller, the nature of the service, the context in which the personal data was collected, the source from which the data was collected, the potential further uses of the model, and whether individuals are actually aware that their personal data is online.

If the balancing test shows that the processing should not take place because of the negative impact on individuals, mitigating measures may limit this negative impact. The opinion includes a non-exhaustive list of examples of such mitigating measures, which can be technical in nature, or make it easier for individuals to exercise their rights or increase transparency.

Finally, when an AI model was developed with unlawfully processed personal data, this could have an impact on the lawfulness of its deployment, unless the model has been duly anonymised.

Considering the scope of the request from the Irish DPA, the vast diversity of AI models and their rapid evolution, the opinion aims to give guidance on various elements that can be used for conducting a case by case analysis.

In addition, the EDPB is currently developing guidelines covering more specific questions, such as web scraping.

Note to editors:
*An Article 64(2) opinion addresses a matter of general application or produces effects in more than one Member State.

The event, hosted at the EDPS premises in Brussels, aimed to raise awareness among staff from European Union Institutions, Bodies, and Agencies (EUIs) on managing personal data breaches.

In 2024, the European Data Protection Supervisor (EDPS) launched a dedicated campaign to raise awareness of personal data breaches, one of 20 initiatives organised to mark the institution’s 20th Anniversary. The campaign ran from March to October 2024, 

Carissa Véliz is an Associate Professor at the University of Oxford. Prof Véliz graduated in philosophy from the University of Salamanca, completed a master's degree in philosophy at the CUNY graduate centre in New York, and received a doctorate in philosophy from the University of Oxford, where she currently works at the Faculty of Philosophy and the Institute on Ethics of Artificial Intelligence.

In this issue, learn about our global efforts to elevate data protection standards, our work on artificial intelligence and more!

Read last newsletter of 2024. 

Join us as we speak with leading experts who witnessed the evolution of data protection globally first-hand.  

Today, we welcome Jan Philipp Albrecht. Jan is a co-President of the Heinrich Böll Foundation who shares his expertise on data protection, privacy, and digital rights. 

The European Data Protection Supervisor (EDPS) is examining the European Commission’s compliance with its decision of 8 March 2024 regarding the use of Microsoft 365. Following its investigation, the EDPS had found that the European Commission infringed several provisions of Regulation (EU) 2018/1725, the EU’s data protection law for EU institutions, bodies, offices and agencies (EUIs), including those on transfers of personal data outside the EU/European Economic Area (EEA).

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Brussels, 04 December - During its December 2024 plenary, the European Data Protection Board (EDPB) adopted a statement on the second report of the European Commission on the application of the General Data Protection Regulation (GDPR).*

In its statement, the EDPB welcomes the reports from the European Commission and the Fundamental Rights Agency**. Importantly, the EDPB underlines the importance of legal certainty and coherence of digital legislation with the GDPR, and recalls some of its ongoing initiatives to clarify the enforcement interplay of the GDPR with the AI Act, the EU Data Strategy and the Digital Services Package.

In addition, the EDPB announces it will step up the production of content for non-experts, small and medium-sized enterprises (SMEs) and other groups.

Finally, the Board highlights the genuine need for additional financial and human resources to help  DPAs and the EDPB deal with increasingly complex challenges and additional competences.

Note to editors

* In July 2024, the European Commission published its second report on the application of the GDPR, adopted under Art. 97 GDPR.

** In June 2024, the Fundamental Rights Agency (FRA) published a report on the experiences of DPAs when implementing the GDPR. The findings  of this report complement the European Commission's evaluation of the GDPR.
 

Brussels, 03 December - During its latest plenary, the European Data Protection Board (EDPB) published guidelines on Art.48 GDPR about data transfers to third country authorities and  approved a new European Data Protection Seal.

EDPB helps organisations assess data transfer requests by third country authorities

In a highly interconnected world, organisations receive requests from public authorities in other countries to share personal data. The sharing of data can, for instance, be of help to collect evidence in the case of crime, to check financial transactions or approve new medications.

When a European organisation receives a request for a transfer of data from a ‘third country’ (i.e. non-European countries) authority, it must comply with the General Data Protection Regulation (GDPR). In its guidelines, the EDPB zooms in on Art. 48 GDPR and clarifies how organisations can best assess under which conditions they can lawfully respond to such requests. In this way, the guidelines help organisations to make a decision on whether they can lawfully transfer personal data to third country authorities when asked to do so.

Judgements or decisions from third countries authorities cannot automatically be recognised or enforced in Europe. If an organisation replies to a request for personal data from a third country authority, this data flow constitutes a transfer and the GDPR applies. An international agreement may provide for both a legal basis and a ground for transfer. In case there is no international agreement, or if the agreement does not provide for an appropriate legal basis or safeguards, other legal bases or other grounds for transfer could be considered, in exceptional circumstances and on a case by case basis.*

The guidelines are subject to public consultation until 27 January 2025.

Approval of EU Data Protection Seal

During the plenary meeting, the Board also adopted an opinion approving the Brand Compliance certification criteria concerning processing activities by controllers or processors. In September 2023, the Board already adopted an opinion on the approval of the Brand Compliance national certification criteria, making them officially recognised certification criteria in the Netherlands for data processing by organisations. The approval of the new opinion means that these criteria will now be applicable across Europe and as a European Data Protection Seal.

GDPR certification helps organisations demonstrate their compliance with data protection law. This transparency helps people trust the product, service, process or system for which organisations process their personal data.

Note to editors:

* The transfer must comply with Art.6 GDPR and the provisions of Chapter V.

An international agreement may provide for both a legal basis under Art. 6(1) (c) or 6(1) (e) GDPR and a ground for transfer under Art. 46(2) (a) GDPR.

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