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Privacy Policy and Information Obligations

05/11/2018 by Andreas Schindler

The Communication Act 2003 demanded even before the GDPR that website users have to be informed about the usage of personal data in a privacy policy. The GDPR demands in Article 13 that data subjects have to be informed of the usage of their personal data when gathering it. Article 14 demands that the data subjects have to be informed within 30 days if their data is being transferred to third parties.

A privacy policy on the website for the on the website processed data is required by the Communication Act 2003. Moreover, the privacy policy is an efficient way to fulfil the information obligations of Article 13 and 14.

Information Obligation

When gathering personal data, the data subject has to receive the following information:

  • The name and contact details of the data controller, including the data controller’s representative if applicable
  • The contact details of the DPO (Data Protection Officer) if applicable
  • The purposes of processing
  • The legal basis of processing (Article 6).
  • If you are using the legitimate interests condition to permit processing, you have to state what those legitimate interests are. You should also document why these interests are more substantial than the interests of the data subject who objects to this processing.
  • Recipients or categories of recipients of the data (e.g. suppliers, accountants, …), if applicable
  • If it is intended to transfer data to a third country, the appropriate or suitable safeguards and means of obtaining a copy of them (see US-EU Privacy Shield).
  • The period for which the personal data will be stored or, if not possible, the criteria to determine that period.
  • The data subject’s right to request access to and rectification or erasure of personal data and the right of portability.
  • If you are using the consent condition to permit processing, you have to inform the data subject about their right to withdraw that consent at any time.
  • The right to lodge a complaint with the supervisory authority.
  • If the provision of data is a statutory or contractual requirement, or necessary to enter a contract, the consequences of not doing so.
  • If applicable, the existence of automated decision making including profiling and, in those cases, meaningful information about the logic involved in such processing. Article 22 subparagraphs 1 and 4
  • If the data is not directly collected from the data subject, additionally, you have to state where you got the data from and if applicable, if they originate from a publicly accessible source. More details and restrictions in Article 14 GDPR

If the data subject already has this information, you don’t have to transfer this information again.

Privacy Policy

The privacy policy is the ideal place to fulfil this information obligations with little effort. If the privacy policy not only affects the for the website relevant information but also all information of the customers, interested parties, etc., you can fulfil your information obligations by linking your privacy policy.

We recommend that you point out your privacy policy whenever you are collecting data from persons (webforms, orders in paper, etc.).

The information obligation about data that has been received from third parties is often hard to implement correctly. Data from third parties are e.g. orders coming from intermediaries or data that has been researched from the internet. As mentioned before, you have to inform data subjects, according to article 14 GDPR, within 30 days about the processing.

A pragmatic approach for the implementation is also pointing out the privacy policy in all documents (offers, invoices, letters, etc.) and in all emails. As a result, the necessary information is being automatically transferred at the next client contact.

The European Data Protection Authority (former Article 29 Working Party) has explicitly recommended to not overwhelm the data subjects with information in the Working Paper 260. It is also recommended to only give the core information (e.g. crucial or unexpected details for the data subjects) directly and to provide everything else by linking your privacy policy.

Article 14 demands that data subjects have to be informed within 30 days about their data being processed if it is passed on to third parties.

Consent

It is not necessary to agree to a privacy policy. It is sufficient to provide the link to the privacy policy to the data subjects.

From our point of view a consent would be counterproductive. Every consent can be objected. But what happens if the consent to the privacy policy is being objected? We would still process the data as specified in the privacy policy.

Implementation

We recommend generating your Record of Processing Activities (ROPA) first. Keep in mind to also document the processing relevant for the website (Google Analytics, forms, Like buttons, etc.). You can thereof extrapolate your privacy policy.

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