Unlocking the EU General Data Protection Regulation: A practical handbook on the EU's new data protection law: Chapter 5: Key definitions

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Overview

Why does this topic matter to organisations?

The defined terms set out in this Chapter are of critical importance to understanding how EU data protection law applies to an organisation. For example, the question of whether the information that is handled by an organisation constitutes "personal data" will determine whether, and to what extent, EU data protection law affects that organisation's business activities.

What types of organisations are most affected?

All organisations that are subject to EU data protection law (see Chapter 4) are affected by these definitions.

What should organisations do to prepare?

Organisations should ensure that the relevant decision makers understand the revised definitions introduced by the GDPR, and that those differences are accounted for in any policies, procedures or other documents that use such definitions. For example:

  • data protection language in their standard agreements; and
  • all internal policies and procedures that address data protection issues—particularly HR policies, IT policies, and (if applicable) any policies affecting individual customers,

should be reviewed, to confirm that they remain appropriate in the context of the GDPR.

Icons are used below to clarify the impact of each GDPR change. These GDPR impact icons are explained here.     

Detailed analysis

Issue

The Directive

The GDPR

Impact

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Personal data

This definition is critical because EU data protection law only applies to personal data. Information that does not fall within the definition of "personal data" is not subject to EU data protection law.

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Art.2(a)

"Personal data" means any information relating to an identified or identifiable natural person ("data subject"); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.

materially changes

Art.4(1)

"Personal data" means any information relating to an identified or identifiable natural person ("data subject"); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person.

neutral

The definition of personal data is, for the most part, unchanged under the GDPR.

 

negative

For some organisations, the explicit inclusion of location data, online identifiers and genetic data within the definition of "personal data" may result in additional compliance obligations (e.g., for online advertising businesses, many types of cookies become personal data under the GDPR, because those cookies constitute "online identifiers").

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Sensitive Personal Data

Sensitive Personal Data are special categories of personal data that are subject to additional protections. In general, organisations require stronger grounds to process Sensitive Personal Data than they require to process "regular" personal data.

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Art.8(1)

"Sensitive Personal Data" are personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and data concerning health or sex life.

materially changes

Rec.10, 34, 35, 51; Art.9(1)

"Sensitive Personal Data" are personal data, revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership; data concerning health or sex life and sexual orientation; genetic data or biometric data. Data relating to criminal offences and convictions are addressed separately (as criminal law lies outside the EU's legislative competence).

neutral

For most organisations, the concept of "Sensitive Personal Data" remains unchanged.

 

negative

For organisations that process genetic or biometric data, those data are now expressly categorised as "Sensitive Personal Data", and will therefore be subject to additional protections and restrictions.

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Data relating to criminal offences

Criminal law lies outside the EU's legislative competence. Data relating to criminal offences are therefore treated separately from Sensitive Personal Data.

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Art.8(5)

Data relating to criminal offences and convictions may only be processed by national authorities. National law may provide derogations, subject to suitable safeguards. A complete register of criminal offences may only be kept by the responsible national authority.

does not materially change

Rec. 19, 50, 73, 80, 91, 97; Art.10

Data relating to criminal offences and convictions may only be processed by national authorities. National law may provide derogations, subject to suitable safeguards. A comprehensive register of criminal offences may only be kept by the responsible national authority.

neutral

The GDPR makes no material changes to the approach set out in the Directive.

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Anonymous data

Some sets of data can be amended in such a way that no individuals can be identified from those data (whether directly or indirectly) by any means or by any person. Ensuring that there is no way in which individuals can be identified is a technically complex task.

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Rec.26

The Directive does not apply to data that are rendered anonymous in such a way that individuals cannot be identified from the data.

does not materially change

Rec.26

The GDPR does not apply to data that are rendered anonymous in such a way that individuals cannot be identified from the data.

neutral

Data that are fully anonymised (i.e., data from which no individuals can be identified) are outside the scope of both the Directive and the GDPR.

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Pseudonymous data

Some sets of data can be amended in such a way that no individuals can be identified from those data (whether directly or indirectly) without a "key" that allows the data to be re-identified. A good example of pseudonymous data is coded data sets used in clinical trials.

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N/A

The Directive does not explicitly address the issue of pseudonymous data. Pseudonymous data are treated as personal data.

materially changes

Rec.26, 28-29, 75, 78, 156; Art.4(5), 6(4)(e), 25(1), 32(1)(a), 40(2)(d), 89(1)

Pseudonymous data are still treated as personal data because they enable the identification of individuals (albeit via a key). However, provided that the "key" that enables re‑identification of individuals is kept separate and secure, the risks associated with pseudonymous data are likely to be lower, and so the levels of protection required for those data are likely to be lower.

positive

Pseudonymisation of data provides advantages. It can allow organisations to satisfy their obligations of "privacy by design" and "privacy by default" (see Chapter 10) and it may be used to justify processing that would otherwise be deemed "incompatible" with the purposes for which the data were originally collected (see Chapter 6). In addition, the GDPR explicitly encourages organisations to consider pseudonymisation as a security measure.

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Processing

The term "processing" is very broad. It essentially means anything that is done to, or with, personal data (including simply collecting, storing or deleting those data). This definition is significant because it clarifies the fact that EU data protection law is likely to apply wherever an organisation does anything that involves or affects personal data.

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Art.2(b)

"Processing" means any operation or set of operations performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

does not materially change

Art.4(2)

"Processing" means any operation or set of operations performed upon personal data or sets of personal data, whether or not by automated means, such as 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.

neutral

The GDPR introduces minor amendments to the wording of the definition of "processing". These amendments are unlikely to make any practical difference to most organisations.

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Controller

Under the Directive, the term "controller" has particular importance because compliance obligations under EU data protection law are primarily imposed on controllers. Under the GDPR, controllers still bear the primary responsibility for compliance, although (as set out in Chapter 11) processors also have direct compliance obligations under the GDPR.

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Art.2(d)

"Controller" means the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by EU or Member State laws, the controller may be designated by those laws.

does not materially change

Art.4(7)

"Controller" means the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by EU or Member State laws, the controller (or the criteria for nominating the controller) may be designated by those laws.

neutral

The concept of a "controller" is essentially unchanged under the GDPR. Any entity that is a controller under the Directive likely continues to be a controller under the GDPR.

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Processor

The term "processor" refers to any entity that processes personal data under the controller's instructions (e.g., many service providers are processors).

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Art.2(e)

"Processor" means a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller.

does not materially change

Art.4(8)

"Processor" means a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller.

neutral

The concept of a "processor" does not change under the GDPR. Any entity that is a processor under the Directive likely continues to be a processor under the GDPR.

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Consent

The concept of "consent" is foundational to EU data protection law. In general, the validly obtained consent of the data subject will permit almost any type of processing activity, including Cross-Border Data Transfers.

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Art.2(h)

"The data subject's consent" means any freely given, specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed.

materially changes

Rec.25; Art.4(11)

"The consent of the data subject" means any freely given, specific, informed and unambiguous indication of his or her wishes by which the data subject, either by a statement or by a clear affirmative action, signifies agreement to personal data relating to them being processed.

neutral

The GDPR makes it considerably harder for organisations to obtain valid consent from data subjects (see Chapter 8). For organisations that rely on consent for their business activities, the processes by which they obtain consent will need to be reviewed and revised to meet the requirements of the GDPR.

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Data breaches

The term "data breach" is commonly used to refer to the scenario in which a third party gains unauthorised access to data, including personal data.

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Art.17(1)

Although the term "data breach" is not specifically defined in the Directive, Art.17(1) obliges controllers to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and against all other unlawful forms of processing.

does not materially change

Art.4(12)

"Data breach" means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed.

neutral

Although the GDPR introduces a formal definition that is not provided in the Directive, the concept of a data breach does not materially change. The consequences of data breaches (and the obligation to report such breaches) are addressed in Chapter 10.

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Data concerning health

The idea that health data should be treated as Sensitive Personal Data is well-established, and is also reflected in the laws of a number of jurisdictions outside the EU.

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N/A

The Directive does not explicitly define "data concerning health". The term is used in Art.8(1), but is not further defined. The national laws of Member States have provided their own definitions, typically incorporating data relating to both physical and mental health.

materially changes

Rec. 35, 53-54; Art.4(15)

"Data concerning health" means personal data relating to the physical or mental health of an individual, including the provision of health care services, which reveal information about his or her health status. It expressly covers both physical and mental health.

neutral

The GDPR substantially increases the types of data that are included in the definition of "data concerning health". However, in practical terms, organisations already treat many of these types of data as "data concerning health", so these amendments to the formal definition are unlikely to result in wholesale changes in practice.

Further analysis

Commentary: Definitions in general

As set out in this Chapter, many of the core definitions that organisations may already be familiar with under the Directive are unchanged under the GDPR. For example, anything that is treated as personal data under the Directive is still treated as personal data under the GDPR. Similarly, the essential characteristics of a controller and a processor are the same in both the Directive and the GDPR. Consequently, organisations can take comfort from the fact that, for the most part, existing understandings of these terms are likely to require only comparatively minor updates in light of the GDPR.

Commentary: Data concerning actual or alleged criminal offences, or criminal convictions

It is important to note that the definition of "Sensitive Personal Data" in both the Directive and the GDPR leaves out the category of actual or alleged criminal offences and criminal convictions—data in those categories are addressed separately. However, Member States may create additional categories of Sensitive Personal Data, and many Member States have opted to treat these data as Sensitive Personal Data. For example:

  • In the UK, the case of ICO v Colenso-Dunne [2015] UKUT 471 (AAC) confirmed that, under English law, information relating to actual or alleged criminal offences, or criminal convictions, is not 'less sensitive' merely because the category is not listed as Sensitive Personal Data in the Directive.
  • In Denmark, information relating to actual or alleged criminal offences, or criminal convictions, is treated as "semi-sensitive" data. These data are subject to some, but not all, of the protections afforded to Sensitive Personal Data.

Example: Controller or processor?

Q. Organisation A provides payroll processing services to corporate customers. Organisation A provides those services to its customers in accordance with each customer's instructions. Organisation A also uses those data to perform benchmarking analysis, so that it can sell further services allowing customers to compare their payroll data to industry averages. Does Organisation A fall within the definition of a "controller" or a "processor"?

A. Depending on the facts, the same entity can be a controller in respect of some processing activities and a processor in respect of other processing activities. In this example, Organisation A is a processor in respect of the payroll processing services it provides directly to its customers, and a controller in respect of the benchmarking services, as it is processing personal data to create benchmarks for its own purposes.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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