Specificity of Recipients in Privacy Policy for Personal Data

Question

Do I need to specify the exact recipients of personal data in the privacy policy, or is it sufficient to mention the categories of entities involved?

Executive Summary

In response to the query about detailing recipients in a privacy policy under GDPR, here’s a concise analysis of the legal expectations:

  • GDPR Definitions and Transparency: According to the GDPR, personal data refers to any information that can identify an individual. The recipient is any entity to which personal data is disclosed. A privacy policy must be transparent about who receives personal data, be they specific recipients or categories of recipients.
  • Legal Basis for Categories of Recipients: Both Article 13(1)(e) and Article 14(1)(e) acknowledge the use of “recipients or categories of recipients” in a privacy policy, indicating that listing categories is legally sufficient provided it remains transparent and fair to data subjects.
  • Internal Records Comparison: Article 30 allows the use of categories in internal records, insinuating that such categorizing may be satisfactory for privacy policies given that it adequately conveys the necessary information to data subjects.
  • Context-Based Disclosure Variability: The specific context and how the data is processed influence the extent of disclosure. More complex situations, particularly involving cross-border transfers, may necessitate greater detail to align with the GDPR’s stringent protection standards.

This summary should guide the structuring of a privacy policy to ensure it aligns with GDPR requirements on transparency and data subject rights protection.

Legal trace

Review of GDPR Definitions and Disclosure Obligations

’personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural 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, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; Article 4(1)

The GDPR defines “personal data” broadly, encapsulating any information that can potentially identify an individual. This breadth sets a high standard for protection and informs the level of transparency required in disclosures, including the recipients of personal data within a privacy policy.

‘recipient’ means a natural or legal person, public authority, agency, or another body, to which the personal data are disclosed, whether a third party or not. Article 4(9)

The definition of “recipient” is foundational for understanding the required disclosures concerning personal data. It underscores the necessity for privacy policies to address the fate of data once collected, be it with specific entities or categories of entities.

Obligations for Privacy Policy Disclosures

the recipients or categories of recipients of the personal data, if any; Article 13(1)(e) & Article 14(1)(e)

Articles 13(1)(e) and Article 14(1)(e) allow for the disclosure of either “recipients or categories of recipients” in the privacy policy. This suggests a legal basis for mentioning categories of entities, provided such disclosure upholds the GDPR’s goals of transparency and fairness for data subjects.

Comparison with Internal Records Requirements

Each controller and, where applicable, the controller’s representative, shall maintain a record of processing activities under its responsibility. That record shall contain all of the following information: […] (d) the categories of recipients to whom the personal data have been or will be disclosed including recipients in third countries or international organisations; Article 30(1)(d)

Article 30 permits the use of “categories of recipients” in internal records, implying that for certain internal compliance requirements, specificity may not always be required. This administrative perspective gives rise to the possibility that privacy policies too might not need to detail every individual recipient.

Legislative Intent Behind Information Obligations

The principles of fair and transparent processing require that the data subject be informed of the existence of the processing operation and its purpose. The controller should provide the data subject with any further information necessary to ensure fair and transparent processing, taking into account the specific circumstances and context in which the personal data are processed. Recital 60

Recital 60’s emphasis on informed consent and providing “any further information necessary” suggests that while specifics are important, the extent of disclosure may vary based on the individual context and the principle of fair processing.

Conditions for Data Transfer Disclosures

Any transfer of personal data which is undergoing processing or is intended for processing after transfer to a third country or an international organisation shall take place only […] to ensure that the level of protection of natural persons guaranteed by this Regulation is not undermined. Article 44

Article 44 implies an obligation for transparency in transfers of personal data to third countries or international organizations. Although it does not detail privacy policy requirements, it reflects the GDPR’s standard for protection, potentially affecting the level of detail needed when informing data subjects about cross-border data transfers.

In summary, the analysis indicates that specifying the categories of the recipients in privacy policies generally adheres to the GDPR’s guidelines, as long as it adequately informs the data subject and respects the principle of transparency. Care must be taken to ensure that such categorizations are sufficiently clear to maintain trust and satisfy legal obligations. However, if there are special circumstances or complex data transfers, particularly involving third countries, a higher level of detail may be warranted to ensure compliance with the GDPR’s overarching framework of protecting data subjects’ rights.

PDF Repository

We have searched through the PDF repository of ECJ rulings, European Data Protection Board guidelines, and other documents to provide this supplemental answer.

Details

The original analysis covered the GDPR’s definitions and obligations concerning informing data subjects about recipients of personal data, emphasizing the possibility of mentioning categories of recipients under certain provisions. The following supplemental answer draws on additional legal documents and a pivotal court ruling to provide expanded insight into this requirement.

Legal trace

The term “recipient” is defined in Article 4.9 as “a natural or legal person, public authority, agency or another body, to which the personal data are disclosed, whether a third party or not” (emphasis added). As such, a recipient does not have to be a third party. Therefore, other data controllers, joint controllers and processors to whom data is transferred or disclosed are covered by the term “recipient” and information on such recipients should be provided in addition to information on third party recipients. The actual (named) recipients of the personal data, or the categories of recipients, must be provided. In accordance with the principle of fairness, controllers must provide information on the recipients that is most meaningful for data subjects. In practice, this will generally be the named recipients, so that data subjects know exactly who has their personal data. If controllers opt to provide the categories of recipients, the information should be as specific as possible by indicating the type of recipient (i.e. by reference to the activities it carries out), the industry, sector and sub-sector and the location of the recipients. Guidelines on transparency under Regulation 2016/679, page 37

This quote provides nuanced guidance on disclosing recipients of personal data. While it allows for the possibility of mentioning either named recipients or recipient categories, it emphasizes the principle of fairness and the meaningfulness of the information provided to data subjects, typically suggesting that specific names are the expected norm for transparent communication, unless privacy policies opt for a categorization, in which case it should be considerably detailed.

In accordance with the principle of fairness, the information provided on transfers to third countries should be as meaningful as possible to data subjects; this will generally mean that the third countries be named. Guidelines on transparency under Regulation 2016/679, page 38

The necessity for specificity is underlined when personal data is transferred to third countries, as the expectation is to provide information meaningful to data subjects, usually by naming the relevant countries. This enhances the understanding of providing details within a privacy policy when it involves international data transfers.

As opposed to the concepts of controller and processor, the Regulation does not lay down specific obligations or responsibilities for recipients and third parties. These can be said to be relative concepts in the sense that they describe a relation to a controller or processor from a specific perspective, e.g., a controller or processor discloses data to a recipient. A recipient of personal data and a third party may well simultaneously be regarded as a controller or processor from other perspectives. Guidelines 07/2020 on the concepts of controller and processor in the GDPR, page 27

This excerpt clarifies the GDPR’s distinction between the roles of controllers, processors, recipients, and third parties, highlighting that these terms are relative and may overlap depending on the context. This is crucial for understanding the network through which personal data flows and the corresponding responsibilities, as well as for grasping the intricacies of informing data subjects about these parties in the privacy policy.

The right of access must enable the data subject to verify not only that the data concerning him or her are correct, but also that they are processed in a lawful manner (see, by analogy, judgments of 17 July 2014, YS and Others, C-141/12 and C-372/12, EU:C:2014:2081, paragraph 44, and of 20 December 2017, Nowak, C-434/16, EU:C:2017:994, paragraph 57), and in particular that they have been disclosed to authorised recipients (see, by analogy, judgment of 7 May 2009, Rijkeboer, C-553/07, EU:C:2009:293, paragraph 49). Judgment of the Court (First Chamber) of 12 January 2023, page 11

This key legal judgment underscores the right of data subjects to access information verifying both the accuracy and lawful processing of their data, including details about any authorized disclosures. It stresses the importance of transparency in disclosures and the ability of data subjects to validate these processes for themselves, tying back to the AI Agent’s discussion on the GDPR’s aim for fairness and transparency.

Article 15(1)(c) of the GDPR must be interpreted as meaning that the data subject’s right of access to personal data concerning him or her, provided for by that provision, entails, where those data have been or will be disclosed to recipients, an obligation on the part of the controller to provide the data subject with the actual identity of those recipients, (…) unless it is impossible to identify those recipients or the controller demonstrates that the data subject’s requests for access are manifestly unfounded or excessive (…) Judgment of the Court (First Chamber) of 12 January 2023, page 13

The CJEU court ruling specifically interprets Article 15(1)(c) and clarifies that data subjects are entitled to know the actual identities of the recipients of their data, marking an obligation for controllers to provide this information. This further tailors the response to the user’s original question, stipulating a legal precedent that data subjects can request and should receive information about specific recipients unless specific circumstances make this unfeasible or the request is unfounded or excessive.