Examination of Right to Rectification complaints
30th April 2019
In light of increased awareness of the rights granted to individuals under the new data protection legislation, this note intends to clarify aspects of the right to rectification of personal data. In particular, this note examines the case of recording of names of individuals that contain diacritical marks (for example, fadas in the Irish language).
Article 5(1)(d) of the General Data Protection Regulation (GDPR) states that: “Personal data shall be … accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay.”
Article 16 GDPR states: “The data subject shall have the right to obtain from the data controller without undue delay the rectification of inaccurate personal data concerning him or her. Taking into account the purposes of processing, the data subject shall have the right to have incomplete personal data completed, including by means of providing a supplementary statement.”
Individuals have a right to rectification of their personal data under data protection legislation. What the right to rectification means in practice will depend on the circumstances of each case and the Data Protection Commission (DPC) examines each case that comes before it on its individual merits.
In general, data controllers will be required to take all reasonable steps to ensure the accuracy of personal data, taking account of the circumstances of the case, the nature of the personal data and, in particular, the purposes for which they are processed.
In respect of complaints received by the DPC in relation to the recording of a name without diacritical marks, e.g. the síneadh fada in the Irish language, consideration has to be given, in light of Article 5(1)(d) and Article 16 GDPR, to whether the recording of a name without diacritical marks is deemed to be inaccurate, having regard to the purposes for which the data (in this case, a data subject’s name) are processed.
Purposes of Processing
The notion of accuracy has to be interpreted in light of Article 5(1)(d) of the GDPR which states that every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay. In this regard, consideration has to be given as to whether the name appears in an isolated environment or whether there are other unique identifying factors associated with the personal data in question. The Commission must consider if the purposes of processing the data, in the absence of diacritical marks, is still being achieved without the diacritical marks being present.
The Data Subject’s Fundamental Rights
It must be also considered if a person’s fundamental right to data protection is affected by the processing of the personal data without the diacritical marks. Article 8(1) of the Charter of Fundamental Rights of the European Union recognises that everyone has the right to the protection of personal data concerning him or her. Article 8(2) of the Charter recognises the right of access to one’s personal data and the right to have such data rectified. This right is not absolute and may be limited in accordance with Article 52 of the Charter.
In a related context, the European Court of Human Rights has concluded that the omission of diacritical marks from a person’s name in certain official documents did not entail a breach of the right to private and family life guaranteed under Article 8 of the European Convention on Human Rights: see, for example, Šiškins and Šiškina v Latvia (Application no. 59727/00, 8 November 2001).
The Official Languages Act
The Commission has consulted with An Coimisinéir Teanga and notes that the Official Languages Act 2003 does not impose an obligation on public bodies to record one’s name or address with diacritical marks such as fadas.
Views of other European Union Supervisory Authorities
The Commission liaised with our counterpart supervisory authorities in the European Union in relation to the inability of certain data controllers’ systems to record diacritical marks when documenting an individual’s name and the effect this may have on the accuracy of that recording. In this process, supervisory authorities expressed the view that the right to rectification was not absolute and that consideration must be given to the particular scenario in which the issue of the non-recording of diacritical marks arises. In particular, weighty consideration must be given to the purposes of the processing that is taking place and whether the alleged inaccurate data is used in an isolated environment or if it is used in conjunction with other personal identifiers.
This note is for guidance purposes only and is not binding on the Commission in its consideration of any concern or complaint, which must be examined, in each case, on its individual merits.