Romana Tomc

Text proposed by the Commission

Amendment

(32a) The possibility of drawing conclusions regarding a data subject's health status through the combination, analysis or contextual interpretation of other data should not, in itself, result in the classification of such data as data concerning health for the purposes of Article 9. Data should only fall within the special category referred to in Article 9(1) where it directly and inherently discloses information concerning health, and not merely because such information could, in principle, be derived from it by a third party through further processing, enrichment or analysis.

noyb's comment:

The amendment restrains the scope of the definition in Article 9.

#310 Recital 33 a (new)

Authored by

Text proposed by the Commission

Amendment

(33a) To ensure legal certainty and support the responsible development and use of artificial intelligence in the Union, it should be clarified that processing of personal data in the context of development, deployment, training, testing, operation and improvement of AI systems or models, including related products and services, may constitute a lawful ground under this Regulation where the conditions laid down in Article 9(2), point (k), are met.

noyb's comment:

The amendment goes further than the Commission's proposal.

#321 Recital 34

Authored by

Text proposed by the Commission

(34) Biometric data, as defined in Article 4(14) of Regulation (EU) 2016/679, means processing of certain characteristics of a natural person through a specific technical means and which allows or confirms the unique identification of that person. The notion of biometric data includes two distinct functions, namely the identification of a natural person or the verification (also called authentication) of his or her claimed identity, both of which rely on different technical processes. The identification process is based on a ‘one-to-many’ search of the data subject’s biometric data in a database, while the verification process is based on a ‘one-to-one’ comparison of biometric data provided by the data subject, who is thereby claiming his or her identity. Derogating from the prohibition to process biometric data under Article 9(1) of the Regulation should also be allowed where the verification of the claimed identity of the data subject is necessary for a purpose pursued by the controller, and suitable safeguards apply to enable the data subject to have sole control of the verification process. For example, where the biometric data are securely stored solely at the side of the data subject or are securely stored at the side of the controller in a state-of-the-art encrypted form and the encryption key or equivalent means is held solely by the data subject, that processing is not likely to create significant risks to his or her fundamental rights and freedoms. The controller does not gain knowledge of the biometric data or only for a very limited time during the verification process.

Amendment

(34) Biometric data, as defined in Article 4(14) of Regulation (EU) 2016/679, means processing of certain characteristics of a natural person through a specific technical means and which allows or confirms the unique identification of that person. Derogating from the prohibition to process biometric data under Article 9(1) of the Regulation should be allowed where the data subject is offered a non-biometric alternative and suitable safeguards are implemented to ensure fundamental rights of the data subject are adequately protected through the implementation of the necessary safeguards. For example, where the biometric data are securely stored solely by the device the side of the data subject, or the biometric data is are securely stored at the side of the controller in a state-of-the-art encrypted form and the encryption key or equivalent means is held solely by the data subject, and subject to measures ensuring the overall security of the processing, including during the enrolment phase of data subject and at the time when the data subject agrees to share the biometric data or encryption key. Other examples of appropriate safeguards are ensuring that end-to-end encryption, or similar state of the art technology, is used when data are transmitted over a communication channel and providing data subjects with the possibility to securely erase their biometric data in accordance with Article 17 of Regulation (EU) 2016/679.

noyb's comment:

The amendment almost goes back to a consent requirement, like under the current text, and includes an obligation to provide a less intrusive alternative.

#467 Recital 46

Authored by

Text proposed by the Commission

(46) Data subjects should have the possibility to rely on automated and machine-readable indications of their choice to consent or refuse a consent request or object to the processing of data. Such means should follow the state of the art. They can be implemented in the settings of a web browser or in the EU Digital Identity Wallet as set out by Regulation (EU) 914/2014, or any other adequate means. Rules set out in this Regulation should support the emergence of market-driven solutions with appropriate interfaces. The controller should be obliged to respect automated and machine-readable indications of data subject’s choices once there are available standards. In light of the importance of independent journalism in a democratic society and in order not to undermine the economic basis for that, media service providers should not be obliged to respect the machine-readable indications of data subject’s choices. The obligation for providers of web browsers to provide the technical means for data subjects to make choices with respect to the processing should not undermine the possibility for media service providers to request consent by data subjects.

Amendment

noyb's comment:

Goes back beyond the Commission proposal. Tries to grant legislative powers to Media Service Providers?!

#943 Article 4 – point 1 – second part (Article 3 – paragraph 1 – point 1 – point a)

Authored by

Regulation (EU) 2016/679
Article 4 – point 1 – second part

Text proposed by the Commission

Information relating to a natural person is not necessarily personal data for every other person or entity, merely because another entity can identify that natural person. Information shall not be personal for a given entity where that entity cannot identify the natural person to whom the information relates, taking into account the means reasonably likely to be used by that entity. Such information does not become personal for that entity merely because a potential subsequent recipient has means reasonably likely to be used to identify the natural person to whom the information relates.

Amendment

Information relating to a natural person, is not personal data for every other person or entity, merely because another entity can identify that natural person. Information shall not be personal for a given entity where that entity cannot identify the natural person to whom the information relates, taking into account the means reasonably likely to be used by that entity. That assessment shall take into account objective factors, including but not limited to costs, time, available technology and the legal means available to that entity. Such information does not become personal for that entity merely because a potential subsequent recipient has means reasonably likely to be used to identify the natural person to whom the information relates.

noyb's comment:

The amendment does not materially change the Commission's proposal, thus overall remains a decrease of protection compared to the current Article 4(1).

#948 Article 4 – point 15 (Article 3 – paragraph 1 – point 1 – point a)

Authored by

Regulation (EU) 2016/679
Article 4 – point 15

Text proposed by the Commission

Amendment

(15) ‘data concerning health’ means personal data related to the physical or mental health of a natural person, including the provision of health care services, which reveal information about his or her health status; Data that merely allow such information to be inferred indirectly shall not be considered data concerning health;

noyb's comment:

Lowering the protections for health data (e.g. person buying HIV medicine would not be covered anymore under Article 9 because the person could buy it for someone else).

#953 Article 4 – point 33 (Article 3 – paragraph 1 – point 1 – point b)

Authored by

Regulation (EU) 2016/679
Article 4 – point 33

Text proposed by the Commission

(33) for ‘electronic communications networks’ the definition of Article 2(1) of Directive (EU) 2018/1972 shall apply;

Amendment

(33) electronic communications networks’ means transmission systems as defined in of Article 2(1) of Directive (EU) 2018/1972;

#971 Article 4 – point 38 (Article 3 – paragraph 1 – point 1 – point b)

Authored by

Regulation (EU) 2016/679
Article 4 – point 38

Text proposed by the Commission

(38) “scientific research” means any research which can also support innovation, such as technological development and demonstration. These actions shall contribute to existing scientific knowledge or apply existing knowledge in novel ways, be carried out with the aim of contributing to the growth of society´s general knowledge and wellbeing and adhere to ethical standards in the relevant research area. This does not exclude that the research may also aim to further a commercial interest.

Amendment

(38) “scientific research” means creative and systematic work undertaken in order to increase the stock of knowledge, either through experimental or theoretical work undertaken primarily to acquire new knowledge of the underlying foundations of phenomena and observable facts without any particular application or use in view, or through original investigation undertaken in order to acquire new knowledge directed primarily towards a specific, practical aim or objective. This does not exclude that the research may also aim to further a commercial interest.

noyb's comment:

like amendment 970

#1045 Article 9 – paragraph 1 (Article 3 – paragraph 1 – point 3 – point a a (new))

Authored by

Regulation (EU) 2016/679
Article 9 – paragraph 1

Text proposed by the Commission

Amendment

(aa) Paragraph 1 of Article 9 is replaced by the following: Processing of personal data that directly reveals in relation to a specific data subject racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health relating to the physical or mental health status of a natural person, or data concerning a natural person's sex life or sexual orientation shall be prohibited.

noyb's comment:

Limitation of scope of Article 9 to information that only "directly" reveals such data.

#1057 Article 9 – paragraph 5 (Article 3 – paragraph 1 – point 3 – point b)

Authored by

Regulation (EU) 2016/679
Article 9 – paragraph 5

Text proposed by the Commission

5. For processing referred to in point (k) of paragraph 2, appropriate organisational and technical measures shall be implemented to avoid v the collection and otherwise processing of special categories of personal data. Where, despite the implementation of such measures, the controller identifies special categories of personal data in the datasets used for training, testing or validation or in the AI system or AI model, the controller shall remove such data. If removal of those data requires disproportionate effort, the controller shall in any event effectively protect without undue delay such data from being used to produce outputs, from being disclosed or otherwise made available to third parties.

Amendment

5. For processing referred to in point (k) of paragraph 2, appropriate organisational and technical measures shall be implemented, in accordance with Article 89 safeguards to limit the processing of special categories of personal data and to mitigate the risk associated with the collection and otherwise processing of special categories of personal data. Where, despite the implementation of such measures, the controller identifies special categories of personal data in the datasets used for training, testing or validation or in the AI system or AI model, the controller shall ensure that such data are processed under one or more of the conditions referred to in paragraph 2, points a to j, or remove such data. If removal of those data requires disproportionate effort, the controller shall in any event effectively protect without undue delay such data from being used to produce outputs, from being disclosed or otherwise made available to third parties.’

noyb's comment:

The amendment proposes to have a "fall-back" Article 9(2) legal basis for residual special categories of personal data which is a wider allowance than initially proposed by the Commission.

#1112 Article 13 – paragraph 4 (Article 3 – paragraph 1 – point 5)

Authored by

Regulation (EU) 2026/679
Article 13 – paragraph 4

Text proposed by the Commission

4. Paragraphs 1, 2 and 3 shall not apply where the personal data have been collected in the context of a clear and circumscribed relationship between data subjects and a controller exercising an activity that is not data-intensive and there are reasonable grounds to assume that the data subject already has the information referred to in points (a) and (c) of paragraph 1, unless the controller transmits the data to other recipients or categories of recipients, transfers the data to a third country, carries out automated decision-making, including profiling, referred to in Article 22(1), or the processing is likely to result in a high risk to the rights and freedoms of data subjects within the meaning of Article 35.

Amendment

4. Paragraphs 1, 2 and 3 shall not apply where and insofar as the data subject already has the information or where the personal data have been collected in the context of a clear and circumscribed relationship between data subjects and a controller exercising an activity that is not data-intensive and there are reasonable grounds to assume that the data subject already has the information referred to in points (a) and (c) of paragraph 1, unless the controller transmits the data to other recipients or categories of recipients, transfers the data to a third country, carries out automated decision-making, including profiling, referred to in Article 22(1), or the processing is likely to result in a high risk to the rights and freedoms of data subjects within the meaning of Article 35.’

noyb's comment:

Small amendments to the Commission's proposal. Mainly clarififying that the proposal provides for an additional exemption. A lack of information typcially violates the "fairness" principle in Article 8(2) of the Charter.

#1123 Article 13 – paragraph 5 (Article 3 – paragraph 1 – point 6)

Authored by

Regulation (EU) 2016/679
Article 13 – paragraph 5

Text proposed by the Commission

5. When the processing takes place for scientific research purposes and the provision of information referred to under paragraphs 1, 2 and 3 proves impossible or would involve a disproportionate effort subject to the conditions and safeguards referred to in Article 89(1) or in so far as the obligation referred to in paragraph 1 of this Article is likely to render impossible or seriously impair the achievement of the objectives of that processing, the controller does not need to provide the information referred to under paragraphs 1, 2 and 3. In such cases the controller shall take appropriate measures to protect the data subject's rights and freedoms and legitimate interests, including making the information publicly available.

Amendment

5. When the processing takes place for scientific research purposes, including scientific research in the public interest aiming to further a commercial interest, and the provision of information referred to under paragraphs 1, 2 and 3 proves impossible or would involve a disproportionate effort, including cases where the change of purpose could not have been anticipated at the time of collection, subject to the conditions and safeguards referred to in Article 89(1) or in so far as the obligation referred to in paragraph 1 of this Article is likely to render impossible or seriously impair the achievement of the objectives of that processing, the controller does not need to provide the information referred to under paragraphs 1, 2 and 3. In such cases the controller shall take appropriate measures to protect the data subject's rights and freedoms and legitimate interests, including making the information publicly available. This scenario shall apply equally to the obligations under Article 14(5)(b).

noyb's comment:

This proposal builds upon the Commission's proposal, but even decreases the level of privacy in those cases. It may violate the purpose limitation and fairness principle in Article 8(2) of the Charter.

#1192 Article 33 – paragraph 6 (Article 3 – paragraph 1 – point 8 – point c)

Authored by

Regulation (EU) 2016/679
Article 33 – paragraph 6

Text proposed by the Commission

6. The Board shall prepare and transmit to the Commission a proposal for a common template for notifying a personal data breach to the competent supervisory authority referred to in paragraph 1 as well as for a list of the circumstances in which a personal data breach is likely to result in a high risk to the rights and freedoms of a natural person. The proposals shall be submitted to the Commission within [OP date = nine months of the entry into application of this Regulation]. The Commission after due consideration reviews it, as necessary, and is empowered to adopt it by way of an implementing act in accordance with the examination procedure set out in Article 93(2).

Amendment

6. The Board shall establish and make public common template for notifying a personal data breach to the competent supervisory authority referred to in paragraph 1 as well as for a list of the circumstances in which a personal data breach is likely to result in a high risk to the rights and freedoms of a natural person and a list of the circumstances in which it is not likely to result in such a high risk.. The template and lists shall be available to the Commission within [OP date = nine months of the entry into application of this Regulation]. The Commission after due consideration reviews it, as necessary, and is empowered to adopt it by way of an implementing act in accordance with the examination procedure set out in Article 93(2). 7. The template and the list referred to in paragraph 6 shall be reviewed at least every three years and updated where necessary. The Board shall submit its assessment and possible proposals for updates to the Commission in due time. The Commission after due consideration of the proposals reviews them and is empowered to adopt any updates following the procedure in paragraph 6.’

noyb's comment:

This amendment, in particular, follows some considerations of the EDPB/EDPS opinion and adds the creation of a white-list the documents the Board shall establish, providing increased legal certainty.

#1209 Article 35 – paragraph 4 (Article 3 – paragraph 1 – point 9 – point a)

Authored by

Regulation (EU) 2016/679
Article 35 – paragraph 4

Text proposed by the Commission

4. The Board shall prepare and transmit to the Commission a proposal for a list of the kind of processing operations which are subject to the requirement for a data protection impact assessment pursuant to paragraph 1.

Amendment

4. The Board shall establish and make public a list of the kind of processing operations which are subject to the requirement for a data protection impact assessment pursuant to paragraph 1.

noyb's comment:

Following the considerations of the EDPB/EDPS opinion this proposal shifts competences to the EDPB. No significant effect on the level of privacy or simplification.

#1214 Article 35 – paragraph 5 (Article 3 – paragraph 1 – point 9 – point a)

Authored by

Regulation (EU) 2016/679
Article 35 – paragraph 5

Text proposed by the Commission

5. The Board shall prepare and transmit to the Commission a proposal for a list of the kind of processing operations for which no data protection impact assessment is required.

Amendment

5. Processing operations not covered by the list in paragraph 4 shall not be subject to the requirement for a data protection impact assessment pursuant to paragraph 1.

noyb's comment:

This template would reduce factually reduce the cases in which a controller would prepare a DPIA, resulting in a lower level of data protection but less administrative work for controllers.

#1217 Article 35 – paragraph 6 (Article 3 – paragraph 1 – point 9 – point a)

Authored by

Regulation (EU) 2016/679
Article 35 – paragraph 6

Text proposed by the Commission

6. The Board shall prepare and transmit to the Commission a proposal for a common template and a common methodology for conducting data protection impact assessments.

Amendment

6. The Board shall establish a common template and a common methodology for conducting data protection impact assessments.

noyb's comment:

Following the considerations of the EDPB/EDPS opinion this proposal shifts competences to the EDPB. No significant effect on the level of privacy or simplification.

#1224 Article 35 – paragraph 6a (Article 3 – paragraph 1 – point 9 – point b)

Authored by

Regulation (EU) 2016/679
Article 35 – paragraph 6a

Text proposed by the Commission

6a. The proposals for the lists referred to in paragraphs 4 and 5 and for the template and methodology referred to in paragraph 6 shall be submitted to the Commission within [OP date = 9 months of the entry into application of this Regulation]. The Commission after due consideration reviews them, as necessary, and is empowered to adopt them by way of an implementing act in accordance with the examination procedure set out in Article 93(2).

Amendment

6a. The proposal for the list referred to in paragraph 4 and for the template and methodology referred to in paragraph within [OP date = 9 months of the entry into application of this Regulation]. The Commission after due consideration reviews them, as necessary, and is empowered to adopt them by way of an implementing act in accordance with the examination procedure set out in Article 93(2). That list shall be based on convergence area from national authorities and shall not introduce new categories of processing operations that go beyond existing obligations under this Regulation. Processing operations lawfully in place at the time of their initiation shall not be subject to a retroactive obligation to carry out a data protection impact assessment as a result of the adoption of the harmonised list.

noyb's comment:

This proposal (apparently subject to editorial mistakes) tries to narrow the scope of potential processing activities subject to a DPIA; therefore, it lowers the level of data protection. It also introduces some legal uncertainty, offsetting a potential reduction in administrative workload.

#1254 Article 41a – paragraph 1 (Article 3 – paragraph 1 – point 10)

Authored by

Regulation (EU) 2016/679
Article 41a – paragraph 1

Text proposed by the Commission

(1) The Commission may adopt implementing acts to specify means and criteria to determine whether data resulting from pseudonymisation no longer constitutes personal data for certain entities.

Amendment

(1) The Commission may adopt implementing acts to specify technical and organisational measures and criteria supporting controllers in assessing whether data resulting from anonymisation or pseudonymisation no longer constitutes personal data for certain entities and in preventing the risk of re-identification.

noyb's comment:

The amendment improves the Commission's proposal but remains a decrease of protection compared to the current Article 4(1) and 4(6).

#1269 Article 41a – paragraph 2 – point a (Article 3 – paragraph 1 – point 10)

Authored by

Regulation (EU) 2016/679
Article 41a – paragraph 2 – point a

Text proposed by the Commission

(a) assess the state of the art of available techniques;

Amendment

(a) assess the state of the art of available techniques, such as privacy- enhancing technologies;

noyb's comment:

Does not bring material change in regards to the Commission's proposal. The proposal stays overall as a decrease of protection for data subjects' fundamental rights. Such decisions are typcially reserved to SAs under Article 8(3) of the Charter.

#1275 Article 41a – paragraph 2 – point b (Article 3 – paragraph 1 – point 10)

Authored by

Regulation (EU) 2016/679
Article 41a – paragraph 2 – point b

Text proposed by the Commission

(b) develop criteria and or categories for controllers and recipients to assess the risk of re-identification in relation to typical recipients of data.

Amendment

(b) develop criteria and or categories for controllers and recipients to assess the risk of re-identification in relation to typical recipients of data, taking into account objective factors such as cost, amount of time required, available technology, legal obligations.

noyb's comment:

#1281 Article 41a – paragraph 2 – point ba (new) (Article 3 – paragraph 1 – point 10)

Authored by

Regulation (EU) 2016/679
Article 41a – paragraph 2 – point ba (new)

Text proposed by the Commission

Amendment

(ba) In Article 41a, paragraph 2, the following point ba is added: '(ba) assess technical, administrative, organisational and contractual measures that can prevent the risk of re-identification.'

noyb's comment:

Does not add anything material towards the Commission's proposal. The proposal stays overall as a decrease of protection for data subjects' fundamental rights. Such decisions are typcially reserved to SAs under Article 8(3) of the Charter.

#1289 Article 41a – paragraph 3 (Article 3 – paragraph 1 – point 10)

Authored by

Regulation (EU) 2016/679
Article 41a – paragraph 3

Text proposed by the Commission

(3) The implementation of the means and criteria outlined in an implementing act may be used as an element to demonstrate that data cannot lead to reidentification of the data subjects.

Amendment

(3) The implementation of the technical and organisational measures and criteria outlined in an implementing act may be used as an element to demonstrate that pseudonymised data do not lead to reidentification of the data subjects in a specific case.

noyb's comment:

#1312 Article 57 – paragraph 1 – point aa (new) (Article 3 – paragraph 1 – point 11 – point a a (new))

Authored by

Regulation (EU) 2016/679
Article 57 – paragraph 1 – point aa (new)

Text proposed by the Commission

Amendment

(aa) In Article 57, paragraph 1, the following point aa is inserted: '(aa) handle complaints lodged by a data subject, or by a body, organisation or association in accordance with Article 80 and investigate, in the case of a complaint by a data subject at its discretion, to the extent approriate, the subject matter of the complaint and inform the complainant of the progress and the outcome of the investigation within a reasonable period, in particular if further investigation or coordination with another supervisor authority is necessary;'

noyb's comment:

The amendment gives more discretion to supervisory authorities, which could lead to less complaint handling. The lack of a remedy (beyond civil courts) could violate Article 8(3) and 47 of the Charter.

#1314 Article 57 – paragraph 1 – va (Article 3 – paragraph 1 – point 11 – point a b (new))

Authored by

Regulation (EU) 2016/679
Article 57 – paragraph 1 – va

Text proposed by the Commission

Amendment

(ab) In Article 57, paragraph 1, the following point va is added: '(va) set up regulatory sandboxes to facilitate testing the compliance of specific techniques or technological solutions to be used for the data processing activities with the obligations under this Regulation or whether the data processing results in data that would be exempt from this Regulation.'

noyb's comment:

The amendment provides for compliance tools to be put in place by the supervisory authorities, ultimately shifting compliance to them. The fact that a full excemption from the Regulation is granted would undermine the rights under the GDPR.

#1326 Article 70 – paragraph 1 – point ha (Article 3 – paragraph 1 – point 14)

Authored by

Regulation (EU) 2016/679
Article 70 – paragraph 1 – point ha

Text proposed by the Commission

Amendment

(ha) prepare and transmit to the Commission a proposal for a list of the kind of processing operations which are subject to the requirement for a data protection impact assessment and for which no data protection impact assessment is required, pursuant to Article establish a list of the kind of processing operations which are subject to the requirement for a data protection impact assessment, pursuant to Article 35.

noyb's comment:

On its own, this amendment has no significant impact. Clear lists simplify the application of the law.

#1331 Article 70 – paragraph 1 – point hb (Article 3 – paragraph 1 – point 14)

Authored by

Regulation (EU) 2016/679
Article 70 – paragraph 1 – point hb

Text proposed by the Commission

(hb) prepare and transmit to the Commission a proposal for a common template and a common methodology for conducting data protection impact assessments, pursuant to Article 35.

Amendment

(hb) establish a common template and a common methodology for conducting data protection impact assessments, pursuant to Article 35.

noyb's comment:

This amendment seems to follow some considerations of the EDPB/EDPS opinion and the shift of competences to the EDPB. Clear templates simplify the application of the law.

#1336 Article 70 – paragraph 1 – point hc (Article 3 – paragraph 1 – point 14)

Authored by

Regulation (EU) 2016/679
Article 70 – paragraph 1 – point hc

Text proposed by the Commission

(hc) prepare and transmit to the Commission a proposal for a common template for notifying a personal data breach to the competent supervisory authority as well as for a list of the circumstances in which a personal data breach is likely to result in a high risk to the rights and freedoms of a natural person pursuant to Article 33

Amendment

(hc) establish a common template for notifying a personal data breach to the competent supervisory authority as well as for a list of the circumstances in which a personal data breach is likely to result in a high risk to the rights and freedoms of a natural person pursuant to Article 33

noyb's comment:

This amendment seems to follow some considerations of the EDPB/EDPS opinion and the shift of competences to the EDPB. Clear templates simplify the application of the law.

#1394 Article 88a – paragraph 3 – point c (Article 3 – paragraph 1 – point 15)

Authored by

Regulation (EU) 2016/679
Article 88a – paragraph 3 – point c

Text proposed by the Commission

(c) creating aggregated information about the usage of an online service to measure the audience of such a service, where it is carried out by the controller of that online service solely for its own use;

Amendment

(c) (c) creating information about the usage of an online service to measure the audience of such a service, where it is carried out at the direction of the controller of that online service, or by a third party acting on behalf of the controller;

noyb's comment:

Broadens the new exception proposed.

#1405 Article 88a – paragraph 3 – point da (new) (Article 3 – paragraph 1 – point 15)

Authored by

Regulation (EU) 2016/679
Article 88a – paragraph 3 – point da (new)

Text proposed by the Commission

Amendment

(da) In Article 88a, paragraph 3, the following point da is added: '(da) ‘legitimate interests’ according to Article 6(1)(f) of this regulation provided that the controller applies Privacy Enhancing Technologies (PETs) in accordance with the technical standards adopted pursuant to Article 25a. This point shall not apply to processing operations that involve tracking or profiling a data subject's behaviour for the purposes of behavioural advertising, where the advertising itself is directly generating revenue for the controller, or where there is no direct relationship with the data subject.'

noyb's comment:

New exception introduced. Very vague, mixing different concepts (personal data, legitimate interest and PETs).

#1412 Article 88a – paragraph 3 – point db (new) (Article 3 – paragraph 1 – point 15)

Authored by

Regulation (EU) 2016/679
Article 88a – paragraph 3 – point db (new)

Text proposed by the Commission

Amendment

(db) In Article 88a, paragraph 3, the following point db is added: '(db) performing audience measurement in compliance with Article 24 of Regulation (EU) 2024/1083.'

noyb's comment:

New exception proposed.

#1427 Article 88a – paragraph 4 – point a (Article 3 – paragraph 1 – point 15)

Authored by

Regulation (EU) 2016/679
Article 88a – paragraph 4 – point a

Text proposed by the Commission

(a) the data subject shall be able to refuse requests for consent in an easy and intelligible manner with a single-click button or equivalent means;

Amendment

(a) the data subject shall be able to refuse requests for consent in an easy and intelligible manner, or be presented with the option to decline consent and proceed to a paid alternative; 

noyb's comment:

Makes the refusal of consent dependent on a payment.

#1436 Article 88a – paragraph 4 – point c (Article 3 – paragraph 1 – point 15)

Authored by

Regulation (EU) 2016/679
Article 88a – paragraph 4 – point c

Text proposed by the Commission

(c) if the data subject declines a request for consent, the controller shall not make a new request for consent for the same purpose for a period of at least six months.

Amendment

(c) Where data subject refuse request for consent presented by media service providers, Media service providers shall be able to offer data subjects an equivalent alternative that is not accompanied by the processing of personal data for audience-based advertising purposes, where appropriate for a reasonable fee.

noyb's comment:

Limits the proposal of the Commission to media service providers and rewrites it to introduce payment for refusing consent, but is unclear about the details. Questionable from an equality before the law perspective.

#1455 Article 88b – title (Article 3 – paragraph 1 – point 15)

Authored by

Regulation (EU) 2016/679
Article 88b – title

Text proposed by the Commission

Automated and machine-readable indications of data subject’s choices with respect to processing of personal data in the terminal equipment of natural persons

Amendment

Voluntary automated and machine-readable indications of data subject’s choices with respect to processing of personal data in the terminal equipment of natural persons

noyb's comment:

Significantly weakens the positive Commission proposal. A voluntary system would be chaotic and hardly functioning (see "DNT").

#1550 Article 88b – paragraph 7a (new) (Article 3 – paragraph 1 – point 15)

Authored by

Regulation (EU) 2016/679
Article 88b – paragraph 7a (new)

Text proposed by the Commission

Amendment

(7a) In Article 88b, the following paragrpah is added: '7a. The Commission shall, by [insert date = 3 years after the date of entry into force of this Regulation], submit a report to the European Parliament and the Council on the functioning of this Article, including an assessment of: (a) the impact on user choice and competition; (b) the effectiveness of machine-readable indications in reducing consent fatigue; (c) the emergence of new gatekeeper risks; (d) the impact on European media service providers; and (e) the need for legislative amendment.'

noyb's comment:

Reporting duties of the Commission.

#1561 Article 88c – paragraph 1 (Article 3 – paragraph 1 – point 15)

Authored by

Regulation (EU) 2016/679
Article 88c – paragraph 1

Text proposed by the Commission

Where the processing of personal data is necessary for the interests of the controller in the context of the development and operation of an AI system as defined in Article 3, point (1), of Regulation (EU) 2024/1689 or an AI model, such processing may be pursued for legitimate interests within the meaning of Article 6(1)(f) of Regulation (EU) 2016/679, where appropriate, except where other Union or national laws explicitly require consent, and where such interests are overridden by the interests, or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

Amendment

Where the processing of personal data is necessary for the interests of the controller, or a third party, in the context of the development and operation of an AI system as defined in Article 3, point (1), of Regulation (EU) 2024/1689 or an AI model, including a general-purpose AI model as defined in Article 3, point (63) of Regulation (E) 2024/1689, such processing may be pursued for legitimate interests within the meaning of Article 6(1)(f) of this Regulation except where such interests are overridden by the interests, or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child and except where other Union explicitly require consent. The processing of personal data in the context of the development and operation of an AI system may also be based for the performance of a task carried out by public authorities in the public interest pursuant to Article 6, paragraph 1, point (e) and paragraph 2.

noyb's comment:

The amendment rephrases the Commission's proposal.

#1587 Article 88c – paragraph 2 (Article 3 – paragraph 1 – point 15)

Authored by

Regulation (EU) 2016/679
Article 88c – paragraph 2

Text proposed by the Commission

Any such processing shall be subject to appropriate organisational, technical measures and safeguards for the rights and freedoms of the data subject, such as to ensure respect of data minimisation during the stage of selection of sources and the training and testing of AI an system or AI model, to protect against non-disclosure of residually retained data in the AI system or AI model to ensure enhanced transparency to data subjects and providing data subjects with an unconditional right to object to the processing of their personal data.

Amendment

Any such processing shall be subject to appropriate organisational, technical and legal measures and safeguards for the rights and freedoms of the data subject, such as to ensure respect of data minimisation during the stage of selection of sources and the training and testing of AI an system or AI model, to protect against non-disclosure of residually retained data in the AI system or AI model to ensure enhanced transparency to data subjects.

noyb's comment:

The amendment pushes against the right to object in proposed Article 88c.