12 GDPR-relevant amendments by Ondřej Krutílek
#241 Recital 28
Authored by
Text proposed by the Commission
(28) In order to assess whether research meets the conditions of scientific research for the purpose of this Regulation, account can be taken of elements such as methodological and systematic approach applied while conducting the research in the specific area. Research and technology development should be conducted in academic, industry and other settings, including small and medium-sized undertakings, (Article 179(2) TFEU) and should be always of a of high quality and should adhere to the principles of principles of reliability, honesty, respect and accountability (verifiability).Amendment
(28) In order to assess whether research meets the conditions of scientific research for the purpose of this Regulation, account can be taken of elements such as methodological and systematic approach applied while conducting the research in the specific area. Research and technology development should be conducted in academic, industry and other settings, including small and medium-sized undertakings, (Article 179(2) TFEU) and should be always of a of high quality and should adhere to the principles of principles of honesty, respect and verifiability.Justification
It might be too much to require the research to be reliable, in particular on the scientific frontier. Verifiability in the Popperian sense (falsifiability) should be required, however questionable is whether adding sometimes unclear and sometimes contradictory notions of “autonomy” and “oversight” or “independence” and “accountability” would clarify the definition and simplify its usage.
#262 Recital 30
Authored by
Text proposed by the Commission
(30) Trustworthy AI is key in providing for economic growth and supporting innovation with socially beneficial outcomes. The development and use of AI systems and the underlying models such as large language models and generative video models rely on data, including personal data, in various phases in the AI lifecycle, such as the training, testing and validation phase and may in some instances be retained in the AI system or the AI model. The processing of personal data in this context may therefore be carried out for purposes of a legitimate interest within the meaning of Article 6 of Regulation (EU) 2016/679, where appropriate. This does not affect the obligation of the controller to ensure that the development or use (deployment) of AI in a specific context or for specific purposes complies with other Union or national law, or to ensure compliance where its use is explicitly prohibited by law. It also does not affect its obligation to ensure that all other conditions of Article 6(1)(f) of Regulation (EU) 2016/679 as well as all other requirements and principles of that Regulation are met.Amendment
(30) Trustworthy AI is key in providing for economic growth and supporting innovation with socially beneficial outcomes. The development and use of AI systems and the underlying models such as large language models and generative video models rely on data, including personal data, in various phases in the AI lifecycle, such as the training, testing and validation phase and may in some instances be retained in the AI system or the AI model. The processing of personal data in this context may therefore be carried out for purposes of a legitimate interest of the controller or a third party within the meaning of Article 6(1)(f) of Regulation (EU) 2016/679, where appropriate. This does not affect the obligation of the controller to ensure that the development or use (deployment) of AI in a specific context or for specific purposes complies with other Union or national law, or to ensure compliance where its use is explicitly prohibited by law. It also does not affect its obligation to ensure that all other conditions of Article 6(1)(f) of Regulation (EU) 2016/679 as well as all other requirements and principles of that Regulation are met.Justification
This amendment aligns Recital (30) with Article 88c by clarifying that legitimate interests under Article 6(1)(f) GDPR may be pursued by both controllers and third parties. It removes ambiguity for AI supply chains, ensures consistency between the recital and the operative text, and replaces the broad reference to "Article 6" with the more precise reference to Article 6(1)(f), improving legal certainty and coherent interpretation.
noyb's comment:
The amendment does not add/remove something from the Commission's proposal, which generally lowers the level of protection.
#278 Recital 31
Authored by
Text proposed by the Commission
(31) When the controller, in the light of the risk-based approach which informs the scalability of the obligations under this Regulation, is balancing the legitimate interest pursued by the controller or a third party and the interests, rights and freedoms of the data subject, consideration should be given to whether the interest pursued by the controller is beneficial for the data subject and society at large, which may for instance be the case where the processing of personal data is necessary for detecting and removing bias, thereby protecting data subjects from discrimination, or where the processing of personal data is aiming at ensuring accurate and safe outputs for a beneficial use, such as to improve accessibility to certain services. Consideration should also, among others, be given to reasonable expectations of the data subject based on their relationship with the controller, appropriate safeguards to minimise the impact on data subjects’ rights such as providing enhanced transparency to data subjects, providing an unconditional right to object to the processing of their personal data, respecting technical indications embedded in a service limiting the use of data for AI development by third parties, the use of other state of the art privacy preserving techniques for AI training and appropriate technical measures to effectively minimise risks resulting, for example, from regurgitation, data leakage and other intended or foreseeable actions.Amendment
(31) When the controller, in the light of the risk-based approach which informs the scalability of the obligations under this Regulation, is balancing the legitimate interest pursued by the controller or a third party and the interests, rights and freedoms of the data subject, consideration should be given to whether the interest pursued by the controller is beneficial for the data subject and society at large, which may for instance be the case where the processing of personal data is necessary for detecting and removing bias, thereby protecting data subjects from discrimination, or where the processing of personal data is aiming at ensuring accurate and safe outputs for a beneficial use, such as to improve accessibility to certain services. Consideration should also, among others, be given to reasonable expectations of the data subject based on their relationship with the controller, appropriate safeguards to minimise the impact on data subjects' rights such as providing enhanced transparency to data subjects, ensuring that data subjects are informed of their right to object to the processing of their personal data in accordance with Article 21 of Regulation (EU) 2016/679, respecting technical indications embedded in a service limiting the use of data for AI development by third parties, the use of other state of the art privacy preserving techniques for AI training and appropriate technical measures to effectively minimise risks resulting, for example, from regurgitation, data leakage and other intended or foreseeable actions.Justification
This amendment aligns Recital (31) with Article 88c and the GDPR by removing the reference to an "unconditional right to object." Article 21 GDPR already regulates the right to object with defined conditions and limitations. Keeping the current recital would create inconsistency with the operative provisions, undermine legal certainty, and conflict with the Data Omnibus objective of providing a clear and coherent legal framework.
noyb's comment:
The proposed amendment suggesting to remove the unconditional character of the right to object to AI processing operations diminishes the data subjects' control over their personal data.
#308 Recital 33
Authored by
Text proposed by the Commission
(33) The development of certain AI systems and AI models may involve the collection of large amounts of data, including personal data and special categories thereof. Special categories of personal data may residually exist in the training, testing or validation data sets or be retained in the AI system or the AI model, although the special categories of personal data are not necessary for the purpose of the processing. In order not to disproportionately hinder the development and operation of AI and taking into account the capabilities of the controller to identify and remove special categories of personal data, derogating from the prohibition on processing special categories of personal data under Article 9(2) of Regulation (EU) 2016/679 should be allowed. The derogation should only apply where the controller has implemented appropriate technical and organisational measures in an effective manner to avoid the processing of those data, takes the appropriate measures during the entire lifecycle of an AI system or AI model and, once it identifies such data, effectively remove them. If removal would require disproportionate effort, notably where the removal of special categories of data memorised in the AI system or AI model would require re-engineering the AI system or AI model, the controller should effectively protect such data from being used to infer outputs, being disclosed or otherwise made available to third parties. This derogation should not apply where the processing of special categories of personal data is necessary for the purpose of the processing. In this case, the controller should rely on the derogations pursuant to Article 9(2)(a) – (j) of Regulation (EU) 2016/679.Amendment
(33) The development of certain AI systems and AI models may involve the collection of large amounts of data, including personal data and special categories thereof. Special categories of personal data may residually exist in the training, testing or validation data sets or be retained in the AI system or the AI model, although the special categories of personal data are not necessary for the purpose of the processing. In order not to disproportionately hinder the development and operation of AI derogating from the prohibition on processing special categories of personal data under Article 9(2) of Regulation (EU) 2016/679 should be allowed. The derogation should only apply where the controller has implemented appropriate technical and organisational measures to mitigate the risk of the processing of those data, takes the appropriate measures during the entire lifecycle of an AI system or AI model and, is notified of or itself identifies such data, implement technically and economically feasible measures to cease processing. If cessation of processing would require disproportionate effort, notably where the cessation of processing of special categories of data memorised in the AI system or AI model would require reengineering the AI system or AI model, the controller should effectively protect such data from being used to infer outputs, being disclosed or otherwise made available to third parties. This derogation should not apply where the processing of special categories of personal data is necessary for the purpose of the processing. In this case, the controller should rely on the derogations pursuant to Article 9(2)(a) – (j) of Regulation (EU) 2016/679.Justification
This amendment aligns Recital (33) with the revised Article 9(5) by replacing obligations to "avoid" and "remove" special categories of personal data with proportionate duties to mitigate risks and cease processing through technically and economically feasible measures. It ensures consistency between the recital and the operative text, prevents overly restrictive interpretation, and clarifies that controllers must act when such data is identified or reported by third parties.
noyb's comment:
This amendment proposes that the controller only implements measures that are "economically feasible".
#972 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 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, including scientific methods, in the relevant research area. This does not exclude that the research may also aim to further a commercial interest.Justification
Generally, the definition should not be too restrictive and prevent innovation. Scientific research is foremostly defined by using scientific methods, which should be explicitly mentioned. The definition should not include restrictive conditions linked to the specific entity conducting the scientific research. The qualification of an activity as scientific research should depend on the nature of the research itself, rather than on the characteristics or status of the organisation carrying it out.
#1055 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 to avoid and mitigate the risk of the collection and otherwise processing of special categories of personal data. Where, despite the implementation of such measures, the is notified of or identifies special categories of personal data relating to specific data subjects in the aforementioned datasets used for training, testing or validation or in the AI system or AI model, the controller shall implement technically and economically feasible measures to cease processing of those special categories of personal data for the purpose of training or developing an AI system or AI model. If cessation of processing 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.Justification
This amendment makes Article 9(5) more practical by replacing the obligation to "avoid" processing special categories of personal data with a proportionate duty to mitigate risks through appropriate technical and organisational measures. It clarifies that controllers must act when such data is identified or reported, and, where deletion is disproportionate, apply technically and economically feasible safeguards. The amendment preserves strong data protection while ensuring legal certainty and practical implementation.
noyb's comment:
The amendment proposes for the controllers only to implement economically feasible measures, thereby proposing a more relaxed approach than the Commission's proposal.
#1255 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 means and criteria to determine whether data resulting from pseudonymisation no longer constitutes personal data for certain entities because those entities are not reasonably likely to identify the natural person.Justification
Generally, the comitology is strongly supported in relation to this issue. Rules of such significance should be adopted in a binding, formal and predictable way to ensure legal certainty for controllers. Soft law in form of EDPB opinion is not acceptable. This is primary concern as regards pseudonymisation; the other proposals just aim to improve on original text.
noyb's comment:
The amendment rephrases the Commission's proposal. The power to make such decisions lies with independet SAs under Article 8(3) of the Charter.
#1274 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 or reasonably foreseeable recipients of data, based on costs, amount of time required, available technology, legal powers and restrictions and all other relevant objective factors.Justification
The implementing acts should not directly determine the notion of personal data, they should include the core requirements on the means and criteria. It should be done by introducing the reason for why the data lose the status of personal data in relation to specific entities in para (1) and by adapting point 2(b) to cover the basic factors contributing to risk of re-identification (according to recital 26 GDPR). “or reasonably foreseeable” is added to address risk-based determination of other than typical or intended recipients.
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.
#1404 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) contextual advertising and related limitation of advertisement display, audience measurement and preventing fraudulent misrepresentation of audience, unless at least one of the following applies: (i) the processing is likely to result in a risk to the rights and freedoms of natural persons; (ii) the processing involves profiling; (iii) personal data are stored at the time when the electronic communication service is not actively used; (iv) personal data are connected with past or future activity of the data subject. ‘Justification
New exemptions are suggested concerning activities that are not based on profiling, i.e. covering low‑risk to the rights and freedoms, non‑profiling activities that do not involve any retention of personal data beyond the user’s active session nor any link to past or future behaviour. This suggestion is inspired by the EDPB/EDPS joint opinion aimed to to create incentives to use less‑intrusive forms of online advertising and to make the rules more proportionate, i.e. allowing some forms of targeted advertising, which is crucial for European publishers and service providers.
noyb's comment:
New exception, many (partly undefined) details to consider as a controller. Lack of legal certainty.
#1567 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, such processing may be pursued for legitimate interests within the meaning of Article 6(1)(f) of Regulation (EU) 2016/679, where appropriate, 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.Justification
This amendment aligns Article 88c with the GDPR by recognising the legitimate interests of both controllers and third parties, avoiding unnecessary restrictions on AI supply chains. It removes references that could reintroduce divergent national rules on consent and an "unconditional right to object," which is already governed by Article 21 GDPR. The amendment preserves data protection while improving legal certainty, consistency, and Single Market harmonisation.
noyb's comment:
The amendment rephrases the Commission's proposal and removes the mention of consent required by other laws.
#1586 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 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 an AI 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 right to object to the processing of their personal data in accordance with Article 21 of Regulation (EU) 2016/679.Justification
This amendment aligns Article 88c with the GDPR by recognising the legitimate interests of both controllers and third parties, avoiding unnecessary restrictions on AI supply chains. It removes references that could reintroduce divergent national rules on consent and an "unconditional right to object," which is already governed by Article 21 GDPR. The amendment preserves data protection while improving legal certainty, consistency, and Single Market harmonisation.
noyb's comment:
The amendment pushes against an unconditional right to object.
#1712 Article 5 – paragraph 3 (Article 5 – paragraph 1 – point 1 a (new))
Authored by
Directive 2002/58/EC
Article 5 – paragraph 3
Present text
3. Member States shall ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information, in accordance with Directive 95/46/EC, inter alia, about the purposes of the processing. This shall not prevent any technical storage or access for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service.Amendment
1a. In Article 5(3), the last sentence is replaced by the following: "3. Member States shall ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information, in accordance with Directive 95/46/EC, inter alia, about the purposes of the processing. This shall not prevent any technical storage or access for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service, or storage of or access to anonymous and necessary information in terminal equipment for the purposes of road safety, transport safety, and accident prevention, including the operation and maintenance of connected vehicles and mobility systems."Justification
The narrow exemptions of Article 5 have led to interpretations that effectively reduce the regime to a “consent-first” model, making even low-risk or anonymous data uses unnecessarily complex. It creates significant difficulties for vehicle manufacturers; any time the onboard telematics unit or sensors send data externally, it may qualify as “accessing/storing information” under Article 5(3). A vehicle is rarely used by a single individual; it may be driven by the owner, a family member, an employee, or a short-term renter, with passengers also potentially implicated.
noyb's comment:
Broader exception thant the current framework, allowing access to data in connected vehicles.